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U.N. Convention Against Torture

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The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention) was adopted by the General Assembly of the United Nations on December 10, 1984 and ratified by the United States ten years later. In all, 176 countries have either ratified or signed the torture convention.

The thrust of this treaty is to forbid physical and psychological abuse of people in detention around the world. Whether the death penalty is implicated in this treaty depends on the definition of torture. Clearly, the U.S. was not about to sign a treaty which, on its face, outlawed capital punishment as a form of torture. But the application of the death penalty in the U.S. in specific instances may well be in violation of this convention.

Article 1 of the Torture Convention defines torture, in part, as:

any act by which severe pain or suffering . . . is intentionally inflicted on a person . . . by . . . a public official....

The definition warns of some of the impermissible reasons for which torture is frequently inflicted, including coercing a confession, punishment, or for "discrimination of any kind." The definition of torture "does not include pain or suffering arising only from . . . lawful sanctions."
There are three parts of this definition that deserve special note: First, there is an exemption for pain or suffering associated with lawful punishments. Thus, imprisonment may produce much pain and suffering like separation from loved ones, deprivation of freedom, etc. However, in so far as imprisonment is lawful, the normal suffering that results is not banned by the Torture Convention. Similarly, since the death penalty may still be considered a "lawful sanction," the considerable pain and suffering which inevitably accompany an execution are not torture under this definition. But, the exempted sanctions have to be lawful in the first place.

Secondly, pain or suffering associated with a lawful punishment can be torture if it is not closely connected with that punishment. It must arise from, or be inherent in, or incidental to a lawful sanction. If certain forms of pain and suffering can easily be avoided without eliminating the basic punishment, then it is fair to ask whether that suffering is inextricably entwined with the punishment.

Finally, the definition of torture forbids the infliction of pain and suffering based on discrimination of any kind. There is considerable historical and statistical evidence that the death penalty in the United States has been applied in a racially discriminatory way. If that is true, then Article 2 of the Torture Convention requires States to "take effective legislative, administrative, judicial or other measures to prevent acts of torture . . . ." As I will discuss later, this issue is also addressed in a general way by the International Convention on the Elimination of All Forms of Racial Discrimination (the Race Convention), also ratified by the U.S. in 1994.

I would now like to look into each of these three aspects of the definition of torture to see if the U.S. practice of capital punishment violates the Torture Convention.

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