The Death Penalty
in the OSCE Area
Background Paper 2022
Special Focus: the role of lawyers
in capital punishment cases
This paper was prepared by the OSCE’s Oce for Democratic Institutions and Human
Rights (ODIHR). Every eort has been made to ensure that the information contained
in this paper is accurate and impartial.
This paper updates The Death Penalty in the OSCE Area: Background Paper 2021. It is
intended to provide a concise update to highlight changes in the status of the death
penalty in OSCE participating States since the previous publication and to promote con-
structive discussion of the issue. It covers the period from April to March .
All comments or suggestions should be addressed to ODIHR’s Human Rights
Department at oce@odihr.pl.
Published by the OSCE’s Oce for Democratic Institutions
and Human Rights (ODIHR)
Miodowa
- Warsaw
Poland
www.osce.org/odihr
© OSCE/ODIHR
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All rights reserved. The contents of this publication may be freely used and copied
for educational and other non-commercial purposes, provided that any such repro-
duction is accompanied by an acknowledgement of ODIHR as the source.
Designed by Homework
Contents
Introduction
Part I: Introductory Essay
The Role of Defence Lawyers in Capital Cases by Sandra Babcock 8
Part II: The role of lawyers in capital punishment cases
. Methodology
. The right to eective legal representation in capital punishment cases
in law and practice
.. The right to eective legal representation
.. Quality of legal representation
... Funding
... Competency and Experience
... The need for other skills
... Workload
. The independence and impartiality of judges and lawyers
. Secrecy and lack of transparency in proceedings
. The impact of COVID-
. Cross-cutting professional and personal challenges faced by lawyers
.. The psychological impact and availability of support
... Reasons for working on death penalty cases
... Managing emotions and the weight of responsibility
.. Stigma, pressure, hindrance and interference
. Support for Lawyers and steps towards abolition
.. Support for lawyers
.. Steps towards abolition
. Conclusion
The Death Penalty in the OSCE Area: Background Paper 2022
Part III: The situation of the death penalty
in the OSCE region
. Retentionist participating states
.. Belarus
.. United States
. Abolitionist participating states
.. New developments at international and regional levels
on the abolition of the death penalty
.. Participating States’ engagement in national or international
activities relevant to the issue of the death penalty
. De-facto abolitionist participating States
.. Abolitionist for ordinary crimes only
Introduction
Noting the restrictions and safeguards regarding the use of the death penalty adopt-
ed by the international community, as well as the Second Optional Protocol to the
International Covenant on Civil and Political Rights, aiming at the abolition of capi-
tal punishment, OSCE participating States have made a number of commitments re-
lating to the death penalty. They have committed to exchange information on the
question of the abolition of the death penalty and to provide information on the use
of the death penalty to the public. Where the death penalty is still in use, participat-
ing States have agreed that it can be imposed only for the most serious crimes and
only in line with international commitments.
OSCE participating States have also made a number of other commitments relevant
to the application of the death penalty, such as ensuring the right to life, the right to
a fair trial and the absolute prohibition of torture and other cruel, inhuman or de-
grading treatment or punishment.
In accordance with these commitments and its mandate, the OSCE Oce for
Democratic Institutions and Human Rights (ODIHR) monitors trends and new de-
velopments regarding human rights standards and practices among OSCE participat-
ing States related to the death penalty. The ndings are presented each year in the
Background Paper on the Death Penalty in the OSCE Area. The paper is based on
information gathered by ODIHR on the situation of the death penalty in all OSCE
Document of the Copenhagen Meeting of the Conference on the Human Dimension of the OSCE, (here-
aer, Copenhagen Document ), paras. ., . and ..
Ibid., paras. . and .. See also: Concluding Document of the Third Follow-up Meeting, Vienna
November to January , (hereaer, Vienna Document ); Final Document of the Sixteenth
Meeting of the Ministerial Council Helsinki, and December , (hereaer, Helsinki Document ).
Vienna Document , para. , op. cit., note .
Vienna Document , Copenhagen Document , Helsinki Document .
The Death Penalty in the OSCE Area: Background Paper ; The Death Penalty in the OSCE Area:
Background Paper ; The Death Penalty in the OSCE Area: Background Paper ; The Death Penalty
in the OSCE Area: Background Paper ; The Death Penalty in the OSCE Area: Background Paper ;
The Death Penalty in the OSCE Area: Background Paper .
The Death Penalty in the OSCE Area: Background Paper 2022
participating States during the reporting period, incorporating information from in-
ternational and regional human rights bodies, non-governmental organizations and
media reports.
This year’s background paper contains an introductory essay by Sandra Babcock,
Clinical Professor of Law at Cornell Law School and an expert in human rights and
international and comparative law. Part II focuses on the work and experiences of
lawyers in capital punishment cases inside and outside the OSCE region. Part III cov-
ers the status of the death penalty in the OSCE region during the reporting period
from April to March .
Throughout this background paper, an abolitionist state is dened as an OSCE partic
-
ipating State in which there is no death penalty, in law, for any crimes. A de-facto abo-
litionist state is one in which the death penalty is foreseen in law but, in practice, the
punishment is not imposed. A retentionist state is one that continues to implement
this penalty by sentencing and carrying out executions.
The opinions expressed in the essay are hers and do not necessarily reect those of the OSCE or ODIHR.
For more information about Sandra Babcock, please see here.
Part I: Introductory Essay
by Sandra Babcock7
The Role of Defence Lawyers in Capital Cases
Lawyers who defend those facing the death penalty oen receive little sympathy for
their struggles. Their clients have oen caused terrible suering, and lawyers appear
beside those clients in court and defend them against accusations of wrongdoing. Yet
capital defence lawyers ll a vital role in criminal justice systems around the world.
Their presence beside the defendant protects individuals against the excesses of state
power and helps guard against wrongful convictions and death sentences. Without
defence lawyers, criminal prosecutions would be inquisitions.
Yet capital defence lawyers around the world face unique challenges that have largely
escaped the notice of the international community. In contrast to prosecutors, who
receive far more resources and training opportunities and who rely on police o-
cers to assist them in investigating and presenting evidence, defence lawyers in most
countries receive little to no support for investigation, transportation, or expert as-
sistance. On top of the nancial hardships and dicult working conditions, capital
defence lawyers are targets of harassment, government surveillance and public op-
probrium. Lawyers in countries around the world have been arrested, interrogated,
attacked and disbarred for their work on behalf of capital defendants.
Even in resource-rich countries, capital defence lawyers face unique challenges. As
a young lawyer defending people on death row in Texas, in the United States, I was
part of an organization that was the frequent target of politicians who objected to our
work on behalf of condemned prisoners. They vilied us when we were successful
in preventing executions. They sought to eliminate our sources of funding and were
Clinical Professor, Cornell Law School. Faculty Director and Founder, Cornell Center on the Death Penalty
Worldwide.
Sandra Babcock, “An Unfair Fight for Justice: Legal Representation of Persons Facing the Death Penalty”,
in Carol S. Steiker & Jordan M. Steiker, Eds., Comparative Capital Punishment, (Cheltenham, UK, ), pp.
-.
The Death Penalty in the OSCE Area: Background Paper 2022
ultimately successful in shutting down our oce. Many of us received hate mail, some
of it threatening, much of it unspeakably vulgar. Several female defence lawyers I
know, myself included, have been threatened with sexual violence — not by crime
victims, but by oen-anonymous strangers who read about our work.
Most lawyers develop a thick skin and shrug o such attacks. What is harder to ig-
nore are the physical and psychological consequences of vicarious trauma. One of
our tasks, as capital defence lawyers, is to investigate the circumstances of our cli-
ents’ lives to explain the factors that led to their arrest and incarceration. In doing
so, we spend hundreds of hours speaking to our clients and their families, review-
ing medical and school records and reading police reports. Our clients will oen tell
us secrets they have harboured their entire lives — stories of abuse, violence and suf-
fering. Others tell of police torture and the terror they felt as they lay helpless on the
oor of a jail cell. We hear about parents who punished them, men who raped them,
children who died and friends shot in the streets. They tell us of accidents, brain in-
juries, and hospitalizations. Mentally ill clients tell us about the images that haunt
them. Intellectually disabled clients struggle to nd the words to describe the bully-
ing they endured as children. We listen, and then we ponder the meaning of those
experiences in the context of a death penalty trial or appeal. We think oen about
our clients and their suering, and the suering of those who may have been victim-
ized by our clients.
Defence attorneys bear an enormous psychological burden, likened to that of emer-
gency room doctors, of discovering a ‘cure’ for their client’s death sentence. They
search for legal precedents, le appeals, and desperately seek a sympathetic audi-
ence in a sea of hostile courts and clemency boards. Cynthia Adcock, a former death
penalty lawyer, wrote that the experience of trying to stop a client’s execution was “a
recurring cycle of hope and despair, hope and despair, hope and despair.” Attorneys
worry that they will make a mistake — not ling an appeal in time, omitting a vital
argument, not pursuing a line of investigation — that could lead to their client’s ex-
ecution. Attorneys who defend prisoners facing imminent execution must not only
handle multiple, oen simultaneous and complex legal appeals, but must counsel
their clients as they prepare for death. Attorneys are also responsible, in most cases,
for notifying family members when their loved one has been executed. Yet the vast
majority of attorneys receive no training on grief counselling. Writing in about
lawyers engaged in criminal defence work, one scholar commented, “there may be
Cynthia Adcock, The Collateral Anti-Therapeutic Eects of the Death Penalty, 11 Florida Coastal Law Review,
().
The Death Penalty in the OSCE Area: Background Paper 2022
no other profession whose practitioners are required to deal with so much pain with
so little support and guidance.”
The trauma of witnessing a client’s execution is dicult to describe. One capital de-
fence lawyer tried to put it into words: “You’re laid out from the experience, emotion-
ally you’re laid out, and there’s a kind of attening. Underlying it is kind of — you’re
wounded in some way.” Others describe being “numb,” “incapacitated,” shocked and
depressed. Aer witnessing his rst execution, another lawyer explained, “I’d nev-
er seen anybody be killed before. I witnessed a murder.”
I have witnessed three executions in my career, and I hope never to do so again. When
my rst client, Joseph “Stan” Faulder, was executed by the State of Texas, I was whol-
ly unprepared for the experience of watching the state kill my client. I had known
Stan and his family for eight years. I had stopped his execution nine times before, but
all of my legal arguments failed in the end. When I walked into the execution cham-
ber, it looked like a hospital room. This somehow made it worse: the chilling, clini-
cal, and premeditated nature of the killing was accentuated by the barren room. My
client was displayed, like a museum exhibit, in the middle of the room, lying on a
white cot with his arms extended, crucixion-style, to either side. The entire specta-
cle seemed staged for an audience — and it was, for in two separate rooms adjoining
the execution chamber stood an array of witnesses, including journalists, prosecu-
tors, and the victim’s family members.
I stood behind the glass while Stan looked at me. I felt impotent, helpless to do any-
thing other than put my hand on the glass in a mute expression of solidarity while hid-
den executioners pushed lethal poison into his veins. The horror of that experience
will never leave me. Two more clients asked me to be present at their executions in
subsequent years, and each killing I witnessed brought back memories of the rst. At
each execution, I walked past a gauntlet of protesters, some cheering my client’s ex-
ecution, and others lamenting it. Some fragments of memories are particularly viv-
id: holding back the hair of my client’s daughter as she vomited aer witnessing her
father’s execution; listening to prison guards joking and laughing while I sought to
comfort another client in his nal moments of life. Even writing about these events
now, years later, my heart pounds and I feel echoes of rage, despair, and depression.
Susan Bandes, Repression and Denial in Criminal Lawyering, Bualo Criminal Law Review, Vol. , p. ,
().
Susannah Sheer, Fighting for Their Lives: Inside the Experience of Capital Defense Attorneys, (Nashville,
Vanderbilt University Press, ), p. .
Ibid., pp. -.
Ibid., p. .
The Death Penalty in the OSCE Area: Background Paper 2022
Recently, scholars have begun to examine the extent to which those who are involved
in the apparatus of capital punishment — from victims to prison guards — are aect-
ed by the trauma they witness. Many years ago, researchers coined the term ‘vicari-
ous trauma’ to describe a constellation of symptoms that sometimes aict members
of helping professions such as therapists, aid workers, social workers and medical
sta. Now, researchers are recognizing that vicarious trauma aects capital de-
fence teams too.
In , a scholar carried out the rst qualitative study of vicarious or ‘secondary’
trauma in a group of U.S. capital defence practitioners. Study participants — including
lawyers, investigators, and paralegals — reported experiencing nightmares, insomnia,
exhaustion, depression, low self-esteem, anger, and diminished trust in the world af-
ter defending clients facing the death penalty. The mental anguish experienced by
legal teams in the United States is not unique. A defence lawyer from India explains
that when he takes on a death penalty case, “I feel I am living with a con tied to my
back. It takes over my life, dominates my thoughts during the day, corrupts all plea-
sure and invades my dreams at night.” And in , death penalty attorneys — from
Bangladesh, Bahrain, Belarus, Cameroon, India, Iran, Japan, Malawi, Nigeria, the
United Kingdom, and the United States who were consulted in connection with this
report — reported feelings of distress, trauma, and depression.
For far too long governments have ignored the need to provide adequate support to
capital defence teams. Prosecutors and police receive funding for training and ca-
pacity-building, while the defence bar is habitually underfunded. Although inter-
national law provides that indigent capital defendants have the right to eective,
state-appointed counsel at no charge, lawyers are so grossly underpaid that they
What is Vicarious Trauma?, U.S. Department of Justice, Oce for Victims of Crime.
Although most studies focus on lawyers, non-lawyers involved in capital defence work, such as investi-
gators, paralegals, and mitigation specialists, suer equally from the symptoms described here.
Kyoko Yoshida Tavassoli, “Secondary Trauma in Capital Trial Defense Practice for Indigent Clients”, PhD
Dissertation, pp. - ().
Susannah Sheer, Fighting for Clients’ Lives: The Impact of Death Penalty Work on Post-Conviction Capital
Defense Attorneys, in Death Penalty and the Victims, New York: United Nations, ), p. .
See generally, Sandra Babcock, “An Unfair Fight for Justice: Legal Representation of Persons Facing
the Death Penalty”, in Comparative Capital Punishment, op.cit., note , pp. -; “Access to Legal Aid in
Criminal Justice Systems in Africa”, U.N. Oce on Drugs and Crime [UNODC], at vii ().
International Covenant on Civil and Political Rights, art. , Dec. , U.N.T.S . See also Economic
and Social Council Res. /, “Implementation of the Safeguards Guaranteeing Protection of the Rights
of Those Facing the Death Penalty”, states have an obligation to “provide special protection to persons fac-
ing charges for which the death penalty is provided by allowing time and facilities for the preparation of
their defence, including the adequate assistance of counsel at every stage of the proceedings, above and
beyond the protection aorded in non-capital cases”, (emphasis added); U.N. Human Rights Comm., General
The Death Penalty in the OSCE Area: Background Paper 2022
struggle to full their professional obligations. When lawyers are deprived of the
time and resources to defend their clients, it not only magnies their emotional and
psychological anguish, but leads to unfair trials and wrongful convictions. Ultimately,
the state’s deliberate indierence to the needs of defence teams undermines the in-
tegrity of the legal system as a whole.
Governments could help alleviate the strain on defence lawyers and improve their
ability to provide quality legal representation to the most vulnerable members of
our society by taking a few concrete steps in the immediate term, such as increasing
lawyers’ pay; providing resources for investigators and experts; and providing train-
ing and professional counselling. But in the end, none of these can ever eliminate
the damage wrought by a system that engages in ritualized killing as a response to
crime. Horror and pain are the handmaidens of capital punishment. As long as the
death penalty exists, lawyers will ght for its victims and bear witness to their pain.
It is time to recognize that the death penalty itself is the problem — and that aboli-
tion is the only solution.
Comment No. , Article : Right to Equality Before Courts and Tribunals and to a Fair Trial, para
states, “In cases involving capital punishment, it is axiomatic that the accused must be eectively assist-
ed by a lawyer at all stages of the proceedings. Counsel provided by the competent authorities on the ba-
sis of this provision must be eective in the representation of the accused.”
See Public Defender’s Services in Ethiopia: Assessment of Current Gaps and the Way Forward, Ethiopian Lawyers’
Association & Ethiopian Young Lawyers’ Association et al, (Addis Ababa: ELA & ELYA, ), pp. , -
, ; Aurora E. Bewicke, Asian Developments in Access to Counsel: A Comparative Study, Northwestern
Journal of International Human Rights, Vol. Issue , Winter , p. , detailing that limited fund-
ing, heavy caseloads, and corruption renders the provision of adequate representation to be virtually
impossible.
Part II: The role of lawyers
in capital punishment cases
. Methodology
This thematic chapter is based on desk research, and a survey and online consulta-
tions undertaken with the assistance of the International Bar Association’s Human
Rights Institute. This approach was chosen in light of OSCE commitments to exchange
information on the question of the abolition of the death penalty and to publicize
available information about the use of the death penalty. It is also a useful resource
for OSCE participating States who are engaged in promoting the abolition of capital
punishment worldwide. Furthermore, it is relevant to citizens of OSCE participating
States who could be prosecuted for crimes in retentionist jurisdictions.
The survey was held between May and June and drew responses
from defence lawyers who have been representing clients in capital cases for be-
tween four and years. These lawyers come from a range of jurisdictions both in
and outside the OSCE region. They include those who represent clients at trial as well
as post-conviction. Some of them work alone, while others practice in a law rm or
organization. Although the volume of responses is not representative, their contri-
butions give a valuable insight into their work and support the ndings of other re-
search conducted in this area.
