ROUNDTABLE: The Death Penalty Debate

This Roundtable was commissioned in response to the concerns of our regular readers, many of whom have expressed great interest in the issue of capital punishment.

Two members of the End to Capital Punishment Movement begin the debate, and a pro-death penalty District Attorney replies.

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• Death Penalty Widens Moral Chasm Between U.S. and World
• America Not a Rogue State

Death Penalty Widens Moral Chasm Between U.S. and World by Frank Jarolímek-Proner and Martin Searle

The issue of capital punishment remains a source of friction between the United States and the international community. At the opening of the 62nd UN General Assembly session this September, the European Union, in continuing its campaign for the promotion and entrenchment of human rights, will once more introduce a resolution calling for a global moratorium on executions. Despite the expected backing of a majority in the General Assembly and 58 percent of Americans believing a moratorium is necessary while the capital process is thoroughly reviewed,1 few will dispute Nobel Peace Prize recipient Jody Williams, a supporter of the resolution, in her assessment, "It is quite unlikely that a UN approved moratorium will influence the U.S. on the death penalty."

Yet, the United States has always been explicitly committed to promulgating international human rights. Indeed, the United Nations Universal Declaration of Human Rights 2, signed in 1948, is largely the result of successful diplomatic endeavors to export American constitutional values to the rest of the world. More recently, an Executive Order signed by President Bill Clinton on the 50th anniversary of the UN's Declaration on Human Rights in 1998 stated that:

It shall also be the policy and practice of the Government of the United States to promote respect for international human rights, both in our relationships with all other countries and by working with and strengthening the various international mechanisms for the promotion of human rights, including . . . those of the United Nations . . .3

The United States has signed numerous treaties that codify and protect human rights held as universal and inalienable. The furthest reaching of these, the International Covenant on Civil and Political Rights (ICCPR),4 was signed by 148 countries and described by the U.S. State Department as "the most complete and authoritative articulation of international human rights law that has emerged in the years following World War II."5 The United States has consistently ratified such treaties with specific reservations regarding provisions that could affect its policies on capital punishment, or not ratified them at all.6 This has produced a divergence between international human rights norms and those of the United States, and as a result, triggered accusations of human rights violations.7

As a result, many argue that the United States is eroding its moral authority, gradually becoming an anti-model rather than a role model at a time of mounting need for international cooperation and coordination to maintain peace and security. This is becoming clear as global and internal concerns emerge over policies on human right issues such as torture, due process, extraordinary rendition, and lethal injection.

America's treaty reservations are framed in direct reference to the U.S. Constitution. Article 6 of the ICCPR, which prohibits the execution of those less than 18 years of age, was the subject of a reservation stating that the United States would continue to pursue such executions "subject to its constitutional constraints."8 The reservation to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stated the United States did not "consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States."9

The sanding down of treaties to the shape of domestic constitutional provisions is done to insulate U.S. sovereignty from other sources of law.10 This tailoring is also meant to allow treaty measures to be enacted through domestic legislative procedures, and expressly not with the intention of avoiding recognition of the rights they espoused.11

Yet, many of the substantive rights surrounding capital punishment have not been incorporated through domestic legislation, and as such have simply not been recognized in the United States.12

This vacuum has colored the domestic debate surrounding capital punishment, leading it away from characterization as a human rights issue.13 By concentrating instead on the justifications of deterrence and retribution, the death penalty has been firmly tied to the issue of law and order.14 The application of any international treaty on capital punishment, therefore, while constitutionally applicable through the supremacy clause,15 would run the risk of being condemned as impinging on State sovereignty over criminal policy using the vehicle of foreign affairs.16

As a result of this refusal to acknowledge these rights through legislative channels, concerns are taking root outside the legislative process. The judiciary, advocates, and the wider public forum are beginning to address the human rights issues presented by capital punishment. The Supreme Court ruled in Roper v. Simmons that execution of those who committed an offense when they were less than 18 years of age violates the Eighth and Fourteenth Amendments, in explicit and controversial acknowledgment of the codification of rights embodied in Article 6 of the ICCPR (un-ratified by Congress), and the United Nations Convention on the Rights of the Child (un-ratified by Congress).17 While the rights were derived from the Constitution, and are strictly speaking domestically formulated, the sourcing of the decision in international human rights norms not passed by Congress has proven contentious.18

