Amicus Curiae Brief — Hill v. McDonough

;

(o) FILED

No. 05-8794 MAR 3- 2006

OFFICE OF THE CLERK

In The SUPREME COURT, U.S.

Supreme Court of the Anited States

e

CLARENCE E. HILL,

V.

Petitioner,

JAMES R. MCDONOUGH, Interim Secretary,

Florida Department of Corrections, et al.,

Respondents.

¢

On Writ Of Certiorari To The ©

United States Court Of Appeals

For The Eleventh Circuit

e

Ay

BRIEF AMICI CURIAE OF HUMAN RIGHTS

ADVOCATES, HUMAN RIGHTS WATCH, AND

MINNESOTA ADVOCATES FOR HUMAN RIGHTS

IN SUPPORT OF PETITIONER

¢

CONSTANCE DE LA VEGA

Professor of Law

Counsel of Record

UNIVERSITY OF SAN FRANCISCO,

FRANK C. NEWMAN INTERNATIONAL

HUMAN RIGHTS LAW CLINIC

2130 Fulton Street

San Francisco, CA 94117

415-422-2296

DaviD WEISSBRODT

Regents Professor & Fredrickson

& Byron Professor of Law

UNIVERSITY OF MINNESOTA

229-19th Avenue So.

Minneapolis, MN 55455

612-625-5027

ee

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

Ee AEE EP IOIIIEIE sintscininscnssncssdeicensciantiscncwomndbaotnes 1

INTEREST OF AMICT CURITAE...00.0.......ccccceccceceseeeseees 1

PRUETT GEEF WOUE Bi iccctrivesestinercrsnesdianescessavenseetas sie 3

IEE crtideccitiaictplimciparbiccetienninsinninineminmnin 6

UNITED STATES TREATY OBLIGATIONS SUP-

PORT PETITIONER’S CONTENTION THAT THE

CURRENT PROTOCOL FOR LETHAL INJEC-

TION VIOLATES THE EIGHTH AMENDMENT ...

OID scbeeeiansiticintniienndetcinntietsiarenidiineivintnitinniianion

il

TABLE OF AUTHORITIES

Page

CASES

Beardslee v. Woodford, 395 F.3d 1064 (9th Cir.

STITT snsnssiatininiscip ibimacieseabhclensdpisidtchaatelelepaipinieimnleaniniaenideiaaiivatninived 4

Butt v. State, 842 P.2d 1240, 4 Cal. 4th 668 (1992) ............ 1

Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272

CD cates aba vias caiecnssia van cchnstedoiadiameomuniewiabccmsmibicanieaarmiacenoes 1

Coalition for Econ. Equity v. Wilson, 110 F.3d 1431

(9th Cir. 1997), cert. denied, 522 U.S. 963 (1997)........... 1

Fierro v. Gomez, 865 F. Supp. 1387 (N.D. Cal. 1994) ....... 11

Hilao v. Estate of Marcos, 103 F.3d 789 (9th Cir.

TI cchsducct-cxsucicenhepesiabitiasdagsspiinnapadbiaieuatiiniuniineiiniainniepnbinesisiinatia 1

LaGrand v. Stewart, 173 F.3d 1144 (9th Cir. 1999).......... 11

Morales v. Hickman, __ F. Supp.2d __, 2006 WL

335427 (N.D. Cal. Feb. 14, 2006) .......0..... eee 4,10

Roper v. Simmons, 543 U.S. 551 (2005)....... ccc eeseeeeeeeeeeees 1

Sims v. State, 754 So. 2d 657 (2000) ............ cece eee eee eee 3

CONSTITUTIONAL PROVISIONS

i I OI Wi iisccccceciinieco cash cnsindntadsinninisivcenmpsieucnniaeemmivia 6

CT: GOI, CINE, Fy esctercesecnescnstrsctinincctectscnnevicncntoroninscscost 8

U.S. ConsT. amend. VITI................c:ceeeeeeeeeeseees 6, 8, 9, 10, 11

CEE, CIE, GNI, TEE ccccccccevcccesencynctocninieiscssssnassessentonsests 8

STATUTES

Ie II an sinchliccincenticsieicahistidaitiadiapeiieaiacinptodainiaiiiiooe 3,5

ili

TABLE OF AUTHORITIES — Continued

Page

OTHER AUT'iORITIES

Case of Charles Chitat Ng, U.N. Hum. Rts. Com-

mittee, 49th Sess., U.N. Doc. CCPR/C/49/D/469

COU Aainls Licsabhidcsiplbiideiss nibilacaktiecselibactbeisadeksaibsadlidins siptaiindeisevkacs 9

