|Disused gallows in Smyrna prison, Delaware, 1991|
In employing the death penalty, the U.S. insists it abides by international law. But it declines to make the most important international commitment - to reject the penalty as a violation of human rights.
Last week, the General Assembly of the United Nations adopted a resolution calling for a worldwide "moratorium on the use of the death penalty" - the 6th that the U.N. has approved in the past decade. Each one has gained the support of more of the organization's members. The latest vote was 117 countries in favor to 409 against. (31 abstained, and 5 did not vote.) In addition to a call for a halt to executions worldwide, the resolution urges countries that maintain the death penalty to increasingly restrict its imposition and to apply international laws that protect the rights of those facing the penalty. The rights include that a death sentence may be imposed only for the "most serious crimes," defined as intentional crimes that have "lethal or other extremely grave consequences," and that execution be carried out only after "a final judgment rendered by a competent court," following a legal process that insures a fair trial and that provides access to appeal to a higher court and the opportunity to seek a pardon or a commutation of the sentence.
At the General Assembly, the United States cast one of the nay votes. Stefanie Amadeo, the deputy representative to the U.N. Economic and Social Council, explained the country's position, which is basically unchanged since the U.S. opposed the 1st resolution against the death penalty, in 2007: "The ultimate decision regarding these issues must be addressed through the domestic democratic processes of individual Member States and be consistent with their obligations under international law," which does not prohibit capital punishment. The position reflects the American reality of supporting the death penalty in principle, but increasingly outlawing it in practice. As Jeffrey Toobin reported recently, the U.S. maintains the death penalty under federal and military law and under the laws of 31 states - even though only 5 states conducted executions in 2016 and executed only 20 people in total, the lowest number in 25 years.
The U.S. stresses the importance of observing global norms. "Just as the United States is committed to complying with its international obligations," Amadeo said, "we strongly urge other countries that employ the death penalty to do so only in full compliance with their international obligations." Meanwhile, in the past 40 years, the U.S. Supreme Court has increasingly sought to restrict the application of the death penalty to the worst of the worst offenders - 1st, to people who commit the most heinous murders and, then, only to adults who commit them, excluding youth under the age of 18. In addition, it generally takes a decade or more for a state to carry out an execution because of challenges to a death sentence allowed under due process of law.
Among the states with the death penalty, 12 have not carried out an execution for a decade or more, and another five have not executed anyone for at least 5 years. In California, where the last execution was in 2006, there were 750 people on death row as of December 2nd. Rather than being executed (the state has executed only 13 people since 1978) it is much more likely that a death-row inmate will die as a result of natural causes or suicide.
Roger Hood, an emeritus professor at Oxford, and Carolyn Hoyle, who directs Oxford's Centre for Criminology, last year published the 5th edition of "The Death Penalty: A Worldwide Perspective." Their book documents the many ways that people are sentenced to death in violation of international law - for drug-trafficking, for example, rather than for "the most serious crimes," in unfair proceedings and with no opportunity to ask for clemency, and while imprisoned in terrible conditions. These and other realities, they write, are moving "the debate about capital punishment beyond the view that each nation has, if it wishes, the sovereign right to retain the death penalty" to persuading "countries that retain the death penalty that it inevitably, and however administered, violates universally accepted human rights." Countries that employ the death penalty and insist that they are abiding by international law, including the U.S., decline to join in making the most important international commitment about the penalty, which is to reject it as a violation of human rights.
There has long been a gap between the idealism that the U.S. expresses when boasting of its dedication to the rule of law, especially the protection of individual rights, and the reality of its persistent refusal to abide by major international human-rights commitments. The U.S. was a leader in the development of the Universal Declaration of Human Rights, which the U.N. adopted in 1948, but stopped supporting the international system to carry it out because, among other reasons, Jim Crow laws directly violated the declaration. There is a sizable list of human-rights treaties - on the Rights of the Child, for example, and on the International Criminal Court - that the U.S. has signed but not ratified. Even when the U.S. ratifies treaties, the government often adds a caveat that excludes protection of some basic rights.
