death_penalty_new.qxd 02-08-27 12:57 Page 57 UNITED STATES OF AMERICA (USA) commissions to prosecute terrorists for the violations of the laws of war and other applicable laws227. A later Order, which sets out the procedures for trials before the military commissions, makes provision for the death penalty228. The inclusion of the death penalty in the Order has been controversial due to the perceived failure of the trial procedures set out in the Order to comply with international fair trial standards. Of particular concern is the fact that convictions leading to death sentences cannot be appealed before a civilian court independent of the executive branch. The Order limits appellate review to a specially created three member Panel appointed by the Secretary of Defense. In addition, the President retains the final review of convictions and sentences. Mental Retardation At the federal level, the execution of mentally retarded persons is prohibited229. In addition, the U.S Supreme Court has recently ruled that the execution of persons with mental retardation would be contrary to the constitutional prohibition on cruel and unusual punishment230. This ruling will require 20 States to amend their legislation. The right to a jury The U.S Supreme Court has recently ruled that the decision to apply the death sentence must be decided by juries as opposed to judges231. This ruling, which is based upon the sixth amendment of the American Constitution, will affect the way that the death penalty is imposed in five States. These are Arizona, Idaho, Montana, Colorado and Nebraska232. Innocence Protection Act On 18 July 2002 the United States Senate Judiciary Committee approved a draft law titled the Innocence Protection Act. This Act seeks to improve the administration of justice in death penalty cases by ensuring the availability of post-conviction DNA testing in appropriate cases. In addition, the Act will encourage States to establish standards for the appointment of legal counsel for defendants facing the death penalty. 227 228 229 230 231 232 Military Order, Detention, treatment, and trial of certain non-citizens in the war against terrorism, 13 November 2001. Military Commission Order No. 1, Procedures for trials by military commissions of certain non-united states citizens in the war against terrorism, 21 March 2002, Part 6(g). 18 U.S.C. § 3596 (c). 8th Amendment of the American Constitution 1788. Aitkins v. Virginia, No. 00-8452, 20 June 2002. Ring v. Arizona, No. 01-488, 24 June 2002. The exact number of cases to be reviewed in these five states is still to be determined. Four further states (Alabama, Delaware, Florida, Indiana) have hybrid systems whereby the jury provides an advisory sentencing opinion but the judge makes the ultimate sentencing decision. 57