Anne Bayefsky & Joan Fitzpatrick, /nternational

Human Rights Law in United States Courts: A

Comparative Perspective, 14 MicH. J. INT'L L. 1

adalah kaha atehadicictiie aiadltas dead elds dithedindibenstecwdaabeben 8

Gordon A. Christenson, Using Human Rights Law

to Inform Due Process and Equal Protection

Analyses, 52 U. CIN. L. REV. 3 (1993)... eeeeeeeeee 8

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punish-

ment, G.A. Res. 39/46, annex, U.N. GAOR, 39th

Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51

6 EER AC ete tern SPC ane D PEE TER aa Ae Ee 6, 7, 11

Connie de la Vega, Protecting Economic, Social and

Cultural Rights, 15 WHITTIER L.REv. 471, 476-77

CUNT sicsssichsieteteatleierantalt uate daladide th anndotaae balncatccipncliniarhialdinenies 8

Ruth Bader Ginsburg & Deborah Jones Merritt,

Affirmative Action: An International Human

Rights Dialogue, 1 RUTGERS RACE & L.REv. 193

ESTEE AEE ERNE: BOM AWE TD wD AE TO ET OE NOE 8

International Covenant on Civil and Political

Rights, G.A. Res. 2200A, U.N. GAOR, 21st Sess.,

Supp. No. 16, at 52, U.N. Doc. A/6316 (1966)........ passim

Press Release, Office of the Ohio Public Defender,

QOhio’s Execution Procedure’s Not Fit for a Dog,

http://opd.ohio.gov/press/pr_12_31-03.htm (Dec.

a EEN ceshdieieiadakcahastidiaientisapediiadipdibleapiicihapenisceapinitpalitabendasemicaiseniiandae 5

iv

TABLE OF AUTHORITIES —- Continued

CCPR Gen. Comment 20, U.N. Hum. Rts. Commit-

tee, 44th Sess., at 46, U.N. Doc. CCPR/C/21/

EE, We sta icenisentcnidedeccieboicdsdisliontadieliiaetaliaduiidnit tess

‘S. Res. 4783, 102d Cong., 2d Sess., 138 CoNG. REc.

S4781-84 (1992) (emacted) ...............ccccceeeeeeceeeeeeeeees

S. Res. 17491-2, 101st Cong., 2d Sess., 136 CONG.

Rec. S 17486-01 (1990) (enacted)...................... cee

Statement of Conrad Harper, Legal Advisor, United

States Department of State, to the United Na-

tions Human Rights Committee, U.N. GAOR

Hum. Rts. Comm., 53d Sess., 1405th mtg., U.N.

BOD, Te re Ci ectnssevivtntntcsntncnsedunecteantecansis

David P. Stewart, United States Ratification of the

Covenant on Civil and Political Rights: the Sig-

nificance of the Reservations, Understandings,

and Declarations, 42 DEPAUL L. REV. 1183 (1993)

United Nations Treaty Collection, Multilateral Treaties

Deposited with the Secretary-General, http://untreaty.

un.org/ENGLISH/bible/englishinternetbible/partI/

chapterIV/treaty6.asp (last visited February 27,

RIIID ssckntéipsiinnetesesasiicnaipemmphicilaidaiandaiianidasasbasmsdihéiel

United Nations Treaty Collection, Multilateral Treaties

Deposited with the Secretary-General, http://untreaty.

un.org/ENGLISH/bible/englishinternetbible/partl/

chapterIV/treaty14 asp (last visited February 27,

OE sccossssciesiubensebatinincidatienipinaiclagesmsiupbaninapianiieeiia

Page

BRIEF AMICI CURIAE

INTEREST OF AMICI CURIAE

Human Rights Advocates, Human Rights Watch, and

Minnesota Advocates for Human Rights hereby request

that the Court consider this brief pursuant to Rule 37.2‘a)

in support of Petitioner Hill. Consent of Petitioner's

Counsel of Record and the State District Attorney’s Office

has been obtained.’

