INTERNATIONAL LAW AND THE MORTAL PRECIPICE: A LEGAL POLICY CRITIQUE OF THE 'DEATH ROW PHENOMENON'ExpressO (2008)
AbstractSince 1989, courts around the world have been presented with claims under a controversial legal theory known as the Death Row Phenomenon. A Phenomenon claim alleges essentially that prolonged detention on death row coupled with the solitary and dehumanizing conditions of confinement and the ever-present specter of death is impermissible under domestic constitutional and/or international human rights law. Court judgments vary widely. That diversity stems in part from the Phenomenon’s lack of an established definition, the range of legal standards and jurisprudential contexts that apply, and the fact that it arises under two distinct scenarios: (i) when a capital offender faces extradition to a retentionist State (where capital punishment remains in effect) (an ex ante perspective), and (ii) based on the actual experience of a death-row inmate (an ex post perspective). The ex ante approach is of particular relevance today in light of certain retentionist States’ aggressive efforts to obtain physical custody via extradition of known or alleged criminals abroad. This article clarifies the nature, scope, and meaning of the Phenomenon; summarizes the relevant case law as well as examines the political reaction it has elicited; critically evaluates the legitimacy of a Phenomenon claim from a legal policy perspective; and prescribes judicial approaches for addressing ex ante and ex post Phenomenon claims (which are rarely distinguished by courts or legal commentators). The article, which implicates international human rights law as well as comparative law, concludes that the Phenomenon should be construed conservatively and recommends, in part, that the analysis in each case be individualized rather than based on arbitrary benchmarks or abstract considerations.
Publication DateJune 3, 2008
Citation InformationDavid A Sadoff. "INTERNATIONAL LAW AND THE MORTAL PRECIPICE: A LEGAL POLICY CRITIQUE OF THE 'DEATH ROW PHENOMENON'" ExpressO (2008)
Available at: http://works.bepress.com/david_sadoff/1/