Court Filing
Electronically Filed
9/5/2024 2:48 PM
Second Judicial District, Latah County Julie Fry, Clerk of the Court
By: Tamzen Reeves, Deputy Clerk Anne Taylor Law, PLLC Anne C. Taylor, Attorney at Law
Bar Number: 5836 PO Box 2347 Coeur d'Alene, Idaho 83816
Phone: (208) 512-9611 iCourt Email: info@annetaylorlaw.com Jay W. Logsdon, Interim Public Defender Kootenai County Public Defender's Office PO Box 9000 Coeur d'Alene, Idaho 83816
Phone: (208)446-1700 Elisa G. Massoth, PLLC Attorney at Law P.O. Box 1003 Payette, Idaho 83661
Phone: (208) 642-3797; Fax: (208)642-3799 Assigned Attorney:
Anne C. Taylor, Public Defender, Bar Number: 5836 Jay W. Logsdon, Chief Deputy Public Defender, Bar Number: 8759 Elisa G. Massoth, Attorney at Law, Bar Number: 5647
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAН
STATE OF IDAHO CASE NUMBER CR29-22-2805
Plaintiff,
MOTION TO STRIKE STATE'S
V. NOTICE OF INTENT TO SEEK DEATH
PENALTY ON GROUNDS OF
BRYAN C. KOHBERGER, INTERNATIONAL LAW AND
MEMORANDUM IN SUPPORT OF
Defendant. MOTION COMES NOW, Bryan C. Kohberger, by and through his attorneys of record, hereby moves this Court to Strike State's Notice Pursuant to Idaho Code § 19-4004A on the grounds that Idaho's death penalty scheme violates its obligations under international treaties.
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Idaho's death penalty procedure violates the provisions of international treaties and the fundamental precepts of international human rights. Because international treaties ratified by the United States are binding on state courts, the imposition of the death penalty is unlawful. U.S.
CONST., Art. VI, cl. 2; see Jack N. Rakove, Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study, 1 PERSP. AM. HIST. 233, 264 (1984); Carlos Manuel Vázquez, Treaty- Based Rights and Remedies of Individuals, 92 COLUM. L. Rev. 1083, 1101-10 (1992); see also Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 HARV. L. REV. 599, 616-19 (2008). Mr. Kohberger also maintains that the failure to comply with international law violates his right to due process under the Fourteenth Amendment to the United States Constitution as well as Article I, Section 13 of the Idaho Constitution.
I. International Treaties On December 10, 1948, the United Nations General Assembly adopted and proclaimed the Universal Declaration of Human Rights. United Nations General Assembly Resolution 217 A (III), 10 December 1948 (See Exhibit A). The United States was among the forty-eight States that voted for the adoption of the Declaration (the vote was 48 in favor, none against and 8 abstentions).
The Declaration is the first of a series of instruments prepared by the United Nations Commission for Human Rights. In 1988 the United States signed the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and ratified it in 1994 (See Exhibit D). In 1977, the United States signed the International Covenant on Economic, Social and Cultural Rights (See Exhibit C) but did not ratify it, and the International Covenant on Civil and Political Rights, which it ratified in 1992. This Court is requested, pursuant to IRE R. 201, to take
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judicial notice of these instruments. A true and correct copy of each of these instruments is attached hereto and incorporated herein by reference.
A. International Covenant on Civil and Political Rights The International Covenant on Civil and Political Rights (“ ICCPR ”) (See Exhibit B) prohibits “ cruel, inhuman or degrading treatment or punishment. ” ICCPR, Art. 7. Article 6, Section 1 of the ICCPR prohibits the arbitrary deprivation of life, providing that “ [e] very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of life. ” Article 6, Section 2 states:
In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.
Finally, Article 10, Section 1, states: “ All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. ” The ICCPR was ratified by the United States in 1992. Under Article 6 of the United States Constitution, “ all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. ” Thus, the ICCPR is the law of the land. See, e.g., Zschernig v. Miller, 389 U.S. 429, 440-41 (1968); Edye v. Robertson, 112 U.S. 580, 598-99 (1884). Consequently, this Court is bound by the ICCPR.
1. Reservations at Ratification However, at ratification, the Senate made a number of reservations. Of importance to this Court, they include:
I. The Senate's advice and consent is subject to the following reservations:
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(2) That the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.
(3) That the United States considers itself bound by Article 7 to the extent that " cruel, inhuman or degrading treatment or punishment " means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth and / or Fourteenth Amendments to the Constitution of the United States.
(4) That because U.S. law generally applies to an offender the penalty in force at the time the offense was committed, the United States does not adhere to the third clause of paragraph 1 of Article 15.
U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992) (available at http://hrlibrary.umn.edu/usdocs/civilres.html) (See Exhibit E). Eleven countries objected to the Senate's declaration that it was not actually adopting Article 6, which permits the death penalty only for the worst crimes and forbids it for children under 18 years of age. Kristina Ash, U.S.
Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence, 3 Northwestern J. Int'l Human Rights 1, p. 6 (2005) (See Exhibit F). Nine countries objected to reservation I (3), which attempts to claim that the United States ' national understanding of cruel and unusual punishment controls, as if an international treaty was merely a readoption of domestic law. Id. at 7.
Plainly, the position the Senate took in contrary to the fundamental nature of multilateral treaties.
Even Justice Antonin Scalia was a proponent of uniform interpretation of multilateral treaty provisions and respecting others ' reasonable interpretations. See Justice Antonin Scalia, Speech to the American Enterprise Institute (Feb. 21, 2006), https://www.tmcnet.com/usubmit/2006/02/22/1397738.htm (" The object of a treaty is to have nations agree on a particular course of action. And if I'm interpreting a provision of the treaty that has already been interpreted by several
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other signatories, I am inclined to follow the interpretation taken by those other signatories so long as it's within the realm of reasonableness where [their interpretations are] within the bounds of the ambiguity contained in the text, I think it's a good practice to look to what other signatories to the treaty have said.
Otherwise, you're going to have a treaty that's interpreted different ways by different countries, and that's certainly not the object of the exercise. ”).
Timothy Lynch, The ICCPR, Non-Self-Execution, and DACA Recipient's Right to Remain in the United States, 34 GEO. IMMIGR. L. J. 323, 344 n. 103 (2020).
Most importantly, this Court must understand that the ICCPR does not permit what the Senate claims to have done. Article 4 only permits derogations during times of national emergency, and expressly states that no party can derogate an essential article even in an emergency- here, the right to life, and the right to be free from torture. Ash, at 7. Thus, even if the Senate's decision to make these reservations was to prevent the international understanding of cruel and unusual punishment from forbidding the death penalty (an odd concern, given that the document expressly permits the death penalty) the Senators had no power to derogate Article 7.
Indeed, the United States Court of Appeals for the Eleventh Circuit has held that when the United States Senate ratified the ICCPR “ the treaty became, coexistent with the United States Constitution and federal statutes, the supreme law of the land ” and must be applied as written. United States v.
Duarte-Acero, 208 F.3d 1282, 1284 (11th Cir. 2000).
In Roper v. Simmons, 543 U.S. 551, 567 (2005), our United States Supreme Court disagreed with the position of the Missouri Attorney General that the reservations the Senate took to killing children showed a national consensus in favor of the practice. The Court went on to cite the treaty as supporting its ultimate decision to find that the Eighth Amendment does not permit the execution of children by our government. Id. at 576. Unfortunately, the argument that the ICCPR ought to be enforced as written and the invalidity of the Senators ' reservations was not argued.
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2. Self-Execution of the ICCPR There is yet another hurdle- in 2008, our Supreme Court decided that the judicial branch plays no part in enforcing treaties unless they are “ self-executing. ” Medellin v. Texas, 552 U.S.
491, 513-14 (2008). And naturally, the Senate claimed an “ understanding ” that Articles 6 and 7 of the ICCPR are not “ self-executing. " There are at least three issues that this Court is therefore required to address. First, is the ICCPR “ self-executing "? Second, if not, what role does it play in our judicial system? Because the answer to the second question obviates the need to answer the first, this Court should start there. According to the Senate's first implementation report to the Human Rights Committee, the U.S. claimed, the fundamental rights and freedoms protected by the Covenant are already guaranteed as a matter of U.S. law, either by virtue of constitutional provisions or enacted statutes, and can be effectively asserted and enforced by individuals in the judicial system on those bases. For this reason, it was not considered necessary to adopt special implementing legislature to give effect to the Covenant's provisions in domestic law.
Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Initial Report of States Parties Due in 1993, Addendum, United States of America, U.N. Doc CCPR / C / 81 / Add.4, Aug. 24, 1994, at 8 (See Exhibit G). See also Core Document forming Part of the Reports of States Parties, United States of America, U.N. DOC. HRI / CORE / 1 / Add.49 (1994), at | 141 (“ [T] he basic rights and fundamental freedoms guaranteed by the [ICCPR] (other than those the United States took a reservation) have long been protected as a matter for federal constitutional and statutory law... ”) (See Exhibit H). Additionally, the United States took the position that courts should look to the covenant in interpreting American law. Human Rights Committee, Comments on the United States of America, 10, issued Apr. 7, 1995, U.N. DOC.
CCPR / C / 79 / Add.50 (1995) at ¶¶ 11 (See Exhibit I).
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As for the Courts, despite the ICCPR's non-self-executability, pursuant to the Charming Betsy canon of interpretation, they are to construe federal law so as to comport with international treaties. “ An act of Congress should be construed in accordance with international law where it is possible to do so without distorting the statute. ” Filartiga v. PenaIrala, 630 F.2d 876, 887 n.20 (2d Cir. 1980) (quoting Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 67 (1804)).
See also RESTATEMENT FOURTH OF FOREIGN RELATIONS LAW, § 309 (1) (“ [Where fairly possible, courts in the United States will construe federal statutes to avoid conflict with a treaty provision. ”). See generally Ralph G Steinhardt, The Role of International Law as a Canon of Domestic Statutory Interpretation, 43 VAND. L. REV. 1103 (1990).