Human Rights Advocates, a California non-profit

corporation, founded in 1978, with national and interna-

tional membership, endeavors to advance the cause of

human rights to ensure that the most basic protections are

afforded to everyone. Human Rights Advocates has a

Special Consultative Status at the United Nations. Hu-

man Rights Advocates has submitted briefs as amicus

curiae in cases involving individual and group rights

where international standards offer assistance in inter-

preting both state and federal statutes at issue.’

Human Rights Watch is a non-governmental organi-

zation established in 1978 to monitor and promote obser-

vance of inter iationally recognized human rights. It also

' Letters from both counsel consenting to the filing of this brief are

being sent with this brief to the Clerk of this Court. Counsel for a party

did not author this brief in whole or in part. No person or entity, other

than the Amicus Curiae, their members or their counsel made a

monetary contribution to the preparation and submission of the brief.

* Examples of amicus briefs filed by Human Rights Advocates

include those in the following cases: Roper v. Simmons, 543 U.S. 551

(2005); Coalition for Econ. Equity v. Wilson, 110 F.3d 1431 (9th Cir.

1997), cert. denied, 522 U.S. 963 (1997); Cal. Fed. Sav. & Loan Ass'n v.

Guerra, 479 U.S. 272 (1987); Hilao v. Estate of Marcos, 103 F.3d 789

(9th Cir. 1996); Butt v. State, 842 P.2d 1240, 4 Cal. 4th 668 (1992).

has Special Consultative Status at the United Nations. It

regularly reports on human rights conditions in more than

seventy countries around the world, and it actively pro-

motes legislation and policies worldwide that advence

protections in the area of domestic and international

human rights and humanitarian law.

Minnesota Advocates for Human Rights (“Minnesota

Advocates”), founded in 1983, is a volunteer-based non-

profit organization committed to the impartial promotion

and protection of international human rights standards

and the rule of law. Minnesota Advocates conducts a broad

range of innovative programs to promote human rights in

the United States and around the world, including human

rights monitoring and fact finding, direct legal representa-

tion, education and training, and publications. Minnesota

Advocates has produced more than fifty reports document-

ing human rights practices in more than twenty-five

countries; educated more than 10,000 students and com-

munity members on human rights issues; and provided

legal representation to thousands of low-income individu-

als. Minnesota Advocates’ Death Penalty Project was

organized in 1991 to recruit Minnesota attorneys to assist

death row inmates with their post-conviction appeals.

Minnesota Advocates previously has submitted amicus

curiae briefs in numerous cases, including to the Inter-

American Court of Human Rights.

Amici would like to take the opportunity to advise this

Court of the pertinent international standards that may

provide assistance in interpreting the United States

constitutional provisions involved in this case. Specifically,

amici would like to address issues raised by Petitioner

regarding the use of the use of the lethal injection protocol

currently employed by Florida Department of Corrections.

3

The applicable international standards include: 1) two

international treaties ratified by the United States, and 2)

the interpretation of relevant clauses of one of the treaties

by the body specifically charged with enforcing the treaty.

While international law does not prohibit the death

penalty, it does limit methods that may be used. The

treaty law in this area requires that the death penalty be

applied in such a manner as to cause the least possible

physical and mental suffering. The parties have failed to

address that requirement. Because the Court may find

this new information helpful, amici request that the Court

consider it.

¢

STATEMENT OF FACTS

In a complaint brought under 42 U.S.C. § 1983 and

filed in the United States District Court for the Northern

District of Florida, petitioner Clarence Hill alleged that

the defendants, acting under color of state law, are using a

protocol for carrying out executions by lethal injection that

creates a foreseeable and unnecessary risk of inflicting

pain. This Court granted certiorari in order to determine

whether such a claim is properly brought under 42 U.S.C.

§ 1983, or in a petition for writ of habeas corpus. Amici

urge the Court to consider the international treaty obliga-

tions in determining the appropriateness of raising this

claim under Section 1983.

Florida’s procedures for lethal injection are not pre-

scribed by statute but are left to the discretion of the

Department of Corrections. At the present time, they

appear to be the same as when they were described in

Sims v. State, 754 So. 2d 657, 665 n.17 (2000):

4

In all, a total of eight syringes will be used, each

of which will be injected in a consecutive order

into the IV tube attached to the inmate. The first

two syringes will contain “no less than” two

grams of sodium pentothal, an ultra-short-acting

barbiturate which renders the inmate uncon-

scious. The third syringe will contain a saline so-

lution to act as a flushing agent. The fourth and

fifth syringes will contain no less than fifty milli-

grams of pancuronium bromide, which paralyzes

the muscles. The sixth syringe will contain sa-

line, again as a flushing agent. Finally, the sev-

enth and eighth syringes will contain no less

than one-hundred-fifty milliequivalents of potas-

sium chloride, which stops the heart from beat-

ing.

