America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Turkey debates the non-retroactive death penalty

"The prime minister's statement that any reinstatement of the death penalty in
Turkey cannot be retroactive is very important and correct."
A reinstatement of capital punishment appears to be in the pipeline in Turkey. Although it looks like Nationalist Movement Party (MHP) leader Devlet Bahceli opened the door for it, it was actually President Recep Tayyip Erdogan who initially gave the signal that capital punishment would be included in the government's constitutional draft.

The inclusion of the death penalty into the draft would be useful both for obtaining MHP support and also during the rallies for the impending referendum on constitutional changes for a presidential system. Crowds would chant enthusiastically: "Hang them, hang them." 

Who should we hang? Prime Minister Binali Yildirim answered this on Nov. 1: The death penalty could be reintroduced for a certain "limited" number of crimes and, most importantly, "it should be known that it cannot be retroactive," he said. 

In other words, the death penalty will not be applicable for either the July 15 coup plotters or for the terrorist offenses of members of the outlawed Kurdistan Workers' Party (PKK) and the Islamic State of Iraq and the Levant (ISIL). Until the law is ratified, the punishment for such offenses will continue to be an aggravated life sentence. Capital punishment will be applicable only for acts committed after the date of approval. 

But is it not true that those chanting "death, death" in town squares actually want those guilty of past crimes to be hanged? 

The prime minister's statement that any reinstatement cannot be retroactive is very important and correct. Bahceli should now express his view on this question. 

It has been argued that "the people want the death penalty." But if that is the case, why don't we hold a referendum on the question of migrants? Or why did we criticize the holding of referendums in Europe on building minarets? How can we criticize the appeals to voters by populist politicians using Islamophobic and xenophobic rhetoric? Aren't they also saying, "this is what the people want"? 

To avoid this kind of populism, which is today rising across the world, the political class must be very careful about the law and must carefully scrutinize how decisions made with today's mass psychology could affect the country and future generations. The motivation behind new laws should not be the short-term pursuit of votes, but the responsibility of tomorrow. 

This is absolutely true for Turkey. Breaking away from European legal principles would cause huge damage to the economy and future generations. It's not just me saying that, it is also economists and members of the government like Ali Babacan and Mehmet Simsek. The MHP administration, meanwhile, could also ask former Central Bank governor Durmus Yilmaz how the economy would be affected by breaking away from European law. 

Pointing out that the Turkish economy's per capita GNP has never been able to exceed the $10,000 threshold, stuck in the "middle-income trap," Babacan said back in 2014 that "the legal norms of the Council of Europe are references for us ... Our only remedy is to practice the rule of law in Turkey in the best way." 

Simsek also said in 2015, when he was readying the government's economic program, that "Turkey will have 3 anchors in the coming term: Fiscal discipline will continue, the EU process will be invigorated, and structural reforms will be carried out." 

Sure, let's reintroduce the non-retroactive death penalty; let's hang 3 or 4 terrorists. What would happen then? The Council of Europe would suspend our membership and our EU accession process would freeze. We would self-sabotage 1 of the 3 anchors we rely on in the economy, casting a shadow on our "only remedy" by ourselves. 

Where would the economy go in this eventuality? At present, capital is starting to shrink in the world and foreign exchange rates are rapidly rising. At such a time, Turkey needs an inflow of foreign capital amounting to roughly $200 billion every year. 

True, South Korea is a very successful economy without being an EU member. But in the most recent World Rule of Law Index, South Korea was in 11th place while Turkey was in 80th place. 

That is why Babacan says "our sole remedy is EU Law." If we hamper our economy to this extent, will Turkey's fight against terrorism strengthen? Will terrorists drop their arms out of fear of execution? Was the PKK discouraged back when the death penalty was still in place in Turkey? 

For the good of the country, do we not need science, intellect, debate, moderation, common sense, diplomacy and law more than ever? 

Source: Hurriyet Daily News, November 3, 2016

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