The resources available and the applicable international and domestic legal frame-
works vary dramatically in the dierent OSCE participating States, as well as in the
jurisdictions of survey respondents from outside the OSCE region. Despite these dif-
ferences, the ndings of this report highlight the commonalities experienced by law-
yers across the breadth of jurisdictions.
“Copenhagen Document ”, op.cit., note 1, paras. ., ..
The Death Penalty in the OSCE Area: Background Paper 2022
The OSCE Oce for Democratic Institutions and Human Rights extends its sincere
appreciation to all the lawyers who took part in this survey and whose input has in-
formed its conclusions.
. The right to eective legal representation in capital punishment cases
in law and practice
2.1. The right to eective legal representation
International law provides for the right to eective legal representation, including
the right to be provided with legal assistance in serious criminal cases. This right
is especially important in capital cases where the defendant faces the death penalty.
In such cases, the inadequate defence increases the risk that an individual will face
the death penalty, particularly if they have been coerced into confession by means
of torture or ill-treatment. In Belarus, for example, Amnesty International reports,
“[t]orture and ill-treatment are being widely used to force suspects to self-incrimi-
nate in the absence of a lawyer”.
The following aspects of the right to eective legal representation are particularly at
risk for capital case defendants and those on death row.
•
Legal representation must be provided free at all stages of the proceedings for those
who are at risk of the death penalty and who cannot aord a lawyer. Lawyers who
responded to our survey were either salaried employees of a law rm, paid by the
public defender’s oce or an organization, did the work pro bono, or were paid
for by the family of the defendant.
•
Representation must be eective, with “blatant misbehaviour or incompetence” by
a state-funded defence attorney potentially being a violation of rights in interna-
tional law. However, as noted below, whilst legal representation may be provided
for indigent persons, the quality of that representation may not always be adequate.
Article ICCPR; Human Rights Committee, General Comment No. , op. cit., note , para ; Human
Rights Committee, General Comment No., CCPR/C/GC/, para ; see also, generally, UN Basic
Principles on Role of Lawyers, adopted on September by the Eighth United Nations Congress on
the Prevention of Crime and the Treatment of Oenders, Havana, Cuba; ECOSOC Resolution /,
Implementation of the safeguards guaranteeing protection of the rights of those facing the death penal-
ty, May , section (a).
See Innocent until proven guilty? Access to counsel crucial for those facing capital punishment,
FIDH, October ; see also Death Penalty in Belarus. Murder on (Un)lawful Grounds, FIDH, VIASNA,
October , at pp. - .
FIDH, VIASNA, op. cit., note , at p. .
See General Comment No. , op. cit., note , para. ; see also Human Rights Committee, Shaw v. Jamaica,
Communication No. /, Views adopted on June (CCPR/C//D//), para. .
General Comment No. , op. cit., note , para .
The Death Penalty in the OSCE Area: Background Paper 2022
• Legal representation in death penalty cases should be provided from the outset,
starting with detention, arrest, suspicion, or charge, and continue through to ap-
peal or other post-conviction proceedings. This includes during investigation,
when there is an increased risk of torture or ill-treatment resulting in confessions
subsequently used in evidence against the accused. In practice, however, in vari-
ous countries, individuals are denied access to a lawyer at various stages, includ-
ing during pre-trial investigation, such that some may only meet their lawyer for
the rst time in court when the trial starts.
• International standards require that there should be adequate time and facilities
to prepare a defence. This includes access to information; the ability of the law-
yer to consult with their client and in private; that the lawyer be paid suciently
well to be able to represent their client eectively; and that there is time to pre-
pare the case. In addition, there should be special protection accorded to defen-
dants in capital punishment cases; namely, that the time and facilities provided
should be “above and beyond” that provided in other cases.
The UN Human Rights Committee has found Belarus in violation of the right to ac-
cess a lawyer in a number of death penalty cases. It notes, for example, that the cli-
ents were only visited once during pre-trial investigation, meetings were extremely
short, were not held in private, or the accused was questioned without the presence
of the lawyer, thereby negatively aecting the accused’s defence. Additional research
has found that in Belarus, the accused may not have the assistance of a lawyer during
the trial. Furthermore, Amnesty International has documented cases where indi-
viduals in Belarus have not been able to speak with their lawyer in private, only in
the presence of police ocers.
Ibid.; see also UN General Assembly Resolution /, United Nations Principles and Guidelines on Access
to Legal Aid in Criminal Justice Systems, March , A/RES//, paras. , (c); UN Economic and
Social Council Resolution /, Implementation of the safeguards guaranteeing protection of the rights
of those facing the death penalty, May , para. .a.
See FIDH, op. cit., note . FIDH, VIASNA, Death Penalty in Belarus. Murder on (Un)lawful Grounds, October
, at pp.-, op. cit. note .
See UN Basic Principles on the Role of Lawyers, op. cit., note , principles , , and ; and the Body
of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment adopted by
General Assembly resolution / of December , principle .
Resolution /, op. cit., note , para. .a.
Lyubov Kovaleva and Tatyana Kozyar v. Belarus, Communication No. /, U.N. Doc. CCPR/
C//D// (), para .; Svetlana Zhuk v. Belarus, Communication No. /, U.N. Doc.
CCPR/C//D// (), para ..
Why the Death Penalty Continues to Be Applied in Belarus, ECPM Proceedings Brussels , (accessed
August ).
Ending Executions In Europe. Towards Abolition Of the Death Penalty In Belarus, Amnesty International,
EUR //, p. .
The Death Penalty in the OSCE Area: Background Paper 2022
These are similar to the restrictions reported by many of the lawyers who respond-
ed to the survey. For example, some stated that the administration of the particular
prison where their client was being held determined whether and when a lawyer was
able to visit them. As one lawyer noted:
“Rules for visitation, even legal visitation, vary institution by institution. Some
prisons limit the days on which even legal visits can take place. At some institu-
tions, it can take weeks to schedule a condential legal phone call. Sometimes
the time period for those legal visits is limited. Some prisons allow contact le-
gal visits, some don’t”.
When visits are allowed, there may be restrictions that negatively aect the lawyer’s
ability to talk condentially and eectively with their client. For example, some meet-
ings have to take place behind glass or plastic partitions. This prevents the exchange
or signature of documents and requires them to speak loudly.
Although some respondents to the survey noted that their client meetings always take
place in private, others raised concerns about the lack of condentiality, noting that
they are not able to sit alone with their client due to the lack of appropriate space pro-
vided in the facilities. As one lawyer stated:
“…police ocers are always present for security purposes. I do ask them to dis-
tance themselves in order to ensure condentiality. Nevertheless, despite be-
ing some distance away, they are always “visible” to the clients”.
The timetable imposed by courts can leave little time for proper preparation. Although
the time limits will vary depending on the court and the stage of the process, lawyers
in the survey stated that, in some instances, the time is extremely limited. For ex-
ample, in one instance cited by a respondent, the lawyer had just days to prepare
for trial. Some jurisdictions have legally prescribed minimum preparation times.
However, from the experience of lawyers in other jurisdictions, the amount of time
provided is arbitrary and can depend on “the mood of the judge and his schedule,
some of them extending for months and some of them for a few days”. The length
“varies from hours to days/weeks/months depending on the nature of the case and
presiding judge”.
Besides the inevitable stresses that this type of case imposes on lawyers, these cir-
cumstances highlight the critical importance of appropriate experience and exper-
tise in representing individuals facing the death penalty.
The Death Penalty in the OSCE Area: Background Paper 2022
2.2. Quality of legal representation
The quality of legal representation is a crucial element in death penalty cases: “A com-
petent attorney can mean the dierence between life and death”. Legal represen-
tation should be eective, with lawyers who are adequately trained and competent
and, if the individual cannot pay or where the interests of justice require, free.
Poor representation — for example, where lawyers do not carry out investigations,
fail to obtain relevant reports or expert opinions, are not present at hearings, lack
experience in dealing with these cases, or exhibit blatant incompetence or miscon-
duct during the proceedings — can result in the rights of the defendant being inad-
equately represented.
Furthermore, national standards on what is considered ‘eective representation’
may fail to provide the appropriate safeguards for the defendant. For example, in the
United States, the prevailing legal standard to demonstrate the ineective assistance
of counsel is that the lawyer’s performance must not only fall below an objective stan-
dard of reasonableness, but that there is a reasonable probability that the outcome of
the proceedings would have diered, but for the lawyer’s error. Observers consider
that this test imposes an “extremely high burden on the defendant”.
... Funding
Related to the quality of the legal representation is the amount of pay lawyers receive,
as well as the funding available to ensure an eective defence. Resources available
Inadequate Representation, ACLU, (accessed August ). See also Bruce A. Green, Should There Be
a Specialized Ethics Code for Death-Penalty Defense Lawyers, 29 Geo. J. Legal Ethics () , pp. -
. See also dissenting opinion of Justice Sonia Sotomayor in the case of Shinn v Ramirez before the US
Supreme Court: “Two men whose trial attorneys did not provide even the bare minimum level of repre-
sentation required by the Constitution may be executed because forces outside of their control prevented
them from vindicating their constitutional right to counsel”, F. d and F. d , No.-,
Decision May , p..
UN Human Rights Committee, General Comment , op. cit., note , para . See also UN General
Assembly, Resolution /, op. cit., note , para. (c) of Annex, and UN Basic Principles on the Role
of Lawyers, op. cit., note , para. .
Ibid.; Communication No. /, Hendricks v. Guyana, U.N. Doc. CCPR/C//D//, para. .;
Communication No. /, Brown v. Jamaica, U.N. Doc. CCPR/C//D//, para. ., e.g., Slamming
the Courthouse Doors. Denial of Access to Justice and Remedy in America, ACLU, December .
See Strickland v Washington, U.S. Supreme Court, U.S. , ().
See, e.g., Court Findings of Ineective Assistance of Counsel Claims in Post-Conviction Appeals Among
the First DNA Exoneration Cases, Innocence Project, September , p. .
See generally Sherri DioGuardi, Examining the Death Penalty Insider Perspective: Capital Bench & Bar
Interviews, Journal of Qualitative Criminal Justice & Criminology ().
The Death Penalty in the OSCE Area: Background Paper 2022
at the post-conviction stage may be even more limited than those at the trial stage.
More broadly, these challenges are part of a broader picture of low funding for le-
gal representation of indigent persons in some countries, and the fact that many of
those who require representation are poor and particularly vulnerable.
Lawyers’ responses to the survey varied in whether they considered they received ad-
equate pay for their work. Although some were uncomfortable making comparisons
with the pay of other lawyers, and felt they were compensated appropriately, others
considered their pay inadequate. As one lawyer told us:
“[T]he persons who may be charged for oences punishable by death are rare-
ly in the elite category. Lawyers working on their defence will have to struggle
with the little resources available or do it pro bono outrightly”.
Many lawyers who work on death penalty cases have devoted their entire careers to
doing so and have developed extensive expertise. Some public defenders’ oces,
for example in the United States, are competitive workplaces and attract a wide se-
lection of qualied applicants for open positions. In addition, programmes have
been established that provide services to those charged with capital oences, such
as through Capital Defence Oces. Indeed, there is some research from the U.S. to
suggest that public defender oces may provide better representation than court-ap-
pointed lawyers. This could be for a number of reasons, including:
• They may be “more aggressive advocates due to a stronger ideological commit-
ment to indigent defence”;
• They are “highly competitive”;
• They have the budget to be able to hire support such as experts and investigators;
• They receive a salary rather than a at fee per case; and
• They have acquired the case based on their expertise.
Sean D O’Brien, Capital Defense Lawyers: The Good, the Bad, and the Ugly, Michigan Law Review, Vol.
() , at pp. -.
See Secretary-General of the UN, “Extrajudicial, summary or arbitrary executions. Note by the Secretary-
General”, A//, August , paras. -.
See generally Death row ‘reserved for the poor, OHCHR, October ; see also UN Secretary General,
Moratorium on the use of the death penalty. Report of the Secretary-General, A//, July , paras. -.
See e.g., Faculty Spotlight: As He Rose In His Career, Bonnie Made Case Against Death Penalty, UVA Today,
April ; Amanda Robert, Kelley Henry is a champion for death row inmates, April .
See LisaD. Williams, Careers In Indigent Defense: A Guide To Public Defender Programs, Harvard Law
School, , p. .
The Death Penalty in the OSCE Area. Background Paper , OSCE/ODIHR, p. . See list at: https://www.
ncids.org/capital-cases/capital-defender-oces/.
Scott Phillips, Legal disparities in the capital of capital punishment, Journal of Criminal Law and
Criminology (), at .
The Death Penalty in the OSCE Area: Background Paper 2022
In addition, in some jurisdictions, the unpredictable quality of court-appointed attor-
neys, combined with inadequate pay, means that public defenders oces can oer
more consistent representation to indigent clients than court-appointed lawyers.
However, lawyers representing death penalty clients may not always have adequate
experience or devote substantial time or resources to such cases. For example, courts
in the United States have held that lawyers working on capital cases rendered as-
sistance that fell below the standard of eectiveness required by law. One former
United States Supreme Court justice stated that of the dozens of eve-of-execution
emergency stay petitions she had examined as a judge, in none of them was the de-
fendant “well represented at trial.”
As with other complex criminal cases, an eective defence requires a team to work on
the case, rather than just one lawyer. Lawyers responding to the survey also high-
light the need for money for travel expenses, obtaining les and collecting evidence.
Translation may also be required and in-depth investigation is essential to examine
prosecution witnesses and discover evidence. Expertise is also crucial, for which fees
and expenses must be allocated. The mental health issues of defendants will aect the
case, highlighting the need for support from suitable professionals to ensure an ade-
quate defence strategy is developed. There may not be funding available for hiring
the appropriate expertise. Said expertise may not be available locally, or there may
be restrictions on which types of professionals the court may appoint. Guidance from
organizations such as the Death Penalty Project, on forensic psychiatric practice in
death penalty cases for example, may help to bridge the gaps.
The right to a fair trial includes the principle of equality of arms. As the UN Human
Rights Committee explains:
See Matt Reynolds, Maine will hire its rst public defenders to aid struggling indigent defense system,
ABA Journal, May (explaining that Maine, the last state in the U.S. without a public defender sys-
tem, was in the process of hiring attorneys for a newly-established public defender’s unit).
See, e.g., U.S. Supreme Court Orders Texas Court to Reconsider Case of Inadequate Representation, Death
Penalty Information Center, June .
Ruth Bader Ginsburg, In Pursuit of the Public Good: Lawyers Who Care, Apr. .
Robin Maher, The legal profession’s opportunity and obligation to support the defense eort in death
penalty cases, Justice International () at p. .
Ibid., p. ; see also A. Thornewell et al, A matter of life or death. Mental health experts play a key role
in evaluating the mitigating evidence that informs a defendant’s sentence, () Monitor on Psychology
Judicial Notebook, .
See, e.g., N. Eastman, S. Krlies, R. Latham, M. Lyall, Handbook of Forensic Psychiatric Practice in Capital
Cases, Death Penalty Project, Forensic Psychiatry Chambers, nd edition, .
The Death Penalty in the OSCE Area: Background Paper 2022
“This means that the same procedural rights are to be provided to all the par-
ties unless distinctions are based on law and can be justied on objective and
reasonable grounds, not entailing actual disadvantage or other unfairness to
the defendant”.
Some lawyers who responded to the survey indicated that they believe their jurisdic-
tion did not uphold the principle of equality of arms. Although some acknowledged
the resources available to the prosecution were also limited, they cited inequalities
for the defence:
“It is unequal; the prosecuting authority have state-backed access to nance,
investigative resources, such as compelling banks to produce client’s nan-
cial records, access to call logs of suspect[s] from the network service provid-
ers, tax records etc. For a private lawyer undertaking the service of defending
his client, [they] will have a hard time getting equal access to these investiga-
tive resources. The defence lawyer may be mandated to get court orders to ob-
tain records or access to sensitive information which could be frustrating and
time wasting”.
In addition, lawyers note a perception that the system can be biased against the de-
fence, citing imbalances not only in the approach of the court but also in the de-
fence’s ability to access documents. In the words of one lawyer:
“There is no equality. The prosecution have the investigation report, which
we have to pay to be given a copy of, and if the client is not available then, as
defense counsel, I will be seeing it in court for the rst time during the ten-
dering of documents or during the examination in chief. The prosecution is -
nanced by the state while the client might not have access to his/her account”.
... Competency and Experience
Seasoned and specialized lawyers are better placed to defend death penalty clients.
High quality, experienced representation can be very inuential in the outcome of a
case, including in enabling a judge or jury to fully understand the context of the al-
leged crime and the defendant’s own mental state in relation to it.
UN Human Rights Committee, General Comment No. , op. cit., note , para. .
For example, one respondent stated, “There is no equality of arms between the prosecution and defence.
Moreover, in most cases, the defence motions for additional research are rejected by the court”.
See W.S. White, The role of defense lawyers in capital cases, in Litigating in the Shadow of Death, (University
of Michigan Press, ), chapter , at pp. -.
The Death Penalty in the OSCE Area: Background Paper 2022
The importance of extensive experience rests, in part, in knowing what type of re-
sources and evaluations to seek in a death penalty case. For example, one respondent
with decades of experience described the process for obtaining resources to defend
clients eectively as follows:
“I’ve had the most success obtaining resources by building a step-by-step ar-
gument for why the resources are necessary for an eective defence. If, for
example, the government’s burden is to prove that my client committed ho-
micide with malice aforethought and specic intent to kill, e.g., aer pre-
meditation and deliberation, and I have records that show that a client had
educational decits, I could use those records for a request for funds for a
clinical psychologist. If that clinical psychologist’s evaluation suggested that
my client might have some gross brain impairments, I would use that report
to seek funds for a neuropsychological evaluation. If the neuropsychological
evaluation revealed additional evidence of organic brain damage, I would use
that neuropsychological report to request funds for an MRI or an fMRI or a
CT scan, depending upon what the neuropsychologist thought would be most
useful, etc. It all depends upon what the legal issues are. But it’s necessary to
show the court that holds the purse strings that the funding being requested
is necessary for the defence”.