Virtually all U.S. jurisdictions that perform executions

by lethal injection appear to use a similar three-chemical

protocol. Recently, problems with California’s cognate

protocol were found in Morales v. Hickman, __ F. Supp.2d

__, 2006 WL 335427 (N.D. Cal. Feb. 14, 2006), where the

district court noted than in six out of thirteen California

executions by lethal injection, the State’s own execution

logs “raise|d] at least some doubt as to whether the proto-

col actually is functioning as intended,” id. at *6, and

particularly observed that four of the logs “contain indica-

tions that there may have been problems associated with

the administration of the chemicals that may have re-

sulted in the prisoners being conscious during portions of

the executions,” id. at 4 (quoting Beardslee v. Woodford,

395 F.3d 1064, 1075 (9th Cir. 2005)).

The trauma experienced by © person who regains or

retains consciousness, who cannot communicate that fact

because he has received a paralytic agent, and who is then

5

subjected to a painful procedure is almost unimaginable,

as shown by the experience of Carol Weihrer:

According to Weihrer’s affidavit, she underwent

eye surgery. The sedative she received was inef-

fectual and left her conscious during the entire

surgery. Because of the administration of a neu-

romuscular blocking agent like pancuronium

bromide, however, she was unable to indicate her

consciousness and horrific pain to the doctor re-

moving her eyeball for surgical repair: “I there-

fore experienced what has come to be known as

Anesthesia Awareness, in which I was able to

think lucidly, hear, perceive, and feel everything

that was going on during the surgery, but I was

unable to move. It burnt like the fires of hell. It

was the most terrifying, torturous experience you

can imagine. The experience was worse than

death.”

Press Release, Office of the Ohio Public Defender, Ohio’s

Execution Procedure’s Not Fit for a Dog, http://opd.ohio.

gov/press/pr_12_31-03.htm (Dec. 31, 2003) (quoting Affida-

vit of Carol Weihrer and describing Section 1983 com-

plaint and attachments filed that day by condemned

inmates Lewis Williams Jr. and John Glenn Roe).

In the instant case, the district court did not address

the substance of Clarence Hill’s Section 1983 complaint,

and instead dismissed the action on jurisdictional grounds.

The Eleventh Circuit affirmed that decision.

e

6

ARGUMENT

UNITED STATES TREATY OBLIGATIONS SUP-

PORT PETITIONER’S CONTENTION THAT THE

CURRENT PROTOCOL FOR LETHAL INJECTION

VIOLATES THE EIGHTH AMENDMENT

The International Covenant on Civil and Political

Rights, G.A. Res. 2200A, U.N. GAOR, 21st Sess., Supp.

No. 16, at 52, U.N. Doc. A/6316 (1966) [hereinafter Cove-

nant], is a United Nations treaty ratified by the United

States in 1992. S. Res. 4783, 102d Cong., 2d Sess., 138

ConG. REC. S4781-84 (1992) (enacted). As of February 27,

2006, there were 155 parties to the Covenant. United

Nations Treaty Collection, Multilateral Treaties Deposited

with the Secretary-General, http://untreaty.un.org/ENGLISH/

bible/englishinternetbible/partI/chapterIV/treaty6.asp (last

visited February 27, 2006). The Convention Against

Torture and Other Cruel, Inhuman or Degrading Treat-

ment or Punishment, G.A. Res. 39/46, annex, U.N. GAOR,

39th Sess., Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984)

{hereinafter Convention Against Torture], is also a treaty

ratified by the United States in 1994. S. Res. 17491-2,

101st Cong., 2d Sess., 136 CoNnG. Rec. S. 17486-01 (1990)

(enacted). As of February 27, 2006, there were 141 parties

to the Convention. United Nations Treaty Collection,

Multilateral Treaties Deposited with the Secretary-General,

http://untreaty.un.org/ENGLISH/bible/englishinternetbible/

partl/chapterIV/treaty14.asp (last visited February 27,

2006).

Under Article VI of the United States Constitution, a

ratified treaty is part of the supreme law of the land.

