The Soering Case is Back in the News

by Rick Wilson, guest contributor

Emeritus Professor of Law, American University, Washington College of Law

A few days ago, a name in the local section of the Washington Post jumped out at me. Deep in the back pages of the Metro section was a headline that read “Sheriff: Soering Should be Pardoned.”  Upon closer reading, I confirmed that the Soering referred to in the article was Jens Soering, a German national in prison in Virginia, given two life sentences for the double murder of his girlfriend’s parents. I paused because the decision that led to Soering’s transfer from Europe to the United States to face those charges in a Virginia state court was one of the most significant and controversial cases in the extraterritorial application of international human rights law against the United States. I read on.

It seems that Soering was in the news this time because J.E. “Chip” Harding, the sheriff of Albemarle County, Virginia, whose principal city is Charlottesville, had written a 19-page letter to Virginia’s governor in support of a plea for a pardon for Soering based on lack of sufficient evidence. (The letter can be found in full here). The Roanoke newspaper called the sheriff’s action “the first time in Virginia’s history that an active Sheriff has written such a letter of support to a Pardon request.” The sheriff’s intervention seemed all the more unusual because the Virginia Parole Board had rejected Soering’s request for parole in March. Nonetheless, the sheriff’s detailed analysis included personal interviews with Soering and more than 200 hours reviewing court records and books about the case. The case is now under review in the governor’s office.

The newspaper coverage this time around didn’t review the original decision of the European Court of Human Rights, back in 1989, in part because it’s old news and in part because it’s complicated, even for lawyers. The case arose in England, where Soering was being held in prison pending extradition to the United States to face the double murder charges in Virginia mentioned above. After protracted domestic and international proceedings, the European Court of Human Rights decided, in July of 1989, that extradition to Virginia on capital charges would subject Soering to what the court called “the death row phenomenon,” which the court based on a combination of general factors governing the application of the death penalty in Virginia and specific factors in Soering’s case, such as his age (18 at the time of the alleged offenses) and his mental stability. The more general factors included, most significantly, the risk of a prolonged and psychologically traumatizing wait for execution (the court noted delays of six to eight years between conviction and execution) and the harsh conditions at the Mecklenburg Correctional Center, where Virginia’s death row is located. Taken together, the risk that young Soering would face the death row phenomenon gave rise to a violation of Article 3 of the Convention, which prevents “cruel, inhuman or degrading treatment.” What was most remarkable about the Court’s decision was their necessary speculation that Soering could face the death penalty, and that he could face the death row phenomenon, whether those events came to pass or not. As a result of the ECHR decision, Virginia authorities agreed to withdraw capital charges and try Soering only for double homicide with life imprisonment as the maximum penalty. Pursuant to that agreement, Soering was extradited, tried, convicted and sentenced to two life sentences.

The European Court’s Soering precedent has had multiple impacts on other U.S. cases, some helpful to defendants and some not. First, a number of cases that have reached the United States Supreme Court have made the argument that undue delays in execution can give rise to the death row phenomenon, and that the resulting ill effects on the defendant should give rise to a violation of the Eighth Amendment’s cruel and unusual punishment language. In 2015, Justice Breyer, joined by Justice Ginsburg, cited to Soering in his broad-ranging dissent in Glossip v. Gross, in which he cataloged the multiple failures of the death penalty, including undue delays in execution. He concluded that the death penalty itself is a violation of the Eighth Amendment. Notably, Richard Glossip, whose case remains under a stay in Oklahoma, has been on death row there for 20 years. When presented to the court as a standalone issue, however, the death row phenomenon has never managed to marshal enough votes for review. See, for example, Elledge v. Florida, 119 S. Ct. 66 (1998) (Breyer, J., dissents from denial of review of inmate on death row for 23 years). And in a 2012 case at the European Court, defense lawyers attempted to extend to Soering principle to potential detention of terrorism suspects in solitary confinement in the ADX “supermax” prison in Florence, Colorado. Babar Ahmad and Others v. United Kingdom.  They did not prevail.