The Murder Victims' Families for Human Rights report Creating More Victims: How Executions Hurt the Families Left Behind has brought to the attention of the UN that executions may be creating a new class of "shadow victims" as defined by the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.19 The report argues that:

The harm that families of the executed suffer has distinct characteristics. But at its core, it is more like than unlike the harm suffered by any people whose family members' lives have been deliberately taken.20 […] We believe a strong case can be made that this group falls within the Declaration's parameters and therefore deserves the recognition and attention that ought to be accorded to any people who have suffered a violent and traumatic loss.21

The report thus implies that the United States may be a world leader in creating a yet undetected and fully recognized class of human rights violation victims, begging the important question of whether justice that produces more pain and more victims is ethical.

The issue of innocence also has become the principal concern among Americans.22 Nowhere do the America's founding principals of freedom and individual liberty mesh so tightly with international human rights, and morality in general, than over the risk of executing the innocent. The march of exonerated death row inmates—124 since the reinstatement of the death penalty in 1976—has shaken the confidence of the public in the capital system,23 and 60 percent of Americans now say these wrongful convictions have either lessened their support for the death penalty or strengthened their already existing opposition.24

U.S. reaction to international pressure over this issue evokes a precedent, arguably the first issue concerning international human rights. The first half of the 19th century saw numerous international treaties signed by the then maritime powers of the world to enforce abolition of the slave trade. These permitted the mutual search of vessels, and created mixed courts to punish treaty violators.25 The United States resisted these initiatives too. It protested vigorously the boarding of American ships by the British, claiming the policy was "alarming to national sovereignty and sensibility, and the friendly relations of the two countries,"26 and objected to the mixed courts as "incompatible" with the U.S. Constitution.27 This unwillingness to embrace international standards directly prolonged this systemic violation of human rights.

Today there is a growing chasm between the United States and international human rights norms. Done to shield the Constitution on principle from "un-American" notions, it is stymieing ethical discussions and potential evolution. Growing human rights concerns in areas of society outside the legislative process, in recognition of the growing international consensus on the death penalty, demand attention from those within it.

The sanctity of human life is common to all ideologies, but the prism of global cultures, with their varying conceptions of the right and the good, will challenge any claim to ideological infallibility. The international forum is an arena of debate and deliberation; of sharing and judging ideas. Such exchanges, and the treaties born from them, are particularly relevant in the shared goals of combating violence and entrenching protection for human rights. That many countries, most recently the Philippines, Liberia, Rwanda, and Burundi, have sought to abolish capital punishment after witnessing and suffering from violence on the grandest scale offers insights into alternative ways to deal with criminal behavior while respecting human rights.

Perhaps marrying capital punishment with a respect for inalienable rights requires an absolute knowledge that evidently remains beyond us. Capital punishment expresses a pretense to infallibility, which results in a reluctance to engage in thorough discussion to justify one's practices, and learn from the experiences of others. Ultimately, this problem may be contributing to U.S. political and ethical isolation. 1 Richard Dieter, A Crisis of Confidence: Americans' Doubts About the Death Penalty, p. 11. Significantly, Dieter also states that 69% of Americans believe reforms will not eliminate all wrongful convictions and executions p. 13.

2 Adopted by General Assembly Resolution 217 A (III), Dec. 10 1948

3 Executive Order: Implementation of Human Rights Treaties, Dec. 10, 1998 (President Clinton).

4 International Convention on Civil and Political Rights, General Assembly resolution 2200A (XXI) of Dec. 16, 1966.

5 U.S. Dept. of State, Civil and Political Rights in the United States: Initial Report of the United States of America to the U.N. Human Rights Committee under the International Covenant on Civil and Political Rights, July, 1994, at i (introduction)

6 The US has signed and ratified, with reservations, the International Convention on Civil and Political Rights, General Assembly resolution 2200A (XXI) of Dec. 16, 1966; Covenant Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Assembly resolution 39/46 (Dec. 17, 1984). It has signed, but as yet not ratified, the American Convention on Human Rights, Organization of American States Treaty Series No. 36, July 18, 1978; Convention on the Rights of the Child, General Assembly resolution 44/25 of Dec. 12, 1989. Importantly, given accusations of racial bias in the administration of the death penalty, the US signed and ratified, without reservation ,the Convention on the Elimination of All Forms of Racial Discrimination, General Assembly resolution 2106 A (XX) (Dec. 21, 1965).