Experienced defence lawyers will likely be better able to identify the necessary ex-
perts for the defence strategy. They may also have the necessary contacts to be able
to provide further advice and support. As one expert puts it, “successful capital de-
fence attorneys work with co-counsel, mitigation specialists, investigators, and ex-
perts in advance of trial.”
The importance of the lawyer being able to show a defendant’s mental capacity and
background including, for example, a history of abuse or mental health issues, is cru-
cial to an eective defence. Failure to do so can mean the dierence between life
and death. This information can be presented eectively with specialized exper-
tise, but an inexperienced litigator may not be aware of this. Experienced lawyers will
also understand the emotional challenges for the defendant and their families in dis-
cussing these types of issues, appreciating the need for interviews to be conducted
O’Brien, “Capital Defense Lawyers: The Good, the Bad, and the Ugly”, op. cit., note , at p..
“The Death Penalty in the OSCE Area”, OSCE/ODIHR, op .cit., note , p. ; see also A. Robert, Kelley
Henry is a champion for death row inmates, ABA Journal, April ; D. Rose, Death Row: the lawyer
who keeps losing, The Guardian, November .
For an example of a case where attorneys failed properly to utilize available evidence on mental capacity
in a capital case, “State of Alabama Executes Matthew Reeves”, Equal Justice Initiative, January .
The Death Penalty in the OSCE Area: Background Paper 2022
appropriately and for the provision of mental health support to avoid exacerbating
their client’s mental state in the lead-up to, or during, a trial.
If the lawyer does not have the appropriate expertise to defend their clients, for ex-
ample, by conducting detailed investigations into the circumstances of the case and
the background of their clients, they may not be aware of, or able to demonstrate the
vulnerabilities or disabilities of the defendant, nor be able to cross-examine prose-
cution witnesses eectively. This is relevant given the disproportionate number of
vulnerable and marginalized people facing the death penalty. In addition, challenges
to securing adequate expertise can arise where death penalty attorneys are appoint-
ed by the state. In some jurisdictions, appointed counsel must obtain the approval of
the judge to acquire critical services such as investigators and expert witnesses; such
approval is oen withheld.
Even assuming that a judge or jury returns a guilty verdict, an experienced attorney
can be the dierence between life imprisonment and a death sentence. As the pro-
cesses in death penalty cases may dier from other criminal proceedings, the law-
yer must be aware of the relationship between the trial and sentencing. In addition,
post-conviction work in capital cases is even more complex, with an intense sense of
urgency that makes experience all the more important: “[it] is about stopping a train
that is already barrelling towards a client, rather than blocking that train from leav-
ing the station”.
Experienced litigators acting on behalf of clients facing the death penalty will also
be better prepared to negotiate appropriate plea bargains in jurisdictions where this
is permissible and if it is in their client’s interest. Experience lawyers are more like-
ly to recognize that “one of the ironies of death penalty litigation is that defendants
who claim innocence are at a greater risk of being sentenced to death than a defen-
dant whose guilt is obvious”. Negotiating a plea before trial, where the defendant’s
guilt is clear, gives the defence lawyer a chance to persuade the prosecution not to
seek the death penalty.
See, Inadequate Representation, ACLU op. cit., note .
See Phillips, “Legal disparities in the capital of capital punishment”, op. cit., note , p. .
Green, “Should There Be a Specialized Ethics Code for Death-Penalty Defense Lawyers”, op.cit., note ,
pp.-.
Susannah Sheer, “Fighting For Clients’ Lives” op. cit., note , p. .
O’Brien, Capital Defense Lawyers: The Good, the Bad, and the Ugly, op.cit., note , at p. ; see also
White, Litigating in the Shadow of Death, op. cit. note , pp. -.
The Death Penalty in the OSCE Area: Background Paper 2022
Criminal defence lawyers are regulated by the laws and ethical rules applicable to
lawyers in their jurisdiction. However, it has been acknowledged that more specif-
ic guidance may be needed for those representing clients in death penalty cases.
Research has also identied particular challenges for lawyers defending clients who
have elected to be executed. This may happen for a variety of reasons, including sui-
cidal thoughts, mental health issues, guilt, remorse, or an inability to manage the
emotional diculties, among others. These situations raise ethical dilemmas for the
lawyers defending the individuals, including whether the lawyer has a duty always to
respect the wishes of the client, particularly if the client has mental health issues.
The standards of competency of lawyers in this particular area of practice — particu-
larly when the attorney is court-appointed — are not always provided. Attempts have
been made to address these gaps, for example, in the United States with the American
Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in
Death Penalty Cases66 and the National Legal Aid and Defender Association’s Standards
for appointment and performance. However, it is not always the case that attorneys
appointed to death penalty cases have adequate skills and experience.
In addition, in the United States, there are concerns over the method of appointment
of those representing indigent individuals, as the fee they receive may be standard-
ized and not necessarily based on the number of hours worked on the case. This cre-
ates serious incentive issues in such cases. There is also evidence in the United States
of judges appointing defence lawyers “not based on their competence or experience,
but based on their reputation for rapidly moving cases through the system”.
... The need for other skills
Lawyers who responded to the survey pointed to various types of skills needed to de-
fend capital cases eectively. These included knowledge of human rights, medical
jurisprudence, and forensic skills “to be able to…prob[e] into evidence in murder cas-
es, autopsy, and physical evidence from the death”. In addition, some respondents
See generally, Green, Should There Be a Specialized Ethics Code for Death-Penalty Defense Lawyers, op.cit.
note . See also, ABA Guidelines for the Appointment & Performance of Defense Counsel in Death Penalty Cases,
American Bar Association.
Ibid., p. . See also, generally, C. Lee Harrington, “A community divided: Defense attorneys and the
ethics of death row volunteering”, Law and Social Inquiry () (), pp. -.
Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, American Bar
Association, .
NLADA, Standards for the Appointment and Performance of Counsel in Death Penalty Cases (Black Letter).
See, Inadequate Representation, ACLU, op.cit., note .
The Death Penalty in the OSCE Area: Background Paper 2022
noted the importance of psychological skills including “patience”, the “ability to lis-
ten”, “the ability to focus without distraction when….there is a live execution date”,
good case management and media relations skills. Research supports the proposition
that death penalty lawyers oen need to utilize skills which are not legal but “more
therapeutic in nature”, particularly when clients make choices that are not neces-
sarily in their own best interests.
The combination of these social and legal skills is important. As one lawyer told us:
“The skills are the same, strong research, advocacy, knowledge of legal tech-
nicalities, investigative and critical thinking. However, discernment, psychol-
ogy, [and] high social intelligence will help in understanding the mind of the
judge, the prosecution, one’s client and how to present the case in the most
compelling manner. There are cases where, due to these skills, lawyers have
been able to deploy legal dexterity to persuade judges to commute a case of a
murder which is punishable by death to manslaughter which is [punishable
by] a term of imprisonment”.
... Workload
Both workload and resources vary widely in the jurisdictions surveyed. Lawyers
working on serious cases in some areas have such extensive caseloads that their abil-
ity to represent all their clients eectively may be compromised. This possibility,
while always problematic, takes on new dimensions where the case is a capital one.
While some jurisdictions have established maximum caseload standards for capital
punishment lawyers, this is not the case for many others. Even when dealing with
only a handful of cases, the workload in capital cases, which can involve thousands
of hours of preparatory work, may be challenging or impossible for lawyers to man-
age without additional sta.
Of the survey respondents, some work alone, while others have an in-house team in
their rm or organization with whom they share the caseload, sometimes accompa-
nied by paralegals and support sta. Their situation has an impact on how many cas
-
es they may have at one time and how manageable they perceive that workload to
be. For example, among those who work on even a small number of cases alone, one
Harrington, “A community divided”, op.cit., note , at p. .
See, e.g., Taylor Payne, Plight of the Public Defender: Excessive Caseload as a Non-Mitigating Factor in
Sanctions for Ethical Violations, Mo. L. Rev. , (), at -.
See, e.g., American Council of Chief Defenders Statement on Caseloads and Workloads, American Council
of Chief Defenders () at , note .
The Death Penalty in the OSCE Area: Background Paper 2022
lawyer told us: “I now have three cases of execution, which constitute a heavy bur-
den because it takes a lot of time and eort”. For others who have a team behind them
in their organization or rm, a larger number of cases may be feasible. Conversely,
where additional sta and support are not available, the situation for the respondents
was untenable, particularly when combined with other cases:
“As a legal aid advocate, I am assigned to one district… Therefore, I am respon-
sible for representing all defendants who cannot aord the services of a private
lawyer in that district. Clearly, the case load is not manageable”.
. The independence and impartiality of judges and lawyers
Limitations to the independence of the judiciary and executive control over lawyers
and the legal profession, for example in Belarus, aects the extent to which defen-
dants’ right to eective legal representation is respected. This varies widely between
jurisdictions and even within a country. In the United States, for example, depend-
ing on the state and county, the executive appoints judges while others are directly
elected.
Some lawyers who responded to the survey did feel that the judges they faced in cap-
ital cases lacked impartiality. As one lawyer informed us:
“The judge is completely biased toward the prosecution and does not respond
to the defence’s requests, so he [the defence] cannot see all the case papers or
request witnesses to be brought and discussed”.
Respondents to the survey also reported a belief that some judges lacked indepen-
dence from state agencies. As one lawyer stated:
“…We have seen that most judges and courts are under the impact of fear or
dependence on [the security services]”.
Broader political trends, for example the view that certain oences should receive
harsher sentences, can skew trials where capital punishment is the potential out-
come. This is oen reected in media attention on the case, which can, according to
one lawyer, result in putting “a lot of pressure on the courts to secure a conviction”.
As the prominent lawyer and legal scholar, Susan Bandes, has noted with respect to
“Ending Executions In Europe”, Amnesty International, op.cit., note , at pp. -.
For example, in many U.S. jurisdictions, a local constituency directly elects judges. See Maher, “The le-
gal profession’s opportunity and obligation”, op.cit., note , pp. -.
The Death Penalty in the OSCE Area: Background Paper 2022
the media in the United States: “the media present distorted images of crime and jus-
tice. These images have serious consequences, including… a pernicious inuence on
the American system of capital punishment, both in the aggregate and in its appli-
cation to individuals”.
The capriciousness of the system can also result in defendants not receiving a fair
trial. This may be in part because of the racial bias in certain systems. Extensive
research in the United States, for example, has set forth comprehensive evidence to
demonstrate the pervasiveness of racism in capital punishment cases. However,
capricious outcomes in death penalty cases may also result from procedural aws
or inconsistencies. These factors can have an impact not only on the defendants
themselves, but also on the defence lawyers working on cases that end in arbitrary
outcomes.
There are also questions over the independence of some of the lawyers acting on be-
half of individuals in death penalty cases. For example, in Belarus, lawyers are sub-
ject to activity audits and discipline by the Ministry of Justice, which also controls
the Bar Association through the licencing and qualications process. This control
presents a real threat to the independence of lawyers; civil society has documented
examples of Belarusian lawyers being disbarred for defending political prisoners.
Consequently, lawyers can be afraid to speak out for fear of losing their jobs. The
Code of Criminal Procedure in Belarus also places restrictions on disclosure of any
aspect of their cases, which — given the threat of disbarment and/or prosecution for
violations — prevents many lawyers from making any public statement at all relating
Susan Bandes, “Fear Factor: The Role of Media in Covering and Shaping the Death Penalty”, Ohio State
Journal of Criminal Law () -, p. .
Enduring injustice: the persistence of racial discrimination in the U.S. death penalty, Death Penalty
Information Center, September , pp. - (comprehensively setting forth evidence of racial bias at
every stage of a capital case in the United States); T. Lyman, F.R. Baumgartner and G.L. Pierce, Race and
Gender Disparities in Capitally-Charged Louisiana Homicide Cases, -, Southern University Law
Review, p. (“No demographic combination was as likely to see a nal capital charge or a death sentence
as those cases with a black male oender and a white female victim.”). See also Randee Fenner, Faculty
Research Spotlight: Race and the Death Penalty, Stanford Lawyer, June ; Faculty Spotlight: As He
Rose In His Career, Bonnie Made Case Against Death Penalty, UVA Today, April .
For examples of the types of procedural aws that can result in arbitrary outcomes in capital cases, see,
Legally Irrelevant Factors Impact Death Penalty Sentencing, Death Penalty Information Center, (last ac-
cessed August ).
FIDH, VIASNA, Death Penalty in Belarus, op. cit., note , pp. -.
Ibid., p.. See also ‘Stay Strong’: Noted Belarusian Lawyer Who Defended Political Prisoners Deprived Of
License, Radio Free Europe/Radio Liberty, October ; Some political prisoners released but law-
yers under pressure, Human Rights House Foundation, September .
The Death Penalty in the OSCE Area: Background Paper 2022
to their cases. This is of particular concern when the accused have been subject to
intimidation and coercion to sign a confession. In Belarus, there are also numerous
documented cases of lawyers appointed to defendants being changed during the case
without explanation. In addition to presenting an obstacle to eective representa-
tion, this may also be an indicator of a lack of independence.
. Secrecy and lack of transparency in proceedings
A lack of transparency in how death sentences and executions take place presents an-
other issue. Lack of information surrounding the execution itself presents a problem
in many countries. This has been thoroughly documented, for example, in Belarus.
Lawyers from several countries who responded to the survey stated that, in some in-
stances, families were informed about a pending execution by the prison authorities,
but that the lawyer only learned of it from their client’s family members. In other cas-
es, lawyers did not know until aer the execution had taken place, nding out from
the media, or because correspondence with their client stopped:
“In practice, I usually visit the client at least once a month and receive re-
quests for visits by mail. When the letters are not coming anymore, I assume
that the client was executed. Usually, it happens or months aer the nal
appeal was denied”.
Other respondents stated that lack of transparency was a matter of course in their
jurisdiction:
“All death cases are carried out without informing the lawyer or the family of
the accused and, even if the accused person is not informed or allowed to say
goodbye to his family, it is a surprise to everyone”.
As noted above, an additional obstacle to transparency in death penalty proceed-
ings in Belarus is the legislation relating to state secrets. In line with Belarusian law,
death penalty lawyers may be required to sign an undertaking, punishable by a ne
“Death Penalty in Belarus”, FIDH, VIASNA, op.cit., note , p..
Ibid., p. .
“The Death Penalty in the OSCE Area”, op. cit., note , p. . For examples of concerns around transpar-
ency, see also Report of the Secretary-General, Question of the Death Penalty, A/HRC//, December
, paras. -.
“Report of the Special Rapporteur on the situation of human rights in Belarus”, UN Human Rights Council,
April , A/HRC//, paras. and ; Belarus: The secret executions in Europe’s ‘last dictator-
ship’, BBC, May ; ECPM Proceedings Brussels , op. cit., note . “Ending Executions In Europe”,
op.cit. note , p..
The Death Penalty in the OSCE Area: Background Paper 2022
or imprisonment, not to disclose information about the trial. This impacts upon the
public nature of the hearing required by fair trial guarantees.
Some lawyers who responded to the survey have found that using media attention
can be an eective tactic to address obstacles to representing their clients, such as
limits on meetings, lack of private meeting space, or access to relevant les. As one
lawyer stated:
“In political cases, prisons are reluctant to [let] us visit. So, we le applications
in court to visit the prisoner and ask the court to allow us to visit. … We make
this application public, tell human rights organizations we are doing this and
then it is publicized and then the court wants to avoid adverse publicity and is
more likely to grant the application”.
Secrecy may also be applied to procedures for clemency. In Belarus, the Clemency
Commission, which reportedly operates in “utmost secrecy”, does not provide its
ndings and recommendations to the lawyer and oers no opportunity to challenge
them; the client is informed of the outcome just minutes before the execution takes
place. Similarly, the conditions in which detainees are held on death row may not
be subject to public scrutiny despite there being evidence, in Belarus for example,
that individuals can be held in solitary connement and are poorly treated, making
them extremely vulnerable. Furthermore, aer the execution has taken place, the
state may refuse to return the body to the executed person’s family or inform them
where the remains have been buried.
Ibid., pp. -.
Ibid., pp. -.
“Death Penalty in Belarus”, op. cit. note , p. .
Ibid., p. . Concluding observations on the h periodic report of Belarus, CAT/C/BLR/CO/, June ,
para . Concluding observations on the h periodic report of Belarus, CCPR/C/BLR/CO/, November
, para (b).
The Death Penalty in the OSCE Area: Background Paper 2022
. The impact of COVID-
While some lawyers who responded to the survey said that COVID- did not have an
impact on their work, others explained that it had “slowed things down” and made
investigations, meetings, in-person investigations and assessments, for example, on
mental health, and case preparation “more dicult”. As ODIHR has already highlight-
ed, the pandemic complicated access for lawyers to their clients in capital cases, rais-
ing concerns about the right to a fair trial. Some who were on death row also died
from coronavirus during the pandemic.
. Cross-cutting professional and personal challenges faced by lawyers
6.1. The psychological impact and availability of support
... Reasons for working on death penalty cases
Lawyers who work on death penalty cases choose to do so for a variety of reasons.
