The Death Penalty in the OSCE Area–Background Paper 2019 On 29 October 2018, a man was executed by lethal injection in South Dakota, after pleading guilty and telling the judge to sentence him to death.132 There had been no thorough investigation into his intellectual disability, although this inmate had participated in the Special Olympics and attended special education classes at school.133 Finally, on 19 February 2019, the Supreme Court ruled for the second time that a death row prisoner in Texas may not be executed because of his intellectual disability, countering Texas’ ongoing efforts to execute this inmate.134 According to the 2002 United States Supreme Court ruling in Atkins v. Virginia, sentencing people with mental or intellectual disabilities to death would be a cruel and unusual punishment and these persons are therefore “constitutionally barred from receiving the death penalty.”135 It is, furthermore, contrary to international human rights law, most recently re-emphasised in a UN General Assembly resolution on moratorium on the use of the death penalty.136 The ban on imposition of the death penalty on certain types of people is explained in detail in General Comment No. 36.137 Other concerns regarding discrimination were raised during the reporting period, surrounding the alleged imposition of the death penalty on a man due to his sexual orientation. On 18 June 2018, the United States Supreme Court declined to review the death sentence of this man, who alleges that some of the jurors sentenced him to death in 1993 because of their own stereotypes.138 In an amici curiae brief on 2 August 2018, various civil society organizations highlighted the evidence offered by the defendant, including quotes from jurors explaining that in their deliberations there was “a lot of disgust” regarding the man’s sexual orientation and that others had suggested he “should not be allowed to spend his life with men in prison.”139 Such anti-gay bias in a jury decision raises serious concerns about the unequal application of the death penalty and could be seen to violate Article 2(1) of the ICCPR 132  Death Penalty Information Center, “The Death Penalty in 2018: Year End Report”, op. cit., note 76, p. 14. 133  Ibid. 134  “US Supreme Court Again Reverses Texas Court’s Rejection of Intellectual Disability Claim”, Death Penalty Information Center, 20 February 2019, <https://deathpenaltyinfo.org/news/u-s-supreme-court-again-reverses-texas-courts-rejection-of-intellectual-disability-claim>. 135  “Continuing Issues: Determining Intellectual Disability After Atkins”, Death Penalty Information Center, <https://deathpenaltyinfo.org/policy-issues/intellectual-disability/continuing-issues-determining-intellectual-disability-after-atkins>. 136  UN General Assembly, 73/175. Moratorium on the use of the death penalty, op. cit., note 55. See also: A/ HRC/39/19, para 43; Economic and Social Council resolutions 1984/50 and 1989/64; CCPR/C/74/D/684/1996; A/67/279, para. 58. 137  General Comment No. 36, op. cit., note 10, para. 49. 138  “A Jury May Have Sentenced a Man to Death Because He Is Gay. It’s Time for a Federal Court to Hear His Bias Claim”, ACLU Blog, 6 August 2018, https://www.aclu.org/blog/lgbt-rights/criminal-justice-reform-lgbt-people/ jury-may-have-sentenced-man-death-because-he>. 139  Brief of Amici Curiae, ACLU and others, 2 August 2018, p. 1, <https://www.aclu.org/sites/default/files/ field_document/filed_brief_of_amici_curiae_aclu_et_al.pdf>. 31