While the Charming Betsy canon has never been used when interpreting the constitution, the statements mentioned above by the United States in terms of its execution of the ICCPR lend themselves to the conclusion that the judiciary should construe the rights of our citizens with the understanding that the protections of the ICCPR set a minimum level. To do otherwise would mean the judiciary was putting our country in breach of a treaty.
That the United States Supreme Court has not considered this should not be surprising. As the Court noted in Medellin:
That this Court has rarely had occasion to find a treaty non-self-executing is not all that surprising. See post, at 1379 (BREYER, J., dissenting). To begin with, the Courts of Appeals have regularly done so. See, e.g., Pierre v. Gonzales, 502 F.3d 109, 119–120 (C.A.2 2007) (holding that the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is nonself-executing); Singh v. Ashcroft, 398 F.3d 396, 404, n. 3 (C.A.6 2005) (same);
Beazley v. Johnson, 242 F.3d 248, 267 (C.A.5 2001) (holding that the International Covenant on Civil and Political Rights is non-self-executing). Further, as noted, Congress has not hesitated to pass implementing legislation for treaties that in its view require such legislation.
Medellin, 552 U.S. at 522 n. 12. The Court did find that the Senate had prevented judicial enforcement of the ICCPR in Sosa v. Alvarez-Machain, 542 U.S. 692, 728 (2004). However, it
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does not appear the Court considered the various statements the Senate made to the Human Rights Committee as to what it mean by non-self-executing. Additionally, that case was considering whether to create some form of international common law in federal courts. The Court declined, but held:
While we agree with Justice SCALIA to the point that we would welcome any congressional guidance in exercising jurisdiction with such obvious potential to affect foreign relations, nothing Congress has done is a reason for us to shut the door to the law of nations entirely. It is enough to say that Congress may do that at any time (explicitly, or implicitly by treaties or statutes that occupy the field), just as it may modify or cancel any judicial decision so far as it rests on recognizing an international norm as such.
Id. at 731.
Thus, the United States Supreme Court has never truly considered the full history of the ICCPR and how it is binding on courts in our country. As previously stated, the Senate has agreed that our courts should consider the Covenant when considering the rights afforded by our laws and constitutions, and further, that it believes anything granted in the ICCPR is already the law in this country.
The Defense in this matter argues that this Court should consider the ICCPR in its entirety, especially Articles 6 and 7, when construing Mr. Kohberger's rights guaranteed by the Idaho and United States Constitutions and be sure not to construe those rights in a way that would violate this country and state's international obligations under the covenant.
II. Application to Idaho Idaho's death penalty scheme violates the ICCPR, and thereby the Eighth Amendment and Art. I Sec. 6. Because of the improprieties of the capital selection process, the way in which citizens are selected for death goes well beyond the “ most serious crimes ” in violation of Article 6, Section 2. Because of the conditions under which the condemned are incarcerated and the
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excessive delays between sentencing and execution under the Idaho death penalty system, the implementation of the death penalty in Idaho constitutes “ cruel, inhuman or degrading treatment or punishment ” in violation of Article 7 of the ICCPR.
The unconstitutional broadness of Idaho's death penalty scheme is covered in detail in Mr.
Kohberger's Motion to Strike State's Notice of Intent to Seek the Death Penalty on Grounds of Arbitrariness. In addition to the arguments made there, this Court must consider what the Human Rights Committee has found to be “ most serious crimes ” under the Covenant. The Human Right Committee has stated that this “ must be read restrictively to mean that the death penalty should be a quite exceptional measure. ” Human Rights Committee, general comment No. 6, para. 7, HRI / GEN / 1 / Rev.1. (1982) (See Exhibit J). In its Concluding Observations to the United States in 2014, which is the last time the United States fulfilled its obligation by filing a report, the Committee noted that the states continue to kill a disproportionate number of African Americans.
CCPR / C / USA / CO / 4 (2014), at ¶¶ 8 (See Exhibit K). The unconstitutionally discriminatory aspect of the death penalty in this country is only possible because states such as Idaho maintain death regimes that permit prosecutors and juries to pick and choose whom to kill from amongst every first degree murder case.
The cruel, inhuman, and degrading nature of Idaho's death penalty is covered by Mr.
Kohberger's Motion to Strike State's Notice of Intent to Seek Death on Grounds of Means of Execution. Idaho's death row and the incredible wait (assuming Idaho ever has a viable method for killing people) while on death row also violate Article 7 and Article 10, and thereby prohibition on cruel and unusual punishment. Life on death row was recently described by death row inmate Gerald Pizzuto, Jr. in his recent sworn habeas corpus petition (See Exhibit L):
46. Death row in Idaho is typified by isolation.
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47. For instance, death-row inmates in IDOC's custody live by themselves in single cells.
48. Such inmates typically spend twenty-three hours a day in their cells and are let out only to shower, have “ recreation, ” and for other limited exceptions, such as medical appointments.
49. The “ recreation ” that is afforded to a death-row inmate generally involves an hour outside, by himself, with no exercise equipment and, at most, something alon