Some respondents to the survey said that such cases are simply “part of the job” and
that they take them in order to broaden their experience. Others choose this line of
work because they oppose the death penalty and see it as part of contributing to the
broader movement for abolition; and/ or because they consider the system to be in-
herently biased and discriminatory and want to ensure a fair trial for their clients.
Again, others consider legal representation in capital punishment cases a form of
“civil disobedience”, and they see their job as “bearing witness” or “making a record
for the future”.
As respondents told us:
“I desired to become a capital defender so that I could do everything in my
power to prevent executions by my government, as I have always lived in a
democratic republic and felt responsible for the actions of the government”.
“I personally hold the view that the death penalty is inhumane, degrading, and
unlawful. As such, I try my best to ensure that my clients are given a sentence
limited to a number of years instead of the death penalty”.
“The Death Penalty in the OSCE Area”, op.cit., note , at p. .
See e.g., in the US, COVID- on Death Row, American Bar Association.
Harrington, ‘A community divided’, op.cit., note , at p. ; Susannah Sheer, Fighting for clients’ lives:
The impact of the death penalty on defence lawyers, Penal Reform International, , p. .
The Death Penalty in the OSCE Area: Background Paper 2022
“The death penalty is an unfair punishment and I always wanted to help vic-
tims … I am against the death penalty, and I think one of the ways to help the
abolishment of the death penalty is through awareness-raising and inuenc-
ing the public opinion”.
These responses suggest that for many capital defence attorneys, “[L]awyering in
this context is more than just a job; rather it reects attorneys’ deeply held beliefs
and values”.
... Managing emotions and the weight of responsibility
Death penalty defence work diers from other criminal defence work: “capital cases
are among the most emotionally and nancially draining cases imaginable”. This
is particularly true for post-conviction capital defenders because “the stakes are as
high as can be: loss of a case means loss of a client’s life”. Respondents to the survey
cite “depression”, “maddening stress”, and “diculty sleeping”, among other results
of working on death penalty cases. Lack of resources to provide quality representa-
tion, as noted above, may contribute to these feelings. As one lawyer told us:
“Representing people facing the death penalty can be emotionally draining.
In part, this is because we lack special resources to eectively represent our
clients. Sometimes, we are unable to conduct comprehensive mental assess-
ments, to engage forensic experts, or adequately prepare witnesses for trial.
Any psychological or moral support is mainly personal as there is no ocial
establishment for dealing with mental support during the pendency or aer-
math of a case”.
The potential consequence of these cases means that there is a particularly heavy
weight of responsibility on the lawyers: “they feel that their clients’ lives are in their
hands”. This weight can feel personal. This is exacerbated by the dicult circum-
stances in which they have to operate which may mean that they can feel helpless in
inuencing the outcome. As one lawyer responding to the survey said:
Harrington, ‘A community divided’, op.cit., note , at p. .
ACLU, Inadequate Representation, op. cit., note .
Sheer, “Fighting For Clients’ Lives”, op. cit., note , p. .
Ibid., p. .
Ibid., p. .
The Death Penalty in the OSCE Area: Background Paper 2022
“Communication with a death row client carries a strong psychological burden.
As a human, I unconditionally empathize with the client and try to help him/
her. At the same time, I understand that within the [national] legal and court
system there is very little I can do to help. There is almost no chances [sic] to
help in these types of cases”.
It is dicult to compartmentalize work if a client is facing execution, and the case
can dominate the working and personal life of the lawyer. The time leading up to
an execution is dicult; conversely, an execution that takes place with little or no no-
tice to the lawyer is “devastating in another way”.
If the client is executed, there may be an enormous sense of failure for not saving
their life. Research from the United States quotes one capital defence lawyer: “Every
time someone’s executed, you feel like you’ve failed. Even if you know going into it
that the deck is stacked against you”. As another lawyer responding to the survey
stated, “…aer the execution of the sentence, I always was in great pain, as if I had
lost a member of my family”. Execution of a client however, can also motivate a law-
yer to continue to work on other cases:
“At rst I feel disappointed and I enter a state of shock, but this is what fuels
me to recover in a speedy manner and work thoroughly on other [death pen-
alty] cases to save lives”.
For lawyers who are able to speak with their client in the hours or minutes before
they are executed, these conversations are “wrenching”. As one lawyer stated to a
researcher: “You’re trying to oer solace to somebody who’s about to die. It’s unbeliev-
able. No one can be adequate in that situation. How could you possibly?” Lawyers
must also face the dicult task of engaging with their client’s family members, in-
cluding, in some situations, in the moments before their loved one is executed.
There are emotional dilemmas implicit in choosing to witness the execution, in ju-
risdictions where this is a possibility. Those who do so may feel “complicit” in the
Ibid., p. .
Ibid., p. .
Ibid., p. .
Ibid., p. .
Ibid.
Ibid.
The Death Penalty in the OSCE Area: Background Paper 2022
process, but may still be present “out of a personal commitment to the client and a
desire to stick with him or her through to the end”.
Months or years aer, some lawyers grapple with a range of emotions including ash-
backs, depression and a sense of guilt about what could have been done dierently.
This can have serious long-term eects on their health. The Diagnostic and Statistical
Manual of Mental Disorders in the US, for example, recognizes “exposure to actual
or threatened death”, as a criterion for post-traumatic stress disorder, including for
those who have to do so repeatedly through their professional lives. As research-
er and activist Susannah Sheer notes, “We can reasonably count capital defence at-
torneys among the professionals whose work contains this inherent risk [of trauma],
with the added dimension that defence attorneys are not only exposed to the trau-
matic event of the execution but must bear the knowledge that it had been their spe-
cic job to try to avert it”.
Besides the psychological impact, one lawyer also told us that working on death pen-
alty cases aects their respect for the judiciary:
“It becomes dicult to respect the judges who are liberal in their conrmation
of death sentences. One feels that they do not value human life and are not being
judicious. This can and has aected my relationship with a number of judges”.
6.2. Stigma, pressure, hindrance and interference
Lawyers defending clients who have been accused of serious crimes may receive con-
siderable respect for their work. However, they can also be the subject of criticism,
particularly so in a jurisdiction when there may be wide public support for the death
penalty. In addition, those defence lawyers who provide representation can nd them-
selves subject to criticism for their record in failing to prevent the imposition of the
death sentence on their clients. One lawyer responding to the survey explained their
own personal experience as:
“…being perceived as both a hero and villain. To suspects, their families and
friends and pro-defence stakeholders I come out as a hero. To the victims/vic-
tims’ families and friends and pro-prosecution stakeholders I come out as a
villain. There are people who do not understand why and that I can represent
people who are perceived as evil or extremely bad”.
Ibid.
Ibid., p. .
Ibid., p. .
The Death Penalty in the OSCE Area: Background Paper 2022
Some of the lawyers who responded to the survey had suered arrest and harass-
ment by the police, by the media, and sometimes by the family of the defendant or
victims. Those subject to harassment and intimidation because of the work they do
on death penalty cases can experience great personal and professional loss. As one
lawyer told us:
“It had a really big impact. I lost my job and everything I established in my
country and moved away from my family and friends to start a new life from
scratch and start learning a new language, culture, society, and a complete-
ly new job”.
Finally, lawyers may face ethical dilemmas in litigating death penalty cases, including,
for example, how to proceed in a post-conviction case when the client is unrespon-
sive in eorts to stay the execution; such situations will require the lawyer to balance
their personal views with their professional obligations and reputation within the le-
gal community. Such situations will inevitably also have a psychological impact on
the attorneys who work on these cases.
. Support for Lawyers and steps towards abolition
7.1. Support for lawyers
Given the dicult role that lawyers play in defending individuals subject to the death
penalty, there are numerous ways that the legal profession can support them in their
work. Some organizations, such as the American Bar Association, the Death Penalty
Project and the World Coalition Against the Death Penalty, have extensive resources
to assist death penalty lawyers. As noted above, there can be a lack of specic guid-
ance for these attorneys, whether this is about the standards they should adhere to,
tailored ethical considerations or strategies on managing cases from legal, practical
or emotional perspectives. Although guidance may be available from outside the ju-
risdiction, for example from international organizations, it may not be in an acces-
sible language. Translation of resources, including technical, forensic, and training
materials, is one of the needs identied by the lawyers who responded to the survey.
See Green, “Should There Be a Specialized Ethics Code for Death-Penalty Defense Lawyers”, op. cit., note
, at p. .
See Maher, “The legal profession’s opportunity and obligation”, op. cit., note , at p. .
See, for example, Death Penalty Representation Project, American Bar Association. See also The Death
Penalty Project “Knowledge” page; the World Coalition against the Death Penalty “Library” page, Cornell
Centre on the Death Penalty Worldwide, and Reprieve. For support for families of those subject to the
death penalty, see also the Texas Aer Violence project’s Access to Treatment Initiative.
The Death Penalty in the OSCE Area: Background Paper 2022
Research indicates that the training a lawyer receives may not prepare them for man-
aging death penalty work and the emotional and psychological challenges it pres-
ents. Survey respondents noted that they had had to learn on the job, working as
junior members of a team. Lawyers may also take the initiative to seek out addition-
al courses and programmes specializing in human rights and death penalty work
that are provided by national and international organizations, although there is
wide variance in what is available depending on jurisdiction and language. In addi-
tion, one lawyer responding to the survey highlighted that the overwhelming nature
of the work itself limits their ability to seek support: “we don’t oen take the time
to reect on the emotional or psychological toll that the work takes; there is just so
much work to do”. Despite this, the survey respondents point specically to the need
for emotional and psychological support, including “group therapy for those lawyers
who’ve had clients executed”.
While some lawyers receive “great respect from colleagues” for undertaking this type
of work, others do not. They want “humility from colleagues who’ve not experienced
having a client executed but who wish to oer advice or consolation” and “human-
itarian support to make them feel the importance of what they do with apprecia-
tion and respect, not criticism and the society’s reluctance to deal with it”. Support
is also necessary for lawyers coping with a case where they feel a miscarriage of jus-
tice has occurred.
In some jurisdictions, there is a community of lawyers working on death penalty cas-
es who can provide mutual support: a “close-knit community of capital defenders”
or “individuals [who] kn[o]w each other personally”. This is particularly important
when there is broad public support for the death penalty in the lawyer’s jurisdiction.
However, disagreements arise even within the community of capital defenders, for
example over issues such as how to respond when clients volunteer for the death
penalty. Therefore, lawyers who have to engage with these moral dilemmas may not
always be able to draw support from their community. Some survey respondents
indicated that only very few lawyers practice in this eld in their jurisdiction. For
them, the role of international organizations and individuals who work internation-
ally would be especially important.
See Sheer, “Fighting for clients’ lives”, op. cit., note , p. .
For example, Makwanyane Institute, Death Penalty Worldwide, accessed September ; see also
Training Resource: Protecting the rights of those facing the death penalty and life and long-term impris-
onment, Penal Reform International, accessed September .
Harrington, “A community divided”, op.cit., note , pp. -.
The Death Penalty in the OSCE Area: Background Paper 2022
Respondents identied other types of support, including educational and profession-
al support, nancial support for pro bono work, nancial and material resources, and
protection or security. The techniques used by experienced lawyers to get nancial
resources for a case could be shared among peers. Worryingly, some lawyers also em-
phasized they needed protection for their own safety, for example, from the threat
posed by certain government authorities.
Bar associations can provide particular support, although some of the lawyers who
participated in the survey considered that support from their bar is “very limited”, or
they do not know if this assistance is available in their own jurisdiction. Those sur-
veyed said that the bar association could, for example, be a place for obtaining ad-
vice and support from those experienced in working on these cases, for example, on
the “strategy and arguments available”. Others noted that the cooperation of a local
bar association would also put pressure on the government to highlight problems in
the system, such as violations of the right to a fair trial.
In addition, one lawyer noted that a bar association could monitor death penalty
trials, as well as the quality of legal representation:
“In my view the courts do not … regard death penalties with sucient serious
-
ness. A monitoring wing of the bar association would serve to enforce a sense
of gravity to death conrmation proceedings. This would make the task of de-
fence counsel easier”.
In some countries the independence of the bar association may be in question and,
therefore, less likely to provide help to lawyers on death penalty issues.
7.2. Steps towards abolition
Lawyers working on death penalty cases have a unique insight they can use to advo-
cate for abolition. Indeed, one lawyer responding to the survey considered it their
responsibility to do so: “lawyers should be open to working with organizers and ac-
tivists for the benet of their clients”. Their in-depth and nuanced knowledge of the
domestic processes can provide invaluable insights into the system and the under-
lying issues.
Some of the respondents to the survey consider that by defending individuals fac-
ing the death penalty — a punishment they view to be contrary to moral and legal
See, e.g., Faculty Spotlight: As He Rose In His Career, Bonnie Made Case Against Death Penalty, UVA
Today, April .
The Death Penalty in the OSCE Area: Background Paper 2022
standards — they are consequently part of the abolition movement. Others undertake
additional activities, including training for junior lawyers, participation in nation-
al and international conferences and symposiums calling for abolition of the death
penalty, or events discussing various aspects of the criminal proceedings that lead to
a death sentence. Others work directly with organizations campaigning against the
death penalty, or undertake their death penalty work as part of that organization and
may therefore become involved in its other activities. Some engage with parliamen-
tarians in other jurisdictions, and with UN mechanisms, to alert them to particular
cases where executions are pending, and lobby to prevent them from taking place.
These interventions can have an eect: “We have been able to save the lives of sev-
eral individuals by raising awareness and conducting advocacy with governments
and international organizations”.
Knowing that others in the profession support their cause also provides comfort to
the lawyers themselves. In turn, these engagements and activities, according to some
lawyers, enhance their own work in cases before the courts.
Some of the respondents take a particularly proactive role in becoming board mem-
bers of organizations whose purpose is to advocate for abolition, or participate in
studies and analysis of death sentences and laws in a particular jurisdiction or com-
parably across a number of countries.
Lawyers also engage with the media, bringing attention to their cases and to substan-
tive or procedural violations that have occurred in their clients’ cases. Some respon-
dents stated that the media attention received in some cases also led to changes in
legislation around abolition. As Susan Bandes writes, “The death penalty is especially
susceptible to the inuence of media, at a number of crucial pressure points. The feed-
back loop is especially visible at the legislative juncture, when crime control policies
are made”. Because of their experiences, lawyers can also draw attention to broad-
er systemic issues, such as problems in the criminal justice system more generally.
The very specic demands of lawyers working on death penalty cases highlight the
need for support in developing legal strategies and arguments, including through guid-
ance and training, but also in addressing the emotional and psychological challenges
they face. Bar associations, international organizations, and other individuals work-
ing on death penalty cases can all be a potential source of such support.
Bandes, Fear Factor: The Role of Media in Covering and Shaping the Death Penalty, op. cit., note , p. .
The Death Penalty in the OSCE Area: Background Paper 2022
. Conclusion
International law provides for a right to eective legal representation. Yet there is a
risk that more people may be sentenced to the death penalty because they do not re-
ceive an adequate defence. The survey upon which this paper draws highlights some
of the key threats to eective representation and some possible opportunities for
greater support to lawyers who work on these cases.
High quality representation by attorneys who are experienced in death penalty cases
is critical, because the stakes are extremely high. This experience should include not
only appropriate legal skills and knowledge, but also so skills that take into account
a client’s background and mental state. Unfortunately, legal training does not always
provide these skills.
The barriers to eective defence representation in capital cases include factors such
as inadequate nancial or other support, lack of an independent judiciary, an inabil-
ity to meet clients or speak to them condentially, limitations on access to relevant
resources including expertise, and lack of transparency in certain aspects of the pro
-
ceedings, including when the execution actually takes place. COVID- may have ex-
acerbated some of these challenges.
Although lawyers come to this area of work for dierent reasons, the psychological
impact of defending death penalty cases can have a profound negative eect. The re-
sponsibility that comes with the high stakes of death penalty work can dominate the
personal and professional life of a lawyer and an execution in particular can pose sig-
nicant psychological challenges both immediately and in the long-term.
Whilst many lawyers undertaking death penalty work are respected, others can be
subject to criticism and even harassment. In light of these substantial challenges,
there are a number of ways that the legal profession, both within the lawyer’s own
country, as well as internationally, can provide support. These include legal guid-
ance and training as well as resources to address the psychological challenges capi-
tal defenders face.
Part III: The situation
of the death penalty
in the OSCE region
. Retentionist participating states
1.1. Belarus
Introduction
Belarus is the only country in Europe that still carries out the death penalty. According
to Article of the Constitution of the Republic of Belarus, capital punishment may
be applied as an exceptional measure of punishment for some especially serious
crimes until it is abolished.
Article of the Criminal Code of the Republic of Belarus states that the death pen-
alty is “carried out by ring squad with no members of the public present. The execu-
tion of the death penalty shall be carried out separately for each convict and without
other death convicts present.” Some groups are exempt from the imposition of the
death penalty in the Criminal Code of Belarus; namely, women, people who were un-
der years of age when they committed the crime, and people who have reached
President of the Republic of Belarus, Constitution of the Republic of Belarus, article . The Criminal
Code of the Republic of Belarus, as amended up to January , envisages the death penalty for thirteen
crimes: Art (): “Unleashing or conducting a war of aggression”, Art (): “Act of Terrorism directed
against the representative of a foreign state or international organization”, Art (): “Act of International
Terrorism”, Art. : “Genocide”, Art. : ‘Crimes against humanity”, Art. : “Use of weapons of mass
destruction”, Art (): “Violation of laws and customs of war”, Art (): “Murder under aggravating
circumstances, Art () “Act of Terrorism”, Art (): “Conspiracy, or other actions, taken with a pur-
pose to seize state power”, Art (): “Act of Terrorism directed against state or public ocial”, Art.