Ratification is not to be treated lightly, and such action by

the President and the Senate evidences the acceptance of

the language of the Covenant, except to the extent that

7

reservations are specified. The document should, there-

fore, provide meaningful guidance to the Court.°

Article 7 of the Covenant provides: “No one shall be

subjected to torture or to cruel, inhuman or degrading

treatment or punishment.” Covenant, supra, at art. 7.

Article 4(2) of the Covenant indicates that Article 7 is at

no times derogable. Jd. at art. 4(2). In addition to the

prohibition against torture, the Convention Against

Torture, supra, in Article 16, § 1 provides:

Each State Party shall undertake to prevent in

any territory under its jurisdiction other acts of

cruel, inhuman or degrading treatment or pun-

ishment which do not amount to torture as de-

fined in article 1, when such acts are committed

by or at the instigation of or with the consent or

acquiescence of a public official or other person

acting in an official capacity.

The Human Rights Committee is the body which

officially monitors compliance with the Covenant. In its

* The Senate consent to the Cuvenant was accompanied by a

declaration “that the provisions of Articles 1 through 27 are not self-

executing.” S. Res. 4783, 102d Cong., 2d Sess. (1992). The legislative

history shows that those words were intended to prohibit only a private

and independent cause of action. The declaration does not preclude

courts from using the treaty as a guide in elucidating constitutional

guarantees. The United States government’s position is that “courts

could refer to the Covenant and take guidance from it.” Statement of

Conrad Harper, Legal Advisor, United States Department of State, to

the United Nations Human Rights Committee, U.N. GAOR Hum. Rts.

Comm., 53d Sess., 1405th mtg., U.N. Doc. HR/CT/404 (1995). Further,

the declaration does not affect the obligations of the United States

under the Covenant. See, David P. Stewart, United States Ratification

of the Covenant on Civil and Political Rights: the Significance of the

Reservations, Understandings, and Declarations, 42 DEPAUL L. REV.

1183 (1993).

8

comments concerning Article 7 the Committee stated that

“when the death) penalty is applied by a State party for the

most serious crimes, ... it must be carried out in such a

way as to cause the least possible physical and mental

suffering.” CCPR Gen. Comment 20, U.N. Hum. Rts.

Committee, 44th Sess., at J 6, U.N. Doc. CCPR/C/21/Add.

3 (1992). The Eighth Amendment to the United States

Constitution prohibits “cruel and unusual punishments.”

U.S. CONST. amend. VIII. Because the United States now

has ratified the Covenant, the development of Article 7

should help courts construe the scope of the Eighth

Amendment’s final clause. The Covenant has become a

part of United States law and thus surely is relevant to

the meaning of the Eighth Amendment.‘

The allegations in this case indicate that carrying out

an execution using the current protocol for lethal injection

does violate Article 7, as plainly written and officially

construed. The use of this protocol does not reliably “cause

the least possible physical and mental suffering.”

* International human rights standards have often been useful

tools for interpreting United States laws. See generally, Connie de la

Vega, Protecting Economic, Social and Cultural Rights, 15 WHITTIER

L.REV. 471, 476-77 (1994); Gordon A. Christenson, Using Human Rights

Law to Inform Due Process and Equal Protection Analyses, 52 U. CIN. L.

REV. 3 (1993). See also, Ruth Bader Ginsburg & Deborah Jones Merritt,

Affirmative Action: An International Human Rights Dialogue, 1

RUTGERS Race & L.REV. 193 (1999); Anne Bayefsky & Joan Fitzpatrick,

International Human Rights Law in United States Courts: A Compara-

tive Perspective, 14 MICH. J. INT'L L. 1 (1993).

* The United States reservation to the Covenant that cruel,

inhuman, or degrading treatment or punishment means the crue] and

unusual punishment prohibited by the Fifth, Eighth and/or Fourteenth

Amendments, S. Res. 4783, 102d Cong., 2d Sess. (1992), by no means

precludes Article 7’s application to this case. Article 7 is not inconsistent

with the Eighth Amendr.ent regarding the facts of this case. The

(Continued on following page)

9

The Human Rights Committee was given the oppor-

tunity to again construe Article 7 in the case of Charles

Chitat Ng. U.N. Hum. Rts. Committee, 49th Sess., U.N.

