More than 95 nations worldwide have abandoned the use of the death penalty. Except for the vast majority of countries in Western Europe, North America and South America, United States along sides with China, Iraq and Iran is one of the major users of Capital Punishment. In the United States, 23 of 400 innocent people convicted of capital punishment have been executed costing the government an increase of 23 times $1.25 million more than a non capital sentence of life in imprisonment. Moveover, since 1990, there has been execution of the mentally ill and six executions of juvenile offenders in the United States - which violate Article 6 (5) of the International Covenant on Civil and Political Rights (ICCPR), Article 37 (a) of the United Nation's Convention on the Rights of the Child and UN ECOSOC Safeguards guaranteeing the protection of the rights of those facing the death penalty, (GA Resolution 1984/50). All of these Covenants the United States have signed and ratified. Once again, since 1972, the legality and constitutionality of Capital punishment are being questioned by the anti-capital punishment advocates worldwide. Should the United States consider amending its Constitution to include an amendment that prohibits the death penalty sentence as capital punishment?

Prior to 1976, capital punishment was condemned to be unconstitutional. In the 1972 Supreme Court case, Furman v. Georgia, the Court acknowledged that the death penalty had been in use since 1622 and therefore violated the eighth and the fourteenth Amendments because it constituted cruel and unusual punishment without due process of law. Furthermore the sentence of death did not arbitrate race discrimination and often the sentence was not deserving of the crimes. Then in 1976, the court ruled in Gregg v. Georgia, that the death penalty was constitutional on the grounds that, "trial juries free to sentence to death" or life without any standards or guidelines, was; "cruel and unusual punishment" in violation of the Eighth and Fourteenth Amendments, but it did not violate the constitution thereafter.

Under the Section 5 of the Fourteenth Amendment of the Constitution, Congress is given the explicit power to enforce, by appropriate legislation the rights of all citizens to due process of law and equal protection of the laws. In many cases, states and the justice department have sidestepped this stipulation with the use of plea bargaining and state limitation of habeas corpus. Since the Furman precedence nineteen states have made statutory revisions on the death penalty. This amounts to twenty-six changes involving additional aggravating circumstances, procedural amendments addressing the rights of victims and their families, and changes in methods of execution. According to the US Department of Justice, New York state,

"Enacted a law creating the crime of capital murder and providing for a sentence of death for persons over the age 18 if any of 10 aggravating circumstances exist. The new law prohibits sentencing mentally retarded persons to death (Ch. 1, 1995 session)."

Whereas in Texas, there is no law that prohibits the executions of the young, mentally retarded and mentally ill.

The first major test to the constitutionality of the death sentence and the exercise of inmate's right to appeal occurred in the case Gregg v. Georgia. By a ruling of seven votes to two, the statute stipulates that,

"in trials for the offences for which the death penalty may be authorized, the determination of guilt or innocence must be decided separately from the sentence; if a defendant is found guilty of capital offence, the trial court must then conduct a separate hearing to determine whether he defendant should be sentenced to death or life imprisonment."

The ruling of this case was applied to Texas, Florida and Georgia. Most importantly, the Supreme Court statute in Gregg v. Georgia, and the two companion cases - Profitt v. Florida and Jurek v. Texas - "provided automatic review of death sentences by the highest state court of appeal, to ensure that the death penalty was imposed proportionately to the gravity of the offence," justly under the state law.

In another landmark decision in 1987, McCleskey v. Kemp, the Court rejected a comprehensive statistical study pointing to racial discrimination in the application of the death penalty in Georgia by votes five to four. This was the first case in which the issue of race discrimination was linked to the constitutionality of the death sentence. Most of the findings by the study was accepted by the Supreme Court but on the grounds that,

"the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system."

However, Warren McCleskey's appeal was denied because the appeal failed to show burden of proof. The most important result of this case occurred in the 1995 when the Supreme Court attempted to rule that,

"there was a prima facie (A legal term meaning at first sight) case that gross racial disparities existed in sentencing for some drug offences...that a case of racial discrimination was established by evidence that 98.4% of those serving life sentences for certain drug offences were black."

However, through a filed petition for a re-hearing with the Court arguing that a prima facie was a step to invalidate the state of Georgia's penalty law and would paralyze the criminal justice system, the Court rejected the prima facie ruling and adopted the position of the McCleskey v. Kemp statute. This has further raised the issue of whether the United States is violating the United Nations Human Rights Covenant by perpetuating the death sentence, in the denial of due process and arbitraty selections of criminals.