(): “Sabotage”, Art. : “Murder of an employee of internal aairs bodies”.
FIDH – HRC “Viasna”, “Death Penalty in Belarus: Murder on (Un)lawful Grounds”, October , p. .
The Death Penalty in the OSCE Area: Background Paper 2022
the age of at the time of the sentencing. The President of Belarus has exercised
his power to grant clemency just three times since , with the second and third
taking place in .
The Belarusian authorities continue to hold the position that the country’s national
legislation is not contrary to international law and that the use of the death penalty
is only on a temporary basis.
During the reporting period, various observers voiced their concerns about the ap-
plication of the death penalty in Belarus. On World Day against the Death Penalty, in
October , the European Union (EU) and the Council of Europe urged Belarus to
move towards the abolition of capital punishment and welcomed the fact that “the
number of countries that are still executing people has continued to fall”. The EU
Ambassador to Belarus warned, “The increasing lack of justice and rule of law in the
country is reason enough for the introduction of a moratorium – the space for arbi-
trariness and juridical errors is vast”. Similarly, the European Parliament expressed
its concerns about the retention of the death penalty in Belarus, calling for its “im-
mediate and permanent abolition”.
In her May report to the Human Rights Council, the United Nations (UN) Special
Rapporteur on the situation of human rights in Belarus also reiterated that the coun-
try should “demonstrate political will and engage in education and advocacy in fa-
vour of abolishing the death penalty and, as an interim measure, promptly introduce
a moratorium on executions”.
Criminal Code of Belarus, Art. .(), op. cit., note .
Amnesty International “Belarus: Rare clemencies overshadowed by latest suspected execution”, June .
OSCE/ODIHR, The Death Penalty in the OSCE Area: Background Paper , note , p. . Nevertheless,
instead of moving towards abolition, Belarus recently adopted legislation that newly introduces the death
penalty for certain oences. On April (outside the reporting period for this paper), the Criminal
Code of Belarus was amended to introduce the death penalty for attempted acts of terrorism. Article
now states “the death penalty for preparation for a crime and attempted crime shall not be imposed, with
the exception of an attempt to commit the crimes provided for by Part of Article , Part of Article
, Part of Article and Part of Article of this Code”.
European and World Day against the Death Penalty, October : Joint statement by the High
Representative on behalf of the EU and the Secretary-General on behalf of the Council of Europe, Council
of the EU, October
World Day against the Death Penalty: EU urges Belarus to end capital punishment, EU Neighbours East,
Oct. .
The situation in Belarus aer one year of protests and their violent repression, P_TA(), European
Parliament, October .
UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Belarus,
May , A/HRC//, para. .
The Death Penalty in the OSCE Area: Background Paper 2022
The President of Belarus still considers that the abolition of capital punishment can
only be decided through a national referendum. In the last referendum on the top-
ic — in — the majority voted in favour of capital punishment. In September ,
the Belarusian President reportedly referred to the referendum as a reason to uphold
capital punishment, pointing out that he “did not go against the people’s opinion”.
Death sentences between April and March
At the end of the reporting period, at least one individual, Viktar Syarhel, was under
sentence of death in Belarus. In April , the President of Belarus commuted the
death sentences of Stanislau and Illia Kostseu to life imprisonment. The two broth-
ers had been on death row since January . Their conviction sparked an Urgent
Action initiative by Amnesty International calling for commutation of their sen-
tences. Shortly aer, in his second and third known acts of clemency, the President
replaced their death sentences with life imprisonment. No new death sentences
were handed down during the reporting period.
Executions between April and March
Belarusian authorities allegedly executed two people during the reporting period.
Viktar Paulau, who had been sentenced to death following a conviction for murdering
two people, was executed in May . Viktar Paulau’s family was only informed of his
execution in August, aer Vitebsk Regional Court provided them with a death certi-
cate. The UN Human Rights Committee condemned the execution of the prisoner,
whose case was still under review by the Committee at that time. Viktar Paulau’s
petition to the Committee alleged that he had been denied access to legal assis-
tance and was tortured in detention. This marked the th case since in which
UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Belarus,
April , UN Doc. A/HRC//, para. .
Ibid.
Lukashenko oers his take on death penalty, Belta, September .
EU Statement on the death penalty, Delegation of the European Union to the Council of Europe, April
World Report , Human Rights Watch,p. .
Amnesty International urges Belarus to stop execution of Kostseu brothers, Viasna, June .
World Report , Human Rights Watch, p. .
Ibid.
Global Report, Death Sentences and Executions , Amnesty International, p. .
Belarus: UN Human Rights Committee condemns execution, UN Treaty Body Press Release.
Ibid.
The Death Penalty in the OSCE Area: Background Paper 2022
the Belarusian authorities executed a prisoner whose petition remained pending be-
fore the Committee. Upon news of the likely execution, the EU also rearmed its
“irrevocable opposition to the use of capital punishment under any circumstances”.
In September , a state TV channel announced that another prisoner on death
row, Viktar Skrundzik, had been executed. He had been convicted of murder and
attempted murder, and his appeal to the Supreme Court had been dismissed. At
the end of the reporting period, the Belarusian authorities had not yet conrmed the
execution or informed his family.
Legislative developments
During the reporting period, Belarus amended its constitution. In September ,
the Chairperson of the Belarusian Constitutional Court and the Constitutional
Commission stated that the discussions on constitutional reform included the issue
of the death penalty; but no common ground was found. The Chairperson report
-
edly said that it would be necessary to hold a special referendum on the death pen alty
to determine its future. “It has already been considered in a referendum in .
And for a special referendum, appropriate work is required, sociological surveys, an
awareness campaign, and verication of the readiness of society to make such a re-
sponsible decision”, he was reported as saying by the Belarusian state-run media.
As expected, the dra amendments to the Constitution, published in December ,
made no reference to capital punishment. Therefore, capital punishment was not
part of the constitutional referendum held in February .
Areas of Concern
The application of the death penalty by the Belarusian authorities during the report-
ing period raises several concerns. This section focuses on a set of narrow issues,
Ibid.
Belarus: Statement by the Spokesperson on a likely execution, European Union External Action Service,
June .
Human Rights Watch, op. cit., note , p. .
Supreme Court conrms death sentence for Viktar Skrundzik, Viasna, May .
“Proposal to hold referendum on death penalty in Belarus”, Belta, September .
Ibid.
Ibid.
Ibid..
President of the Republic of Belarus, “New Belarus Constitution dra published for national debate”,
December .
The Death Penalty in the OSCE Area: Background Paper 2022
including lack of transparency in capital cases, fair trial rights, and the right to life.
Other systemic issues, such as the conditions of detention for death row prisoners,
are beyond the scope of this report.
Lack of Transparency
The process surrounding the application of the death penalty in Belarus remains se-
cretive. The yearly supplement of the UN Secretary General to the quinquennial
report on capital punishment repeatedly highlighted the lack of transparency sur-
rounding death sentences and executions in Belarus. The supplement pointed out
that the Government of Belarus had “declined to disclose statistics on death sentences
and executions on the grounds that it is a ‘State secret’”. As noted in the report, this
hinders both national and international insight into the death penalty in Belarus.
This lack of transparency was notable in the two executions carried out in the report-
ing period. Viktar Paulau’s execution in May was only conrmed and his fam-
ily notied in August. Nonetheless, his execution had been suspected since June,
aer his sister was denied permission to visit and his lawyer was told that his client
was no longer in the detention centre.
In June , the EU called for an end to the secrecy in the Belarusian penal sys-
tem. In October , the EU further stated that “the authorities have always pro-
vided scarce reporting on the executions, however, recently the procedure [sic] have
become even more secretive”. This lack of transparency is also notable in the case
of Viktar Skrundik. Belarusian state-run media reported his execution in September
, even though, at the time, his family still had not been informed. The same
month, Viktar’s sister conrmed her fear that he had already been executed, as the
last time she received correspondence from him was on August.
Yearly supplement of the Secretary-General to his quinquennial report on capital punishment, focusing
on the consequences of the lack of transparency in the application and imposition of the death penalty
on the enjoyment of human rights, A/HRC//, September , paras. , and .
Ibid., para. .
Ibid., para. .
Amnesty International, op. cit, note , p. .
Belarus: Further Information: Viktar Paulau may have been executed, Amnesty International, June
.
EU deplores likely execution of Viktar Paulau, Viasna, June .
EU urges Belarus to move towards death penalty abolition, Viasna, October .
Amnesty International, op. cit., note , p. .
The Death Penalty in the OSCE Area: Background Paper 2022
I
n her report of May , the UN Special Rapporteur on the situation of human rights
in Belarus expressed concerns over the lack of transparency surrounding executions
in the following terms: “A matter of particular concern for the Special Rapporteur
is the fact that information on the death penalty in Belarus continues to be classi-
ed as ‘condential’ by the State. Neither the convicted person nor the person’s rel-
atives receive notice of the execution date or information about the place of burial
aer the execution”.
This secrecy violates the rights not only of the convicts in capital cases, but also of their
relatives. In its Concluding Observations on the implementation of the International
Covenant on Civil and Political Rights (ICCPR) in Belarus, the UN Human Rights
Committee determined in that the country’s practice of secrecy surrounding ex-
ecutions constitutes a violation of Article of the ICCPR, both towards the inmates
and their families.
On March , the UN Human Rights Committee came to the same conclusion in
Tamara Selyun v. Belarus.151 In its views, the Committee recalled its General Comment
No. , in which it found that failing to provide information to the families of indi-
viduals deprived of life could violate their rights under article , which prohibits in-
human or degrading treatment. The Committee then concluded that the author of
the complaint, the mother of a person who was executed in , was denied her ar-
ticle right due to “the complete secrecy surrounding the date of the execution and
the location of the grave, as well as the refusal to hand over the body for burial”.
The Committee underlined the “continued anguish and mental stress caused to …
the mother of the condemned prisoner, by the persisting uncertainty of the circum-
stances surrounding his execution, as well as the location of his grave”, and consid-
ered that these circumstances had “the eect of intimidating or punishing the family
by intentionally leaving them in a state of uncertainty and mental distress.” Such
Report of the Special Rapporteur on the situation of human rights in Belarus, op. cit., note .
UN Human Rights Committee, Concluding observations on the h periodic report of Belarus, CCPR/C/
BLR/CO/, November , para. (b).
UN Human Rights Committee, Selyun v. Belarus, Views adopted by the Committee under article () of the
Optional Protocol, concerning Communication No. /, UN Doc. CCPR/C//D// ( March
/ April).
Ibid., para. .. See also Human Rights Committee, General comment No. () on article of the
International Covenant on Civil and Political Rights, on the right to life, CCPR/C/GC/, para. .
Human Rights Committee, op. cit., note , para. ..
Ibid.
The Death Penalty in the OSCE Area: Background Paper 2022
state action, the Committee concluded, amounted to inhuman treatment in violation
of article of the ICCPR.
The lack of information on the application of the death penalty, in particular the se-
crecy about the time of the execution, not only severely harms family members but
may also cause intense psychological suering to those on death row. The UN Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punish-
ment has previously stated that the anxiety and trauma caused by the threat of death
and that surrounding an execution may amount ill-treatment or even torture.
Right to life and fair trial rights
The violation of the right to life and of the right to a fair trial in Belarus remained a
key area of concern during the reporting period. In her May report, the UN
Special Rapporteur on the situation of human rights in Belarus underlined the contin-
uous restriction of the independence of the judiciary, which undermines the right to
a fair trial. The Special Rapporteur recommended, amongst other measures, that
Belarus develop a comprehensive reform of the judiciary “with a view to ensuring the
independence of judicial power from any interference by the executive branch”.
During the reporting period, the UN Human Rights Committee also highlighted its
concern for the disrespect of the right to a fair trial in Belarus. In July , it recog-
nized that Belarusian authorities had violated, among others, the principle of pre-
sumption of innocence, which is crucial to the protection of human rights and to a fair
trial. The Committee concluded that, in line with General Comments Nos. and
, the respect for the right to a fair trial was particularly important in capital trials
resulting in death sentences. Any such conviction, in the view of the Committee,
would be arbitrary and therefore in violation of the convicted person’s right to life un-
der article of the ICCPR. The Committee also concluded that Belarus had violated
Ibid.
General Assembly, Interim report of the Special Rapporteur on Torture and other cruel, inhuman and
degrading treatment or punishment, A//, August . See also OHCHR, Death Penalty and the
Victims, , pp. - on the “death row phenomenon”.
Report of the Special Rapporteur on the situation of human rights in Belarus, op. cit., note , para. .
Ibid.
UN Human Rights Committee, Mikhalenya v. Belarus, Views adopted by the Committee under article ()
of the Optional Protocol, concerning Communication No. /, UN Doc. No. CCPR/C//D//,
September , para. ..
Ibid. paras. ., ..
Ibid. para. ..
The Death Penalty in the OSCE Area: Background Paper 2022
its obligations under article of the Optional Protocol, as it executed the petitioner’s
son, Aleksei Mikhalenya, before the Committee had concluded its views on the com-
munication, in total disregard of its request for interim measures of protection.
In March , in the above-mentioned Tamara Selyun v. Belarus case, the Human
Rights Committee concluded that Belarus had violated the right to a fair trial under
article () of ICCPR. The Committee noted that the complainant claimed that
the lack of any eective remedies allowing her to request information from domes-
tic courts, about when her son was executed or where he was buried, constituted a
violation of article () of the Covenant. The Committee then went on to recall the
conclusion in its General Comment that “the failure of a State party to establish a
competent tribunal to determine rights and obligations in a suit at law or to allow ac-
cess to such a tribunal in specic cases would amount to a violation of article ”.
Given the facts presented by the complainant, and the failure of the Belarusian auth-
orities to provide any explanation of the circumstances, the Committee found a vio-
lation of article .
1.2. United States
Introduction
As of the end of the reporting period, American states, the federal government,
and the military still retained the death penalty by law. Thirty-six () American
states have either abolished capital punishment ( states) or not carried out an ex-
ecution in at least ten years (another states). In three of these states, governors
Ibid. paras. ., .. (“It is incompatible with its obligations under article of the Optional Protocol for a
State party to take any action that would prevent or frustrate the Committee in its consideration and ex-
amination of communications and in the expression of its Views.” Ibid. para. ..)
Human Rights Committee, Communication No. /, op. cit., note , para. ..
Ibid.
Ibid.
Ibid.
Alabama, Arizona, Arkansas, California, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana,
Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma, Oregon,
Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wyoming. See Death Penalty
Information Center, State and Federal Info, State by State.
Alaska, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts,
Michigan, Minnesota, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Rhode Island,
Vermont, Virginia, Washington, West Virginia, Wisconsin.
California, Oregon, Nevada, Utah, Kansas, South Carolina, North Carolina, Pennsylvania, Wyoming,
Montana, Louisiana, Kentucky, Indiana.
The Death Penalty in the OSCE Area: Background Paper 2022
have formally imposed moratoriums on executions, namely California, Oregon, and
Pennsylvania. Although formally retaining the death penalty, Indiana, Idaho, Kansas,
Kentucky, Louisiana, Montana, Nevada, North Carolina, South Carolina, Utah, and
Wyoming have not carried out an execution for ten years or more. Military author-
ities have not conducted an execution since .
The number of executions in the United States has declined consistently since
and this continued during the reporting period. No executions took place at the fed-
eral level, while executions were carried out by only ve states; the lowest num-
ber of state executions since . By comparison, executions took place during
the previous reporting period (-).
A poll conducted by Gallup in October across all states found that % of
Americans do not support the death penalty for a person convicted of murder, while
% are in favour. Alongside the poll, these results show the highest level of
opposition to capital punishment since the s.
During the reporting period, the United States continued to defend the legality of the
death penalty. At the OSCE Permanent Council, the US delegation repeatedly stated,
“international law does not prohibit capital punishment, and each country, and in
the case of the United States, each state in the union – as well as our federal govern-
ment – may make its own choice on the matter”. However, the US Mission to the
OSCE has also emphasized that President Biden has expressed his support for end-
ing the death penalty at the federal level and for giving incentives to U.S. states to
abolish it as well.
President Biden expressed support for abolishing the death penalty during his election
campaign, highlighting among others the risk of errors in capital cases. His election
States with no recent executions, Death Penalty Information Center, last updated May .
Amnesty International, op. cit., note , p. .
The Death Penalty in : End of Year Report, Death Penalty Information Center, p. .
Execution Database, Death Penalty Information Center.
Ibid.
Survey on the death penalty, results as of October , Gallup. The remaining % stated they had no
opinion.
Ibid.
Right of Reply to EU on Death Penalty, United States Mission to the OSCE, October ; Right of Reply
to EU on the Death Penalty, United States Mission to the OSCE, November ; Right of Reply on the
Death Penalty, United States Mission to the OSCE, December .
Ibid. (all three statements).
The Death Penalty in the OSCE Area: Background Paper 2022
signalled a change. On July , Merrick Garland, the US Attorney General, is-
sued a memorandum imposing a moratorium on federal executions to allow the
Department of Justice to undertake a review of executive branch policies adopted in
the last two years of the previous administration. However, while the moratorium
halts federal executions, it does not stop federal prosecutors from seeking the death
penalty. Nor does it preclude a future administration from simply re-starting execu-
tions. By the end of the reporting period, federal prosecutors were still defending
death penalty cases and the American president had not commuted the existing
federal death sentences.
In August , American Senators and four members of the House of
Representatives wrote two separate letters calling on Attorney General Merrick
Garland to stop seeking the death penalty in pending and future federal murder
trials. While commending the decision to impose a moratorium on federal exe-
cutions, both letters urged the Attorney General to take further steps towards elim-
inating the federal death penalty. Notably, the letter from the House stated, “The
Biden-Harris Administration was elected on the promise of abolishing the federal
death penalty, and we are committed to using every legislative tool to help fulll it.