Doc. CCPR/C/49/D/469 (1991). After fleeing to Canada, Ng

was returned to the United States under the extradition

treaty between the two nations. He submitted to the

Human Rights Committee a communication claiming that

the extradition to California exposed him to probable

execution by gas asphyxiation which violated his rights

under the Covenant. Under the extradition treaty, Canada

could have sought assurance that he would not be pun-

ished with death, but did not.

The Human Rights Committee concluded that Canada

violated Article 7 when it refused to seek such assurance

since it could reasonably have foreseen that Ng, if sen-

tenced to death, would be executed by means of lethal gas.

The Committee specifically held that “execution by gas

asphyxiation, should the death penalty be imposed on

[Ng], would not meet the test of ‘least possible physical

and mental suffering,’ and constitutes cruel and inhuman

treatment ...” and Canada thus violated Article 7 of the

Covenant. Id. at 21. The Committee based its findings on

evidence submitted by Ng regarding the length of con-

sciousness after asphyxiation begins. Ng also referenced

the execution record of Robert Harris, noting that death by

asphyxiation can take up to twelve minutes, during which

time “condemned persons remain conscious, experience

language of the Eighth Amendment is broad enough to forbid the use of

this particular protocol for lethal injection as a means of execution, and

United States courts should not ignore international pronouncements

on treaties to which it is party.

10

obvious pain and agony, drool and convulse and often soil

themselves.” Jd. at 14.

There is evidence that protocols similar to that used in

Florida have resulted in unnecessary suffering and poten-

tially excruciating pain and thus in executions that violate

the prohibitions of Article 7 and of the Cruel and Unusual

Punishments Clause of the Eighth Amendment. As the

District Court in Morales found, the evidence of its use in

California raises “at least some doubt as to whether [it]

actually is functioning as intended.” Morales, 2006 WL

335427, at *6. Petitioner should not be subjected to death

by use of that protocol until there is a judicial assessment

of the potential for extreme pain that has been involved in

its past use and a determination of whether it will be

“carried it out in such a wey as to cause the least possible

and physical and mental suffering.” CCPR Gen. Comment

20, supra.

Other courts have examined particular methods of

execution and found them constitutionally wanting. A

court in California made the following factual findings

with respect to death by lethal gas:

(I]Inmates who are put to death in the gas cham-

ber at San Quentin do not become immediately

unconscious upon the first breath of lethal

gas.... [AJn inmate probably remains conscious

anywhere from 15 seconds to one minute, and...

there is a substantial likelihood that conscious-

ness, or a waxing and waning of consciousness, -

persists for several additional minutes. During

this time ... inmates suffer intense, visceral

pain, primarily as a result of lack of oxygen to

the cells. The experience of “air hunger” is akin

to the experience of a major heart attack, or to

being held under water. Other possible effects to

11

the cyanide gas include tetany, an exquisitely

painful concentration of the muscles, and painful

build-up of lactic acid and adrenaline. Cyanide-

induced cellular suffocation causes anxiety, panic,

terror, and pain.

Fierro v. Gomez, 865 F. Supp. 1387, 1404 (N.D. Cal. 1994)

(citations omitted). Even though the district court’s deci-

sion in Fierro has been vacated, the Ninth Circuit has

upheld the findings of extreme pain and has concluded

that the use of execution by lethal gas is unconstitution-

ally cruel and unusual and violates the Eighth and Four-

teenth Amendments. See, LaGrand v. Stewart, 173 F.3d

1144, 1149 (9th Cir. 1999). That decision is in conformity

with the Human Rights Committee decision in the Ng

case.

At this point in Florida, persons on death row not only

face the possibility of being subjected to extreme pain, but

in addition must suffer the anxiety that they may. Amici

ask the Court to consider the significant parallel between

the cases and the treaty standards that apply when

reviewing this case.

¢

CONCLUSION

The imposition of the death penalty using the current

protocol for lethal injection potentially violates the Inter-

national Covenant on Civil and Political Rights and the

Convention Against Torture. Because the United States is

a party to both treaties, the Eighth Amendment should be

construed so as not to conflict with it. Hence, the case

should be remanded to the lower courts so that there can

12

be a proper trial on the protocol for lethal injection and a

determination can be made on the merits on whether it

does cause the least amount of suffering.

Date: March 3, 2006

Respectfully submitted,

CONSTANCE DE LA VEGA

Counsel of Record

DAVID WEISSBRODT

Counsel for Amicus Curiae

Human Rights Advocates

Human Rights Watch

Minnesota Advocates for

Human Rights