Recently, doubts have been raised in the American public's mind of the constitutionality of the death sentence. There are many who still believe that this sentence is inhumane and unconstitutional. And we have seen the great disparity across the United States, in states that do institutionized it and those who did not. Needless to say, there are states and nations that strongly believe that the death penalty is in violation and contradictions of the United Nations Human Rights Covenant. Amnesty International has raised arguments such that the death sentence is discriminatory, irreversible and arbitrary. Moveover, in most cases the crime does not befit the punishment and death sentence is the ultimate denial of human rights.

Remarkably, since the 1976 statute, the death penalty has been on a steady rise in the United States. Since April 1996, there has been approximately 328 prisoners executed and over 3,000 death row inmates throughout the nation with twenty six states carrying out executions. Out of the fifty-three jurisdictions in United States, there are only thirteen jurisdictions that have not institutionalized the death penalty since 1976. As noted in chapter 1, the death penalty differs from state to state, with most states favoring lethal injection as the manner of execution. The death penalty can be imposed from cases of purposeful or knowing murder to first degree murder. In the states of Georgia and Texas, the jury is allowed to have the final say in determining the death sentence while in Florida, the final decision rest with the judge. There are at least thirteen states since 1995 that allow victims' immediate family members to watch the execution of the killers of their relatives. Significantly, as explored in chapter 2 of this research paper, the United States with the death penalty do not have significantly lower crime rates, in fact in some states, the rates are higher. According to the Center for Juvenile and Criminal Justice, the State of California which carried out execution in every other month since 1952 to 1967, the murder rates increase on average of 10% annually. Also between 1967 and 1991, when there were no executions in the state, the murder rate increased 4.8% annually.

In late July of 1996, the Connecticut Supreme Court reaffirmed the constitutionality of the death penalty in State v. Webb, for state inmate. There are six men currently facing the possibility of the death sentence in Connecticut, although there has not been an execution since 1960. Not surprisingly is that the state of Georgia has the highest execution rate in the US making it the noted for his discriminatory arbitration of the death sentence. According to Amnesty International Report,

"Research has shown that in many cases the ethnic origin of the victim or defendant was a key factor in the prosecutors decision to seek the death penalty," despite the "..Supreme Court ruling in Furman v. Georgia that the arbitrary and capricious use of the death penalty was unconstitutional under the Eighth and Fourteenth Amendments."

In response to a letter written by Amnesty International (AI) to President Clinton, outlining the ineffectiveness of the procedural safeguards to prevent racism and unfair treatment statewide, the US Attorney General stated,

"The Administration and this Department support the death penalty in appropriate cases. By the same token, we are unalterably opposed to its application in an unfair manner, particularly if that unfairness is grounded in racial or other discrimination."

According to the General Accounting Office (an independent agency of the federal government) reported in February 1990 on Pattern of Racial Disparities that,

" ...in 82% of the [28] studies, race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced death than those who murdered blacks."

In contrast, the US Department of Justice and Bureau of Justice Statistics on Capital Punishment in 1995 reported that there was 57 % white inmates to a 42 % black inmates including other races of 1.6 % (comprised of 22 Native Americans, 19 Asians, 8 persons of unknown race and 8 % of known ethnicity were Hispanic). Although in the following year in California the statistics show significant difference.

Amnesty International have cited three major sources of racism in the use of the death penalty. These are, the removal of potential black jurors during the jury selection; the greater potential of the death sentence for homicide if the case involved a white victim; and capriciousness of seeking the death sentence against black defendants. Mumia Abu-Jamal was sentenced the death penalty for killing Officer Gary Wakshul in Philadelphia, and is now awaiting a decision for an appeal based on racial discrimination and on the police violation of the Miranda law in forcing a plea bargain from Jamal in his 1982 trial. Despite the 1986 case, Batson v. Kentucky, which ruled that prosecutors were not permitted to exercise peremptory challenges to remove potential jurors from the jury on the grounds of race, the race discrimination persists to occur in many states, especially in Georgia.

As a safe guard against the corruption of voir dire, jury selection process, and racial bias that lead to inadequate legal representation for those facing the death penalty, habeas corpus offers inmates the option of relief from the sentence of death through clemency and a chance at a fair trial with proper representation by defense lawyers knowledgeable in capital law. Ironically, attempted have been made by the US Congress and states to mitigate this process. In 1993, the US Congress introduced, The Habeas Corpus Reform Act, which contained a statute of limitation and other restrictions on the use of habeas corpus. Again in April 1995, the state of Georgia signed into law Georgia's Death Penalty Habeas Corpus Reform Act of 1995, in order to speed up the appeal process for the death row inmates by setting the time limits for filing and processing of appeal at two years.