However, it is critical that the Department of Justice moves with urgency like lives de-
pend on it, because they quite literally do”. The White House has largely remained
silent on the issue of the death penalty and has not undertaken any steps towards
death penalty abolition.
The Biden Plan for Strengthening America’s Commitment to Justice, Biden-Harris, (“Because we cannot
ensure we get death penalty cases right every time, Biden will work to pass legislation to eliminate the
death penalty at the federal level, and incentivize states to follow the federal government’s example”).
Attorney General Merrick B. Garland Imposes a Moratorium on Federal Executions; Orders Review of
Policies and Procedures, US Department of Justice, Oce of Public Aairs, July .
DOJ Takes Disjointed Action on Federal Death Penalty, American Bar Association, July .
The Power of Example. Whither the Biden Death Penalty Promise?, Amnesty International USA, June
, p. .
Rachel Sharp, Joe Biden grants clemency to people - but no federal death row inmates, The Independent,
April .
Letter to Attorney General Garland from Several Members of the U.S. Senate, August ; Letter to
Attorney General Garland from Several Members of the U.S. House of Representatives, August
Ibid.
Ibid.
The Death Penalty in the OSCE Area: Background Paper 2022
Newly imposed death sentences
Although it is dicult to nd ocial statistics for the entire reporting period, at the
end of , , individuals remained on death row in states, as well as in federal
and military prisons. As of January , the state with the largest death row
population was California with inmates, followed by Florida with inmates.
California’s moratorium on executions continues.
According to reports, death sentences were issued by courts in the US in , the
same number as in . In both and , the number of new capital sen-
tences for the year was the lowest since when the Supreme Court struck down
all existing capital punishments statutes in the United States in Furman v. Georgia.
As in , COVID- pandemic-related court closures and trial delays reportedly af-
fected the number of death sentences imposed in . This was the seventh con-
secutive year with fewer than executions and the second year with fewer than
new death sentences.
Executions between April and March
Eleven executions took place in ve states during the reporting period: four in
Oklahoma, three in Texas, two in Alabama, one in Missouri, and one in Mississippi.
All executions were by lethal injection. The federal government did not execute any-
one during this period, unlike the previous reporting period that saw an unusually
large number of federal death row executions.
Death Row, Death Penalty Information Center. Data on death row population and death sentences is only
available up to January . For this reason, it is not possible to provide accurate gures as of March
.
Death Sentences by Name, Race and County, Death Penalty Information Center, Sentencing Data,
Death sentences in the United States from by state and by year, Death Penalty Information Center.
Amnesty International, op. cit., note , p..
Execution Database, Death Penalty Information Center, op. cit., note . It was the rst execution of
Mississippi aer a long hiatus since . David Cox was put to death aer waiving his appeals and “vol-
unteering” to be executed. See Mississippi Readies for st Execution Since Aer Inmate Wins Right
to Waive Appeal, Newsweek, October .
The Death Penalty in the OSCE Area: Background Paper , OSCE/ODIHR, p..
The Death Penalty in the OSCE Area: Background Paper 2022
Date of
execution Name
No. of years in
death row
Ethnic
group Age Sex State Method
May Quintin Phillippe Jones Black Male Texas Lethal injection
Jun John William Hummel White Male Texas Lethal injection
Sep Rick Allan Rhoades White Male Texas Lethal injection
Oct Ernest Lee Johnson Black Male Missouri Lethal injection
Oct Willie B. Smith III Black Male Alabama Lethal injection
Oct John Marion Grant Black Male Oklahoma Lethal injection
Nov David Neal Cox Sr. White Male Mississippi Lethal injection
Dec Bigler Jobe Stouer II White Male Oklahoma Lethal injection
Jan
Donald Anthony Grant
Black Male Oklahoma Lethal injection
Jan Matthew Reeves Black Male Alabama Lethal injection
Feb Gilbert Ray Postelle White Male Oklahoma Lethal injection
Promising developments
Federal developments
As mentioned above, in July , Attorney General Merrick Garland issued a mem-
orandum formally pausing federal executions to allow the Department of Justice to
review the executive branch policies adopted in the last two years of the previous ad-
ministration, including policies related to authorized methods of execution.
The Department of Justice also took steps to withdraw previous notices of intent to
seek the death penalty. As of December , the Department had withdrawn
dierent notices led under the Trump administration. In addition, in February
, elected prosecutors from across the United States issued a joint statement
calling for systemic changes to the death penalty and pledging not to seek the death
penalty against individuals with “cognitive impairments or otherwise diminished
culpability”.
The gures have been ascertained from news reports and other open source information.
See US Department of Justice, op. cit., note .
Gabrielle Banks, “Merrick Garland withdrew the death penalty in cases. Does it signal a trend?”, Houston
Chronicle, December .
Joint statement from elected prosecutors pledging to work towards the elimination of the death penalty,
Fair and Just Prosecution, February .
The Death Penalty in the OSCE Area: Background Paper 2022
On March , the United States Supreme Court reversed an order by a Texas
court that denied the request of a death-row prisoner, John Henry Ramirez, to have
his pastor touch and pray over him during his execution.
Exonerations and clemencies
Only one prisoner was exonerated during the reporting period. In August ,
years aer his sentencing, Sherwood Brown was exonerated for a triple murder in
Mississippi. His conviction and death sentence were mostly based on false expert tes-
timony and the perjured testimony of a prison informant.
In November , two prisoners who had presented strong evidence supporting
their innocence, Julius Darius Jones (Oklahoma) and Pervis Payne (Tennessee), were
removed from death row and received life sentences instead. On November
, following intense domestic and international pressure questioning the valid-
ity of Jones’ conviction, the Oklahoma Governor commuted his sentence to life with-
out parole.
On November , a Tennessee judge lied Pervis Payne’s two death sentences,
aer determining that he had an intellectual disability. In January , the Texas
Court of Criminal Appeals lied Clion Young’s conviction and death sentence nearly
years aer he was found guilty of double murder. The court based its decision
on the “shocking prosecutorial misconduct that destroyed any semblance of a fair
trial” in Young’s case. This was an undeclared conict of interest — one of the pros-
ecutors in Young’s case was also working as a law clerk for the judge who presided
Supreme Court rules that Texas must allow death row prisoner’s pastor to touch and pray over him during
execution, Death Penalty Information Center, March .
Sherwood Brown Exonerated in Mississippi, th Death-Row Exoneration since , Death Penalty
Information Center, September . The most recent data from the National Registry of Exonerations
states that the most prevalent causes of wrongful convictions in death penalty cases are ocial miscon-
duct and perjury or false accusation. The Registry provides detailed information about every known ex-
oneration in the United States since — cases in which a person was wrongly convicted of a crime and
later cleared of all the charges based on new evidence of innocence.
Oklahoma Governor Grants Clemency to Julius Jones, Death Penalty Information Center, November
; Khaleda Rahman, Who is Pervis Payne? Tennessee inmate freed from death row due to intellectu-
al disability, Newsweek, November .
Oklahoma Governor Grants Clemency to Julius Jones, Death Penalty Information Center, op. cit., note
.
Newsweek, op. cit., note .
Texas Appeals Court Vacates Conviction of Death-Row Prisoner Clinton Young, Whose Prosecutor was
Secretly on the Payroll of the Judge Who Tried Him, Death Penalty Information Center, September
.
The Death Penalty in the OSCE Area: Background Paper 2022
over the trial and decided issues in his appeal. The prosecutor, in his clerking role,
had conducted legal research and made recommendations to the court on the pros-
ecution’s own lings.
On March , Texas State Representative Je Leach announced that more than
House members had signed a letter advocating for clemency for Melissa Lucio, a
survivor of gender-based violence who had been sentenced to death for the murder
of her two-year-old daughter. At the end of March, nearly members of the Texas
House of Representatives issued a bipartisan call for the Texas Board of Pardons and
Paroles and Governor Greg Abbott to grant her clemency. At the end of the re-
porting period, Melissa Lucio was still scheduled to be executed on April .
However, two days before this date, the Texas Court of Criminal Appeals halted her
execution, allowing a lower court to review the case.
Signicant Rulings
On August , the Governor of the state of Virginia granted seven Black men (the
Martinsville Seven”) posthumous pardon years aer being wrongfully convicted
and executed for the rape of a white woman. The defendants were interrogated by
police without legal counsel, threatened with release to a lynch mob, and convicted
by an all-white, all-male jury. In granting the posthumous pardon, the Governor
of the state of Virginia admitted that they were denied due process rights because of
their race. The Martinsville Seven’s execution in was the largest mass execu-
tion for rape in the history of the United States.
On October , the Oregon Supreme Court ruled that the death sentence
handed out to David Ray Bartol in violated the constitutional prohibition of
Ibid.
Ibid.
Bipartisan majority of Texas House of Representative calls for clemency for Melissa Lucio facing execu-
tion for likely accidental death of disabled daughter, Death Penalty Information Center, March .
Ibid.
Melissa Lucio’s Daughter Death May Have Been Accidental. Texas Has Scheduled Her Execution for April
, Death Penalty Information Center, February .
Texas court halts execution of Melissa Lucio, set to die in days, NBC News, April .
‘Martinsville ’ Granted Posthumous Pardons Years Aer Their Executions, Death Penalty Information
Center, September .
Ibid.
Ibid.
Ibid.
The Death Penalty in the OSCE Area: Background Paper 2022
“disproportionate punishment”, as his oence (rst-degree murder) was re-classi-
ed as non-capital by legislation. Under this legislation, the death penalty
may only be imposed in terrorism cases resulting in the deaths of two or more peo-
ple, premeditated murders of children under fourteen, prison murders committed
by those serving a sentence for aggravated murder, or premeditated murders of po-
lice or correctional ocers.
In Florida on April , a court lied the death sentence of Sonny Boy Oats (on
death row for over years) and imposed a life sentence, accepting a stipulation of
the defence and prosecution that Oats was ineligible for execution due to intel lectual
disability.
On August , Stanley Davis, a California death row inmate convicted of double
murder in , was re-sentenced to life imprisonment without parole aer prose-
cutors agreed that he had an intellectual disability. In a statement related to the
decision, the Los Angeles District Attorney justied his support for the sentencing
change, saying “[t]he death penalty has been shown to not deter crime, has a history
of racial bias and is scally irresponsible.”
Legislative developments
In April , the Tennessee state legislature voted overwhelmingly to advance legis-
lation that would allow prisoners on death row to challenge their capital sen tences
on the grounds of intellectual disability. At the end of the reporting period, the
Governor had not signed the legislation into law. Its introduction was inspired by the
case of Pervis Payne, described above. Payne was a death-row prisoner in Tennessee
who presented strong evidence of intellectual disability but was unable to le a claim
due to a loophole in Tennessee law that prevented such claims by individuals whose
Oregon Supreme Court Overturns Death Sentence in Decision that Could Clear the State’s Entire Death
Row, Death Penalty Information Center, October .
Ibid.
Sonny Boy Oats Found Ineligible for the Death Penalty Aer Years on Florida’s Death Row, Death Penalty
Information Center, April .
California death row inmate resentenced to life in prison, AP News, Sept. .
August , : Death Row Inmate with Intellectual Disability Resentenced to LWOP, Los Angeles County
District Attorney’s Oce.
Tennessee Legislature Passes Bill to Provide Death Row Prisoners Court Review of Intellectual Disability
Claims, Death Penalty Information Center, April .
The Death Penalty in the OSCE Area: Background Paper 2022
death sentences had been upheld on appeal prior to the Supreme Court rul-
ing prohibiting the death penalty against individuals with intellectual disability.
In February , Senate Bill , which would exempt individuals with severe men-
tal illness from death sentences, passed in the South Dakota state Senate, but was re-
jected by the state House of Representatives. The bill proposes prohibiting the use
of the death penalty for individuals with schizophrenia, major depression, bipolar
disorder, post-traumatic stress disorder, or schizoaective disorder.
In Kentucky, House Bill passed the House of Representatives on February
and the Senate on March . The legislation prohibits the use of the death pen-
alty against defendants diagnosed with four types of mental illness, namely schizo-
phrenia, schizoaective disorder, bipolar disorder and delusional disorder.
Areas of concern
The executions carried out during this reporting period raise multiple concerns.
While broader systematic issues, such as the conditions of detention of death row
prisoners, go beyond the scope of this report, this section will focus on the discrim-
inatory application of the death penalty, the methods of execution, and the secrecy
surrounding executions.
Ibid.
Senate Bill : “exempt any person suering from a severe mental illness from capital punishment” (leg-
islative history), South Dakota Legislature; see also Kentucky and South Dakota Advance Bills to Bar Death
Penalty for People with Severe Mental Illness, Death Penalty Information Center, February .
Senate Bill (full text of bill), South Dakota Legislature.
Kentucky Legislature Passes Bill Prohibiting Execution of People with Serious Mental Illness, Death
Penalty Information Center, March .
Ibid. The Kentucky governor signed the bill into law just aer the end of the reporting period and it became
legally binding on April , aer the end of the reporting period. Kentucky Becomes Second State
to Bar Imposing Death Penalty on Those Diagnosed as Seriously Mentally Ill, Death Penalty Information
Center, April .
The Death Penalty in the OSCE Area: Background Paper 2022
The discriminatory application of the death penalty
People suering from intellectual disability and/or mental illness
International human rights law calls for specic protection measures to ensure the
eective enjoyment of the right to life by people with disabilities, including psy-
chosocial or intellectual disabilities, on an equal basis with others. In its General
Comment no. , the UN Human Rights Committee called on States parties to “refrain
from imposing the death penalty on individuals who face special barriers in defend-
ing themselves on an equal basis with others, such as persons whose serious psycho-
social or intellectual disabilities impede their eective defence, and on persons who
have limited moral culpability.” The Committee also noted that States should “re-
frain from executing persons who have a diminished ability to understand the rea-
sons for their sentence, and persons whose execution would be exceptionally cruel
or would lead to exceptionally harsh results for them and their families, such as per-
sons of advanced age, parents of very young or dependent children, and individuals
who have suered serious human rights violations in the past.”
In the United States, the Supreme Court has held that executing people with intellec-
tual disabilities amounts to cruel and unusual punishment, which is prohibited by
the American Constitution; however, the decision gave states signicant discretion
in determining how such disabilities are dened. At least nine of the people ex-
ecuted during the reporting period claimed to suer from intellectual disability and/
or mental illness
On May , Quintin Philippe Jones was executed. Jones, who presented evi-
dence of an intellectual disability, had alleged that his lawyer failed to develop the
issue beforehand due to the highly restrictive denition of intellectual disability ap-
plied by Texas courts.
UN Convention on the Rights of Persons with Disabilities, Article – right to life; UN Human Rights
Committee, General comment No. , op. cit., note , para.
UN Human Rights Committee, General comment No. , op. cit., note , para. .
Ibid.
Atkins v. Virginia, Supreme Court of the United States, U.S. ().
State by State, Death Penalty Information Center, Last accessed: September .
Citing ‘Inexperience’ and ‘Miscommunication’, Texas Conducts Execution Without Media Witnesses, Death
Penalty Information Center, May .
Victims Family Seeks Clemency for Quintin Jones Facing May Execution in Texas, Death Penalty
Information Center, May .
The Death Penalty in the OSCE Area: Background Paper 2022
In Georgia, the law requires that a death row defendant seeking to overturn their
death sentence on the basis of intellectual disability must prove their condition “be-
yond a reasonable doubt”, the most onerous standard in the country. On June
, the Georgia Supreme Court ruled in Young v. the State of Georgia, upholding the
death sentence of Rodney Young despite his asserted intellectual disability. On
November , the American Civil Liberties Union led a petition for review by
the United States Supreme Court on behalf of Rodney Young stating, “Nowhere else
in all of constitutional law does a state require an individual asserting any constitu-
tional right to prove their factual entitlement to the right by such a severe burden.”
The petition was denied on February .
On June , Texas executed John William Hummel. Hummel was an hon-
ourably discharged former Marine who experienced service-related trauma. At the
sentencing, a psychologist attested to the likelihood of Hummel suering from a per-
sonality disorder. However, his lawyer failed to present evidence about Hummel’s
mental health at the trial.
On September , Texas executed Rick Allan Rhoades. Rhoades suered
from childhood trauma that caused brain damage, impairing his impulse control
and judgement.
David Cox was executed in Mississippi on November aer waiving his ap-
peals and “volunteering” for execution, although his erratic lings, and the state-
ments of his appeals’ lawyers, made clear that he was suering from depression.
On December , Oklahoma executed Bigler Jobe Stouer II, who had been diag-
nosed by a clinical and forensic psychologist as suering from an atypical personality
ACLU Asks Supreme Court to Review Georgia Law Permitting Executions of Persons with Intellectual
Disability, ACLU, November .
ACLU Statement on Georgia Supreme Court’s Decision in Rodney Young Case, ACLU, June .
ACLU asks Supreme Court to review Georgia law permitting executions of persons with intellectual dis-
ability, ACLU, November .
Rodney Renia Young vs. Georgia, Supreme Court of the United States.
Texas Executes John Hummel, Former- Marine with Service-Relate Trauma Whose Trial Lawyer Now
works for Prosecutor who is Trying to Execute Him, Death Penalty Information Center, June .
Ibid.
Texas Executes Rick Rhoades, the First Execution from Harris County in Two Years, Death Penalty
Information Center, September .
Ibid.
Execution ‘Volunteer’ First to be Put to Death in Mississippi in Nine Years, Death Penalty Information
Center, November .