As a result, the U.S. has ended up in some rough company, particularly when it comes to the death penalty. In the past generation, the number of countries that have stopping using the death penalty has doubled, from about 50 to about 100. Of the 57 member states of the Organization for Security and Co-operation in Europe, and of the 35 member states of the Organization of American States, only the U.S. carried out executions last year. The countries that executed the most offenders were, in order, China, Iran, Pakistan, Saudi Arabia, and the United States. China executed thousands of people, though its secrecy about its use of capital punishment makes it impossible to know exactly how many. Excluding China, Iran (with close to 1000 or more), Pakistan (326), and Saudi Arabia (158) executed almost 9 out of 10 people put to death worldwide - "often after grossly unfair trials," according to Amnesty International, and "for crimes - including drug trafficking, corruption, 'adultery,' and 'blasphemy' - that do not meet the international legal standards for the use of the death penalty." In 2015, according to Amnesty International, at least 1634 people were executed, an increase of more than 50 % from the year before and the highest number in a quarter of a century. (The organization expects to release figures for 2016 in the spring.)
The influence of the U.S. on the death penalty worldwide
The United States, in other words, ranks with countries that conspicuously are not in full compliance with their international obligations. And its responsibility is sometimes worse than guilt by association. As Maya Foa, the director of the death-penalty team at Reprieve, an international human-rights organization, told me, "The U.S. clearly leads and influences global death-penalty practice. Our partners, who are lawyers and human-rights defenders in jurisdictions that retain the penalty, tell us that the use of the death penalty by the U.S., a 'developed' nation, is used to justify the death-penalty practice in the jurisdictions they work in." Reprieve is providing legal and investigative assistance to people facing execution in 11 countries, in Africa, the Middle East, and South and Southeast Asia, and in the U.S.
In August at a rally in Istanbul, after the failed coup attempt in Turkey, the BBC reported, the country's President, Recep Tayyip Erdogan, said, "They say there is no death penalty in the E.U. ... Well, the U.S. has it; Japan has it; China has it; most of the world has it. So they are allowed to have it. We used to have it until 1984. Sovereignty belongs to the people, so if the people make this decision I am sure the political parties will comply." He said that the Turkish people might want to restore the death penalty to punish those responsible for killing hundreds of citizens during the attempted coup. That has not happened yet, but, if it does, its purpose, Erdogan suggested, will be a display of cold-blooded power.
The influence of the U.S. on the death penalty worldwide has sometimes been constructive. In 1976, for example, when the Supreme Court ruled that it was unconstitutional for a state to make the death penalty mandatory for any crime, it marked the beginning of the decline of mandatory death sentences around the world. "The fundamental respect for humanity underlying the Eighth Amendment," the Court said, "requires consideration of the character and record of the individual offender and the circumstances of the particular offense."
The Indian Supreme Court employed this logic when it struck down the mandatory death sentence in the country's penal code, in 1983. The legislature, it held, could not compel judges "to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death." More recently, the Cornell Center on the Death Penalty Worldwide reports, 18 other countries have followed suit and struck down the mandatory death penalty, including almost every Caribbean nation and Uganda, Malawi, and Kenya.
Replacing Justice Scalia
In their latest edition of "The Death Penalty," Hood and Hoyle write optimistically about the U.S. example: "Those who campaign for abolition worldwide can hope that it will not be many years before the U.S. Supreme Court will be able to find that the majority of states, in line with a majority of countries worldwide, does not support the death penalty for anyone." Donald Trump has said that he will replace the late Justice Antonin Scalia - the Court's most vehement defender of the death penalty for almost 30 years - with someone in his mold. But, even when that happens, there will be a possibility that Justice Anthony Kennedy will join the Court's moderate liberals in striking down the death penalty, for reasons Justice Stephen Breyer articulated in 2015: "The Court in effect delegated significant responsibility to the States to develop procedures that would" insure the fairness of the capital-punishment system, he wrote. "Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed." If the Court continues to uphold the death penalty, on the other hand, the gap between the U.S. and a large and growing majority of the rest of the world will continue to increase.
Source: The New Yorker, Lincoln Caplan, December 31, 2016. Mr. Caplan, a former New Yorker staff writer, is a senior research scholar at Yale Law School and the author of the new book "American Justice 2016: The Political Supreme Court."
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