President Clinton signed into law on 24 April, the Anti-Terrorism and Effective Death Penalty Act of 1996. This legislation limits recourse to the remedy of habeas corpus in federal and national courts and impose new standards, fixed time limits and rigid restrictions on appeals. The bill gives the federal courts the power to overturn state court judgement in three instances, when the court's decision is, "contrary to clearly established" federal law as determined by the Supreme Court; if it involves an "unreasonable application" of clearly established law or if the state court's factual determination is "unreasonable." There has been already four Supreme Court justices who voted against the speed-up review of death row appeals - from an average of eight years to two years and making the habeas corpus petitions in capital cases within six months. They argued that this new timetable is "both unnecessary and profoundly unwise."

Despite the arguments in favor of the death penalty and the attempts by governments and states to preserve the sentence, there is a growing support movement worldwide to eliminate it. Many agree with AI that the federal government should, "retain the responsibility to ensure that all laws within its territorial jurisdiction conform to minimum international standards set out in international instruments.." Since 1996, there are fifty-six countries and territories that have abolished the death penalty for all crimes, fifteen countries have abolished it for all but wartime crimes, twenty-eight countries are abolitionist de facto (i.e. retain in law but has carried out execution for atleast ten years) and one hundred countries that have abolished the sentence in law or practice. Although there are ninety-four countries that has retained and used the death penalty, the United States has remained one of the five countries who actually execute juvenile prisoners yearly. According to a 1987 study, the United States executed 23 innocent prisoners and having 350 capital crime convictions.

Amnesty International and abolitionist advocates argue that, besides the fact the death penalty is an ultimate denial of human rights, it does not deter crime more effectively than other punishments. Also the manner of which the sentence is arbitrated is discriminatory, especially in former slave-holding states that use the sentence to discriminate against the poor, minorities and members of racial, ethnic and religious communities. There are instances when the death penalty is used as an instrument of political repression (i.e., used by those in power to eliminate their political opponent.) AI cites an instance when the father of a murder victim contributed a large sum toward the election compaign of District Attorney to guarantee the sentence of the murderer. The death penalty is not much different from torture because it is usually not hidden or denied from public display but it part of the law of the land. According to the state laws of Oklahoma and Washington in the United States victims families are guaranteed the right to watch the execution of the families' assailant. Ultimately, the methods of execution is manifestation of cruelity and is no way in accordance to human rights standards - across the United States, execution ranges from handing, shooting, electrocution, lethal injection and gas chamber. In the few cases reported inmates suffered prolonged torture during the execution process (prolonged stay and execution). In Missouri, Emmitt Foster was subjected to prolonged execution, in which he was heard gasping and had abdominal convulsing by witnesses for approximately half an hour before the poison from the lethal injection finally killed him. In another incident, the James Ingram suffered the strain of last-minute stays of his execution. Ingram had to wait sixty-five minutes stay with an additional thirty minutes

According to Amnesty International the death penalty is incompatible with the established international humanitarian standards that prohibit all forms of "cruel, inhuman or degrading treatment or punishment," under the UN Charter; and is against the goals of the UN General Assembly. Moveover the United States have avoided to agree to recent international covenants such as the United Nations Economic and Social Council (ECOSOC) on "Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty" in 1984 and in 1989 the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty.

It is obvious that the United States is totally unable to achieve uniformity across the nation on the issue of the death sentence. Perhaps, the US should seriously consider amending the Constitution to universalize its stand on capital punishment by the total elimination of the sentence. The US have pledged in international agreements to eliminate the use of the death sentence, especially instants that involved the execution of the young, the innocent, the mentally ill and victims of racial prejudice and corruption. The United States has repeatly failed to adhere to its international covenants or enforce its power within its juristriction. Is this an indication that our justice system fail construe the notion of democracy? I think it is highly hypocritical for the United States to criticize China, Iraq and Iran for their human rights violations, when the US is committing similar crimes of persecution and denial of rights in Georgia, Texas and California each year. Furthermore, the Congress of United States is empowered with the right to pass laws that often limit the number of federal appeals allowed by death row inmates. More than often, politician use the death penalty to win seats in Congress. Surely these injustices are grave violations of the United States Constitution, and is by world standard a violation of human rights. What will it take before the government realize that the death penalty is inhumane, unjust and unprofitable?

Table 3a

The Executions since 1976 reinstitution of capital punishment, by year (through the end of 1995) in the United States

Year Amount Year Amount Year Amount Year Amount

1976	0	1981	1	1986	18	1991	14
1977	1	1982	2	1987	25	1992	31
1978	1	1983	5	1988	11	1993	38
1979	2	1984	21	1989	16	1994	31
1980	0	1985	18	1990	23	1995	56
						Total	314

Source for Statistics: Death Penalty Information Center.

Http://www.courttv.com/library/capital/stats.html

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