The Death Penalty in the OSCE Area: Background Paper 2022
disorder. Nevertheless, Governor Kevin Stitt rejected a pardon and parole board
recommendation to commute his sentence to life without parole. At the OSCE
Permanent Council, concerns regarding his botched execution were raised in a num-
ber of statements, in particular from the EU and a group of nations represented by
Norway. In response, the United States reiterated that the death penalty does not
contradict their international obligations and argued that it is a matter for indi vidual
states to decide.
On November , the Supreme Court declined to review the case of federal death-
row prisoner, Wesley Coonce, although prosecutors and defence lawyers had agreed
on his ineligibility for the death penalty due to an intellectual disability caused by a
traumatic brain injury.
In October , the states of Missouri and Alabama proceeded with the executions
of Ernest Johnson and Willie B. Smith III, respectively, despite strong evidence of
intellectual disability. On October , Johnson was executed aer presenting
clear evidence of an intellectual disability. At the OSCE Permanent Council, the
EU stated that it was “disturbed” by his execution despite reports of him being men-
tally impaired, emphasizing that the execution contradicted international human
rights norms and minimum standards. According to the Death Penalty Information
Center, Missouri’s high court relied on “the opinion of a prosecution expert who was
never called to testify and whose test results contradicted key opinions expressed in
Oklahoma Executes Bigler Stouer aer Governor Rejects Board Recommendation for Clemency, Federal
Courts Deny Stay, Death Penalty Information Center, December .
Ibid.
EU on execution of Bigler Stouer in the US State of Oklahoma, OSCE Permanent Council, December
; Joint statement on the execution of Bigler Stouer in the US, OSCE Permanent Council, December
.
Right to Reply: Regarding the Death Penalty, OSCE Permanent Council, December .
Supreme Court Declines to Review Death Sentence in Case in which Federal Prosecutors and Defense
Agree Defendant’s Intellectual Disability Makes Him Ineligible for the Death Penalty, Death penalty
Information Center, November .
Death Penalty Information Center, “Missouri moves to execute intellectually disabled death-row prison-
er, as former governor, court justice, and faith and rights leaders seek mercy”, October ; . Death
Penalty Focus, Alabama Executes Willie B. Smith, November .
Death Penalty Information Center, “Missouri moves to execute intellectually disabled death-row prison-
er, as former governor, court justice, and faith and rights leaders seek mercy”, October .
OSCE Permanent Council, “EU on the execution of Ernest Johnson in the US State of Missouri”, October
. In response to the statement, the United States reiterated that the death penalty does not contra-
dict its international obligations. See: OSCE Permanent Council, “Right to Reply: Regarding the Death
Penalty”, October .
The Death Penalty in the OSCE Area: Background Paper 2022
his own expert report”. In the lead-up to Ernest Johnson’s execution, Pope Francis
and two Democratic members of the Missouri congressional delegation had issued
calls for his sentence to be set aside.
On October , Alabama executed Willie B. Smith despite the fact that a federal
appeals court had previously agreed he qualied as having an intellectual disability
under “accepted clinical denitions of the disorder”. Smith had received a form in
giving him the choice between lethal injection and nitrogen hypoxia as methods
of execution, the former being the default method. Executions by nitrogen hypox-
ia require prisoners to complete a form. However, due to “signicant cognitive de-
ciencies”, he could not understand the content of the form and did not complete it.
Smith did not receive any help with understanding what was asked of him. His law-
yers claimed that the state violated his rights under the Americans with Disabilities
Act as no reasonable accommodation for his disability was provided in the execution
election process; the courts rejected this argument.
In January , deciding on a similar case, the United States Supreme Court issued
a ruling that overturned an injunction issued by a federal district court and allowed
for the execution in Alabama of Matthew Reeves, a death-row prisoner with an intel-
lectual disability. Reeves, like Smith, received a form giving him the option to elect
for nitrogen hypoxia but, due to his intellectual disability, he was unable to complete
the form. His lawyers argued that Alabama’s failure to oer him accommodations
for his disability violated his rights under the Americans with Disabilities Act. In
her dissent, joined by two other justices, Justice Elena Kagan wrote, “the Court to-
day disregards the well-supported ndings made [by two lower courts], consigning
Death Penalty Information Center, Missouri Moves to Execute Intellectually Disabled Death-Row Prisoner,
As Former Governor, Court Justice, and Faith and Rights Leaders Seek Mercy, October .
Ibid.
Death Penalty Information Center, Alabama Executes intellectually Disabled Death-Row Prisoner,
October .
Death Penalty Information Center, Intellectually Disabled Alabama Death-Row Prisoner Appeals Denial
of Stay of Execution, Arguing Designation of Lethal Injection Violated Americans with Disabilities Act,
October .
Ibid.
Amnesty International, Global Report, Death Sentences and Executions , p. .
Divided Supreme Court Vacates Injunction, Permits Alabama to Execute Intellectually Disabled Prisoner,
Death Penalty Information Center, January .
Ibid.
Ibid.
The Death Penalty in the OSCE Area: Background Paper 2022
Reeves to a method of execution he would not have chosen if properly informed of
the alternatives”.
On January , Donald Anthony Grant was executed in Oklahoma, despite the fact
that he had been diagnosed with schizophrenia and brain damage. On February
, the same state executed Gilbert Ray Postelle who was intellectually impaired.
In February , the EU stated, “the execution of persons with a mental health con-
dition or psychosocial disability is particularly regrettable. It is contrary to widely ac-
cepted human rights norms and the minimum standards set forth in inter national
human rights instruments”. As of March , Ohio was the only state that for-
bids capital punishment for individuals with certain mental illnesses. As noted
above, on March , the State of Kentucky’s Senate gave nal legislative ap-
proval to a bill exempting severely mentally ill defendants from the death penalty.
Racial bias
The issue of race in the American criminal justice system is of continuing concern.
Of the people executed during the reporting period, six were Black men. As de-
scribed above, on November , Julius Jones’ death sentence was commuted just
hours before his planned execution. In urging the Governor to grant clem ency,
the National Association for the Advancement of Coloured People (NAACP) Legal
Defense and Educational Fund team pointed to the overt racism of a juror in Jones’
trial who had referred to Jones by a racial epithet and stated he should be lynched.
Ibid.
Oklahoma Executes Donald Grant: First U.S. Execution of is rd from County with Most Executions
Outside Texas, Death Penalty Information Center, January .
Oklahoma County becomes nation’s most prolic county executioner as State puts intellectually impaired
teen oender to death, Death Penalty Information Center, February .
EU statement on executions in the US States of Alabama and Oklahoma, European Union External Action,
February .
Ohio Bill Exempts People with Serious Illness from Death Penalty, University of Cincinnati Law Review,
September .
Kentucky Legislature Passes Bill Prohibiting Execution of People with Serious Mental Illness, Death Penalty
Information Center, March .
Death Penalty Information Center, “Enduring Injustice: the Persistence of Racial Discrimination in the
U.S. Death Penalty”, September .
Execution Database, Death Penalty Information Center.
Oklahoma Governor J. Kevin Stitt, Governor Stitt Commutes Julius Jones’ Sentence to Life Without
Possibility of Parole, November .
Letter to Governor J. Kevin Stitt, NAACP Legal Defense and Education Fund, November .
The Death Penalty in the OSCE Area: Background Paper 2022
The Inter-American Commission on Human Rights had also issued precautionary
measures on Julius Jones’ behalf, asking for consideration of violations of his right
to a fair trial, due process of law, equality before the law, and non-discrimination.
In June , as reported earlier, the Governor of Virginia granted post mortem par-
dons to seven young Black men convicted of raping a white woman by an all-white
jury in light of the “disturbing lack of due process in their trials and convictions” lead-
ing to their executions.
The execution of Rick Rhoades in September , also reported above, took place
amid attempts by his appeals’ lawyers to obtain information on the jury selection at
his trial, suspecting that some jurors may have been struck on the unconstitutional
basis of race. Nevertheless, Texas courts rejected the request for a stay of execution
to allow the investigation to proceed. Rhoades then led a civil rights complaint in
federal court seeking a stay, which was also denied. Rhoades’ attorneys nally pe-
titioned for a stay of execution in the United States Supreme Court pending ling of
a jury discrimination claim; the court rejected the application, allowing the execu-
tion to proceed although the juror records had not been produced.
ODIHR has been drawing attention to the issue of racial bias on death penalty cases
in the United States for years.
Execution procedure and methods of execution
As repeatedly raised in ODIHR’s reporting, certain methods of execution can consti-
tute cruel, inhuman and degrading treatment or punishment.
In June , the Death Penalty Information Center published information regarding
the renovation of Arizona’s gas chamber and the purchase of cyanide gas to execute
Inter-American Commission on Human Rights Resolution /, OAS, as cited in Amnesty International,
op. cit., note , p. .
Former Virginia Governor Ralph S. Northam, Governor Northam Grants Posthumous Pardons for
‘Martinsville Seven’ Years Aer Unjust Executions, August .
Texas Executes Rick Rhoades, the First Execution from Harris County in Two Years, Death Penalty
Information Center, September .
Ibid.
Ibid.
Rhoades v. Martinez, Justia Dockets & Filings.
Background Papers on the Death Penalty in the OSCE Area, – ODIHR.
Ibid.
The Death Penalty in the OSCE Area: Background Paper 2022
prisoners — a gas used by the Nazis during the Holocaust. In February , mem-
bers of the Arizona Jewish community led a suit to block the execution of people on
death row using this method. As stated by the Death Penalty Information Center’s
Executive Director, “You have to wonder what Arizona was thinking in believing
that in it is acceptable to execute people in a gas chamber with cyanide gas.”
Currently, Arizona requires prisoners awaiting execution to choose between the gas
chamber and lethal injection.
During the reporting period, at least three of the people executed chose an alter-
native method to lethal injection. The state of Oklahoma resumed executions in
October , while federal litigation was ongoing on the constitutionality of the le-
thal injection protocol and following a six-year hiatus due to the botched executions
of Clayton Lockett and Charles Warner in and , respectively. Despite prom-
ises by Oklahoma’s former Attorney General to halt executions until the constitution-
ality issue was resolved, the new Attorney General John O’Connor declined to honour
this promise. The state of Oklahoma scheduled seven executions over a ve-month
period from October to March ; four of which were carried out.
On October , Oklahoma botched John Marion Grant’s execution, which took
place in spite of the pendency of a federal trial on the very lethal injection protocol
Arizona Prepares for Executions with Gas Used in Holocaust Death Camps, Death Penalty Information
Center, June .
Arizona Jewish Community Sues to Bar State from Executing Prisoners with Gas Nazis Used in Holocaust,
Death Penalty Information Center, February .
Arizona ‘refurbishes’ its gas chambers to prepare for executions, documents reveal, The Guardian, May
.
Arizona Prepares for Executions with Gas Used in Holocaust Death Camps, Death Penalty Information
Center, June .
Willie B. Smith III (The Death Penalty in : End of Year Report, Death Penalty Information Center, op.
cit., note . p.), Donald Anthony Grant (Oklahoma executes Donald Grant: First U.S. executions of
is rd from County with most executions outside Texas, Death Penalty Information Center, January
) and Matthew Reeves III (Alabama Court Issues Injunction Against Executing Matthew Reeves by
Any Method but Nitrogen Hypoxia, Death Penalty Information Center, January ).
State and Federal Info – Oklahoma, Death Penalty Information Center.
Oklahoma Executes John Grant Aer Supreme Court Vacates Stay; Execution Proceeds Despite Pending
Trial on Constitutionality of State’s Lethal-Injection Process, Death Penalty Information Center, October
. For the relevant transcripts where the state’s commitments were made, see Transcript of motion
hearing before the Honourable Stephen P. Friot United States District Judge, United States District Court
for the Western District of Oklahoma, May ; Motion and brief in support for preliminary injunction
on behalf of plaintis Donald Grant, John Grant, Julius Jones and Gilbert Postelle, United States District
Court for the Western District of Oklahoma, October .
State and Federal Info – Oklahoma, Death Penalty Information Center.
Execution Database, Death Penalty Information Center, op. cit., note .
The Death Penalty in the OSCE Area: Background Paper 2022
used to kill him. Oklahoma’s three-drug execution protocol uses a combination of
midazolam and the paralytic drug vecuronium bromide, followed by the drug potas-
sium chloride to stop the person’s heart. Medical experts have criticized the use of
midazolam in lethal injection procedures due to the sensation of drowning and as-
phyxia it may provoke. According to journalists who observed Grant’s execution,
following injection of this substance, he experienced full-body convulsions and vom-
iting for nearly minutes. Oklahoma’s Department of Corrections said the execu-
tion occurred “without complication”. Grant’s autopsy, nevertheless, showed that
he suered “pulmonary edema and intramuscular haemorrhaging, and aspirated on
his vomit as a result of the lethal injection”.
On November , the EU issued a statement at the OSCE Permanent Council on
the resumption of executions in Oklahoma. Its statement expressed that it was
“deeply disturbed by eyewitness reports indicating that Mr. John Marion Grant died
in great distress, reportedly due to his reaction to the drug combination used in his
execution. This method had previously resulted in the controversial executions of
Clayton Locket in April and Charles Warner in January , leading to a de fac-
to moratorium and ongoing court proceedings over whether Oklahoma’s execution
protocol violates the American Constitution’s eighth amendment protection against
cruel and unusual punishment.”
A six-day federal trial on the constitutionality of Oklahoma’s lethal injection proto-
col occurred in the rst week of March , where evidence was presented demon-
strating that Oklahoma’s execution team lled out paperwork indicating the state had
used an unauthorized chemical. The state’s chief corrections ocial denied there
had been any errors, describing the appearance of the wrong chemical in state exe-
cution records as a transcription error. During the trial, testimony was given as to
Autopsy Shows John Grant Suered Pulmonary Edema and Intramuscular Hemorrhage and Aspirated
Vomit During Oklahoma Execution, Death Penalty Information Center, February .
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
EU Statement on the resumption of executions in the US State of Oklahoma at the OSCE Permanent Council
No. , Vienna, November .
Ibid.
Evidence of ‘Torturous’ Fluid in the Lungs, Drug Mislabeling Highlight Federal Trial on Constitutionality
of Oklahoma Lethal-Injection Protocol, Death Penalty Information Center, March .
Ibid.
The Death Penalty in the OSCE Area: Background Paper 2022
the inadequacy of midazolam in preventing extremely painful sensations caused by
the other drugs in the lethal injection cocktail. A pathologist described the sensa-
tions of pulmonary oedema as “doom, panic, drowning, and asphyxiation,” and stat-
ed that oedemas like this were caused by midazolam. He also testied that John
Grant and Bigler Jobe Stouer II, executed in December , had experienced pul-
monary oedema. Both autopsy reports noted that their lungs were full of uid and
weighed signicantly more than an average male’s should.
In May , South Carolina adopted legislation that made the state’s default exe
-
cution method the electric chair, with death by ring squad as an alternative. In
March , the South Carolina Department of Corrections of South Carolina an-
nounced it was ready to start executions by ring squad following preparations.
Although South Carolina has not carried out any executions since , these new de-
velopments eliminated major obstacles in the state’s eorts to resume carrying out
death sentences.
Secrecy surrounding executions
During the reporting period, the legislatures of two states, Idaho and Florida, intro-
duced bills to undermine transparency and increase secrecy in the conduct of exe-
cutions. In Florida, House Bill and Senate Bill both passed in the House and
the Senate in March . The bills, later signed into law by the governor, absolve
the Department of Corrections from publicly revealing the names of companies that
deliver lethal injection drugs and of those who administer them.
In Idaho, House Bill proposed to conceal the supplier of the drugs used for
executions, provide anonymity for the medical sta and team involved in execu-
tions, and prevent disciplinary actions against medical professionals because of
Evidence of ‘Torturous’ Fluid in the Lungs, Drug Mislabeling Highlight Federal Trial on Constitutionality
of Oklahoma Lethal-Injection Protocol, Death Penalty Information Center March .
Ibid.
Ibid.
South Carolina Completes Preparations for Firing Squad Executions, Death Penalty Information Center,
March .
Ibid.
Ibid.
See: SB : Public Records/Information or Records/Executions, Florida Senate, passed on March ,
and HB : Pub. Rec./Execution Information, approved by the Governor May , .
Ibid; Execution Secrecy Bill Passes in Florida, Fails in Idaho, Death Penalty Information Center, March
.
The Death Penalty in the OSCE Area: Background Paper 2022
their participation in executions. While this bill initially failed to pass in the
Senate Committee on March (on a tie - vote), the Senate Judiciary and Rules
Committee chairperson determined, in an unprecedented procedural decision that
departed from previous practice, that the tied vote was not determinative and that the
bill could be reconsidered by the Committee. On reconsideration, the bill passed
the Committee with an additional vote from a previously absent member and ad-
vanced to the Senate, where it passed on March by a – vote, and was
subsequently signed into law on March .
Other issues of concern relating to executions
In Alabama, trial courts remain able to impose the death penalty based on a recom-
mendation from a non-unanimous jury. In alone, there was not a single death
sentence that was a unanimous decision. According to the Equal Justice Initiative,
of the people on Alabama’s death row in October , % would not have quali-
ed for death sentences in any other American state because they did not have unani-
mous jury verdicts. On February , at a meeting of the Committee of Ministers
of the Council of Europe, the EU highlighted that Matthew Reeves’ death sentence
was based on a non-unanimous jury decision in Alabama. At the OSCE Permanent
Council, the EU also regretted Reeves’ execution and reiterated that it contradicts in-
ternational human rights norms and minimum standards.
Quintin Jones’ May execution in Texas took place without media witnesses pres-
ent, raising concerns about the lack of transparency.
House Bill , State of Idaho; see also Idaho Expands Execution Secrecy Aer Senate Committee
Reconsiders Failed Vote, Death Penalty Information Center, March
Idaho Expands Execution Secrecy Aer Senate Committee Reconsiders Failed Vote, Death Penalty
Information Center, March .
Ibid. The bill was passed into law in July . Idaho Statutes, Idaho Legislature ocial website, Title
“Criminal Procedure”, Chapter “Executions”.
The Death Penalty in : End of Year Report, Death Penalty Information Center, op. cit., note , p. .
Ibid.
Alabama Executes Willie Smith as Other States Retreat from Lethal Punishment, Equal Justice Initiative,
October
EU Statement on executions in the US States of Alabama and Oklahoma, European Union External Action,
February .
“EU on the Execution of Matthew Reeves in the US State of Alabama” OSCE Permanent Council No. ,
Vienna, February .
Citing ‘Inexperience’ and ‘Miscommunication’, Texas Conducts Execution Without Media Witnesses, Death
Penalty Information Center, May .
The Death Penalty in the OSCE Area: Background Paper 2022
. Abolitionist participating States
2.1. New developments at international and regional levels
on the abolition of the death penalty
Kyrgyzstan formally prohibited the death penalty in its new Constitution adopted in
May . Although the death penalty had already been suspended in and later
abolished in , Article of the new Constitution clearly states, “The death pen-
alty is prohibited.”
Other abolitionist OSCE participating States continue to advocate for the end of the
death penalty, including through engagement at global and regional levels. This advo-
cacy took place in various forums including the United Nations, the Council of Europe
and the EU. These eorts highlight the growing trend towards universal abolition of
the death penalty and its discriminatory application, as well as the death penalty’s
failure as a criminal justice tool, including its lack of deterrent eect.
On March , the Committee of Ministers of the Council of Europe adopted
Recommendation CM/Rec() on measures against the trade in goods used for
the death penalty, torture and other cruel, inhuman or degrading treatment or pun-
ishment. In April , the Committee asked Member States to take steps to en-
sure that their domestic law and practices do not contribute to trade in items that
are “inherently abusive”, as well as any goods that could be used for the death pen-
alty, torture or other ill treatment. In May, the German Chair of the Committee, in
cooperation with Amnesty International, the Omega Research Foundation and the
Steering Committee for Human Rights, held a webinar that sought to provide sup-
port to national authorities and civil society in implementing Recommendation CM/
Rec() at the domestic level.
In April and October , during its st and th meetings respectively, the
Committee underlined its unambiguous opposition to the death penalty and re-
peated its rm calls for abolition. During the rst meeting, the EU welcomed the
Recommendation CM/Rec() and Explanatory Memorandum to the Recommendation, Council of
Europe, April .
What measures should be taken against the trade in goods used for the purpose of executions or torture?,
Council of Europe, Newsroom, April .
Webinar on trade in goods used for the death penalty, torture and cruel, inhuman or degrading treatment
or punishment, Council of Europe, Newsroom, May .
EU Statement on the Death Penalty, European Union External Action, April ; EU Statement on the
Death Penalty, European Union External Action, October .
The Death Penalty in the OSCE Area: Background Paper 2022
Committee’s adoption of Recommendation CM/Rec() and called on Member
States of the Council of Europe to make full use of it.
2.2. Participating States’ engagement in national or international
activities relevant to the issue of the death penalty
On May , the Portuguese Presidency of the Council of the EU and the Permanent
Representation of Portugal to the OSCE held an online International Conference on
the Death Penalty. This included keynote speeches by the Director of ODIHR, the EU
Special Representative on Human Rights and the Director-General of Human Rights
and Rule of Law of the Council of Europe.
In his keynote speech, ODIHR’s Director noted “a growing international consensus
viewing the death penalty as a form of punishment that cannot be fully reconciled
with the right to life” and that both from a medical and human rights standpoint it
was “practically impossible to carry out executions without violating the prohibition
of torture or other ill-treatment.”
The Director-General of Human Rights and Rule of Law at the Council of Europe said,
“[T]he arguments against the death penalty are well-known. It is cruel. Irreversible.
Discriminatory. It has no restorative eect on victims of crime. It is not dissuasive. It
is ineective, incompatible with fundamental rights. Socially unnecessary and mor-
ally unacceptable. A state cannot claim to be delivering justice if it annihilates hu-
man dignity by using violence.”
In August , the UN Oce of the High Commissioner for Human Rights published
a report on the High-level Panel Discussion on the Question of The Death Penalty.
In it, the High Commissioner also highlighted the absence of evidence showing the
death penalty deterred crime more eectively than any other punishment. The report
also highlighted the discriminatory application of capital punishment and reiterated
that the death penalty oen disproportionately aects those who are most vulnerable.
In September , the UN Secretary-General issued the yearly supplement to his
quinquennial report on capital punishment, in which he focused on the lack of trans-
parency in the imposition and application of the death penalty. He drew attention to
the importance of clear information on death penalty processes for convicted people
and their families in order to prevent the iniction of torture or other cruel, inhuman
or degrading treatment. He also stressed that the failure to provide information ex-
acerbates the discrimination that vulnerable or marginalized groups face. He called
European Union External Action, April , op. cit., note .
The Death Penalty in the OSCE Area: Background Paper 2022
for transparency in the assessment of and decision about clemency petitions, and re-
ferred to the pointed failure of Belarus in this regard.
In the supplement, the Secretary General emphasized that retentionist states should
impose the death penalty only for the “most serious crimes”, while also urging all
states to establish a moratorium on executions with the ultimate goal of its abolition.
He highlighted that, in countries where there is public support for the death penalty,
it is commonly based on a misconception that this punishment acts as a disincentive
to serious crimes. The report welcomed the positive steps taken by various countries
towards the abolition of the death penalty and also called on countries to comply fully
with the prohibition of cruel, inhuman or degrading treatment.
The th World Day Against the Death Penalty, in October , was dedicated to
the impact of the death penalty on women. As in previous years, various organiza-
tions used the Day to reiterate their dedication to the abolition of death penalty. The
High Representative, on behalf of the EU, and the Secretary-General, on behalf of
the Council of Europe, issued a Joint Statement, rearming their strong opposition
to the death penalty and calling for its abolition. The joint statement emphasized the
existence of gender-based discrimination in capital criminal proceedings and gen-
der imbalances for oences related to sexual morality, such as adultery, where death
penalty rates are higher for women. The statement also welcomed the fact that the
number of countries imposing capital punishment continued to decline, and stressed
the need to end the trade in goods used for the death penalty in order to hasten the
demise of this form of punishment.
In its own annual statement to mark World Day Against the Death Penalty, ODIHR un-
derlined that “working towards an OSCE region free from capital punishment should
be a priority for all OSCE countries”. In the statement, the Director of ODIHR armed
that the change of public attitudes, the de-politicization of the death penalty and the
achievement of full abolition across the OSCE area would be necessary to consoli-
date positive trends on this topic.
Several OSCE participating States delivered statements at the th Plenary Meeting
of the OSCE Permanent Council upon the World Day Against the Death Penalty in
October . The representative of Switzerland, speaking also on behalf of Canada,
Iceland, Liechtenstein, and Norway, welcomed the global trend, visible in the OSCE
region, towards the abolition of capital punishment, emphasizing that it has no
The Death Penalty in the OSCE Area: Background Paper 2022
deterrent eect on crime and is discriminatory in nature. The statement also re-
ferred to repeated instances of botched lethal injections and emphasized that not
only capital punishment but also the extended time that the condemned await execu-
tion constitute torture or cruel, inhuman, or degrading treatment or punishment.
In its statement, the United Kingdom rearmed its longstanding policy to oppose
the death penalty in all circumstances and assured its continuous dedication to assist
in the abolition of this punishment around the world. At this same meeting, the
EU delegation delivered a statement welcoming the constant steps taken towards the
global abolition of capital punishment and underlining its profound concern about
the lack of transparency and secrecy in the death penalty system in Belarus. It also
called on the two retentionist participating States to put in place a moratorium on
exe cutions with the ultimate goal of abolition.
On November , the United States exercised its right to reply, reiterating its un-
derstanding that international law does not prohibit the death penalty, while also em-
phasizing that federal executions were on hold and stressing that it was a priority for
the current US administration to review the federal death penalty.
On December , to celebrate the rd anniversary of the adoption of the
Universal Declaration of Human Rights, the Death Penalty Project called for the uni-
versal abolition of the death penalty on the basis that capital punishment violates the
most fundamental human right, the right to life, as well as the prohibitions on tor-
ture or cruel, inhuman or degrading punishment.
. De-facto abolitionist participating States
Within the OSCE region and during the reporting period, the Russian Federation and
Tajikistan continued to observe the ocial moratoriums they established in
and respectively, making them de facto abolitionist states, although their law
still provides for capital punishment. In addition, neither has shown their intention
Joint Statement on World Day Against the Death Penalty, Norwegian Permanent Delegation to the OSCE
delivered by the Permanent Mission of Switzerland to the OSCE, at the th Permanent Council of the
OSCE, October .
Ibid.
World Day Against the Death Penalty : UK Statement, UK Government, Speech, October .
Statement by the Slovenian EU Presidency on the European and World Day against the Death Penalty,
OSCE, October .
Ibid.
United States Mission to the OSCE, op. cit., note .
The Death Penalty in the OSCE Area: Background Paper 2022
to abolish it by ratifying the Second Optional Protocol to the ICCPR. As a mem-
ber State of the Council of Europe until early , the Russian Federation also did
not ratify Protocol No. to the Convention for the Protection of Human Rights
and Fundamental Freedoms concerning the abolition of the death penalty in all
circumstances.
Russia’s Criminal Code contains a number of capital crimes, including aggravat-
ed murder, assassination attempts against a state or public gure, attempts on the
life of a person administering justice or preliminary investigations, attempts on the
life of a law enforcement ocial, and genocide. The law prohibits capital punish-
ment for women and for oenders under the age of or over at the time of sen-
tencing. However, as of the end of the reporting period, the country had in place
a mora torium on the death penalty imposed by the Constitutional Court in that
has twice been upheld by it.
During the reporting period, debates about the resumption of the death penalty in the
Russian Federation reignited. In December , the Head of the Constitutional Court
wrote that the moratorium on the death penalty had been a surrender to values that
were “alien to the Russian national sense of justice”. Aer Russia’s suspension from
its rights of representation, both in the Committee and in the Parliamentary Assembly
of the Council of Europe on February , Dmitry Medvedev, the country’s for-
mer prime minister and president and current Deputy Chair of its Security Council,
was quoted by the state-owned media as calling the suspension a “good opportunity
to restore a number of important instruments to prevent especially serious crimes,
such as the death penalty for the most dangerous criminals.” The deputy head of the
Duma’s legal committee, in response to the suspension, argued that the moratorium
Status of ratication interactive dashboard, OHCHR.
Chart of signatures and ratications of Treaty , Council of Europe, Protocol No. to the Convention
for the Protection of Human Rights and Fundamental Freedoms concerning the abolition of the death
penalty in all circumstances (ETS No. ). Aer years of membership, the Committee of Ministers
decided that, in the context of the procedure launched under Article of the Statute of the Council of
Europe, the Russian Federation would cease to be a member of the Council of Europe. See European Union
External Action, Delegation of the European Union to the Council of Europe, Committee of Ministers de-
cides Russia ceases to be a member of the Council of Europe, March .
Criminal Code of the Russian Federation (amended Mar. ), Articles ., , , and .
Ibid., Article. , para. .
Reuters, “Russian court extends moratorium on death penalty”, November . See also BBC News,
“Russia to decide on death penalty moratorium”, November .
Russia’s dark path towards the death penalty, The Spectator April .
Dmitry Medvedev vows to reintroduce death penalty”, The Barents Observer, February (quoting
from RIA Novosti’s Telegram channel).
The Death Penalty in the OSCE Area: Background Paper 2022
no longer applied and that the Russian Federation could immediately resume execu-
tions given the political will to do so. He further added that death penalty should
be used as a last resort to punish serial killers, serial paedophiles and terrorists.
On March , following Russia’s formal departure from the Council of Europe,
Medvedev followed up on his earlier comments and stated that there were no longer
any barriers to reintroducing the death penalty, since the moratorium could be li-
ed depending on circumstances in the country. State-operated media also report-
ed that the Chairman of the Russian president’s Council for the Development of Civil
Society and Human Rights stated that the reinstatement of the death penalty “could
arise” in relation to the investigation of war crimes. On the same day, however, the
Representative of the Federation Council in the Constitutional Court denied the pos-
sibility of reintroducing the death penalty, stating it would require amendments to
the Constitution.
In Tajikistan, the Constitution allows for capital punishment, stipulating that “[n]o
person may be deprived of life except by the verdict of a court for a very serious
crime,” which the criminal law provides as aggravated murder, terrorism-related
oences resulting in death and not resulting in death, rape not resulting in death, war
crimes, crimes against humanity and genocide. The law excludes women, people
with intellectual disabilities, the mentally ill and the elderly. The last executions in
Tajikistan took place in , making it a de facto abolitionist state.
Following the Universal Periodic Review (UPR) by the UN Human Rights Council,
Tajikistan agreed to several recommendations concerning the ratication of the Second
Optional Protocol to the ICCPR and the complete abolition of the death penalty.
During the consideration of the outcomes of the UPR, the Permanent Representative
: , Vesti.ru, February .
Ibid.
Medvedev assessed the likelihood of the return of the death penalty, RIA Novosti, March .
Ibid.
: , News.ru, May .
Constitution of the Republic of Tajikistan, Article , Ministry of Foreign Aairs of the Republic of
Tajikistan.
See “Tajikistan”, Cornell Center on Death Penalty Worldwide, Death Penalty Database.
Ibid.
See Tajikistan, World Coalition Against the Death Penalty.
Report of the Working Group on the Universal Periodic Review – Tajikistan – Addendum, A/HRC///
Add,, UN Human Rights Council, December . Read in conjunction with Report of the Working
Group on the Universal Period Review – Tajikistan, A/HRC//, UN Human Rights Council, January .
The Death Penalty in the OSCE Area: Background Paper 2022
of Tajikistan to the UN Oce in Geneva stated that Tajikistan had always sought to
build a democratic society in which human rights are “of the highest value”. He also
stressed Tajikistan’s commitment to “fullling its international human rights obliga-
tions in good faith” and its readiness for further cooperation to do so.
3.1. Abolitionist for ordinary crimes only
Kazakhstan abolished the death penalty for all crimes during the reporting period.
For several years, Kazakhstan had been dened as de facto abolitionist in ODIHR
Background Papers on the Death Penalty in the OSCE Area. It was later referred to
as “abolitionist for ordinary crimes only”, a United Nations designation indicating that
the country reserved capital punishment for certain categories of exceptional crimes
including those taking place during war, treason, terrorism or armed insurrection.
Aer passing a bill authorizing the ratication of the Second Optional Protocol to
the ICCPR aiming at the abolition of the death penalty, on December , the
President of Kazakhstan signed into law a bill eradicating the death penalty from the
list of applicable penalties for oences in the Criminal Code and other relevant leg-
islative acts. This provided for the commutation of the last remaining death sen-
tence. On January , the EU welcomed the abolition of capital punishment in
the country, stating, “The complete exclusion of capital punishment from Kazakhstan’s
criminal code, following last year’s ratication of the UN second Optional Protocol
to the International Covenant on Civil and Political Rights, is an important and en-
couraging step”.
On March , during his State of the Nation Address to the People of Kazakhstan
entitled “New Kazakhstan: the Path of Renewal and Modernization”, the President of
Kazakhstan stated that the Constitution required amendment to formally abolish the
Human Rights Council Adopts Outcomes of Universal Periodic Review of Saint Vincent and the Grenadines,
Papua New Guinea, Tajikistan and Tanzania, United Nations, Human Rights Council Press Release,
March .
Ibid.
Background Papers on the Death Penalty in the OSCE Area, -, ODIHR, op. cit., note .
Report of the Secretary-General, United Nations Economic and Social Council, “Capital punishment and
implementation of the safeguards guaranteeing protection of the rights of those facing the death penal-
ty”, E//, April , para. .
Amnesty International, op. cit., note , p..
Ibid.
Statement by the French EU Presidency in response to the address by Deputy Prime Minister and Minister
of Foreign Aairs of Kazakhstan, H.E. Mr. Mukhtar Tileuberdi, OSCE Permanent Council, January
The Death Penalty in the OSCE Area: Background Paper 2022
death penalty. The International Commission against Death Penalty emphatically
welcomed this development.
On March , Kazakhstan deposited the instruments of ratication of the Second
Optional Protocol to the ICCPR with the UN Secretary General, enabling the Protocol
to enter into force in the country on June . Kazakhstan’s obligations now in
-
clude the prohibition of executions and the adoption of all domestic measures aiming
formally to repeal the death penalty. The Director of the International Commission
against the Death Penalty congratulated the country for the ratication, calling it “an
international rearmation of [Kazakhstan’s] commitment to the total abolition of the
death penalty”.
Kazakhstan completes accession to major international instrument on abolition of death penalty,
Kazinform, March .
Kazakhstan became the th State to ratify the Second Optional Protocol to the International Covenant
on Civil and Political Rights, International Commission Against Death Penalty, March .
Kazakhstan raties the Second Optional Protocol to the ICCPR, World Coalition Against the Death Penalty,
April .
On June , following the end of the reporting period, amendments to the Kazakhstan Constitution
came into force as a result of people’s referendum. The death penalty is now fully prohibited in the
Constitution.
International Commission Against Death Penalty, op. cit., note .