7 See International Commission of Jurists, Administration of the Death Penalty in the United States p. 68.

8 See U.S. Reservation to Article 6 of the ICCPR, UN Doc. ST/LEG/SER.E/13, p.175 ("The United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below 18 years of age").

9 See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A.Res. 39/46 (Dec. 17, 1984). U.S. Reservation I(4) ("The United States understands that international law does not prohibit the death penalty, and does not consider this Convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of the United States, including any constitutional period of confinement prior to the imposition of the death penalty.")

10 However, these reservations may, in fact, erode sovereignty. See David Sloss, Using International Law to Enhance Democracy.

11 See International Human Rights Treaties: Hearings Before the Comm. On Foreign Relations, U.S. Senate, 96th Cong. 315 (1979), "the purpose of the [juvenile death penalty] reservations was to ensure that "further changes in our [domestic] laws will be brought about only through the normal legislative process." And International Covenant on Civil and Political Rights: Hearing Before the Comm. On Foreign Relations, U.S. Senate, 102d Cong. 15 (1992) (Statement of Richard Schifter) "[I]f the Congress desires to change existing domestic laws, it will undoubtedly want to do so by statute, in the customary, legislative process."

12 See Richard C. Dieter, The Death Penalty and Human Rights Law in particular pp. 6-7

13 See ibid. pp. 6-7.

14 For goals sought through capital punishment in US see FURMAN v. GEORGIA, 408 U.S. 238 (1972) (JUSTICE MARSHALL, concurring).

15 For a discussion on this, see supra note 6, pp. 39-41.

16 This is seen in application of international trade agreements. See the National Association of Attorneys General (NAAG) letter to USTR Robert Zoellick (7/2/03) (available http://www.citizen.org/documents/NAAG_GATS_July_2003.pdf): "We also think it is vital to maintain the principle that the United States may request, but not require, states to alter their regulatory regimes in areas over which they hold constitutional authority."

17 Roper v. Simmons, 543 U.S. 551 (2005)

18 See ibid. (Scalia dissenting)

19 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Adopted by General Assembly resolution 40/34 of 29 November 1985.

20 Susannah Sheffer and Renny Cushing, Creating More Victims: How Executions Hurt the Families Left Behind, p. 21

21 Ibid. p. 1

22 See supra at note 10, pp. 19-22.

23 Over 120 people have been freed from death row since 1973. See Death Penalty Information Center's list of exonerations at http://www.deathpenaltyinfo.org/article.php?scid=6&did=110

24 Richard Dieter, A Crisis of Confidence: Americans' Doubts About the Death Penalty, pp. 4-5

25 E.g. The Anglo-Portuguese Treaty, signed July 28, 1817; the Anglo-Spanish Treaty signed September 23, 1817; The Anglo-Dutch Treaty, signed May 4, 1817.

26 See, e.g., Stevenson to Aberdeen, Sept. 10, 1841, in id. at 263, 266.

27 Letter from President James Monroe to the Senate: Slave Trade Convention With Great Britain, May 21, 1824, in The Political Writings of James Monroe, pp. 328-330 (James Lucier, ed., 2001)

America Not a Rogue State by Joshua Marquis

Opponents of capital punishment claim that the fact that about 75% of Americans support capital punishment for the worst of the worst is evidence of our barbarity and it makes America a rogue nation.

Neither is true, and a closer examination shows that the incredible diversity that is America underlies the continuing debate about the death penalty. Above all, we are a democracy and unlike western European republics that tend to be governed by the elites we believe that the people should actually set policy. Thus, the decision whether to even allow capital punishment as an option for the legal system is left up to each state and 38 of the 50 states allow it, while 12 states and the District of Columbia do not.

Polling in America is not that different from polling done of the general citizenry in Europe. Everything depends on how you ask the question. If you ask, "Do you think murderers should get the death penalty?" roughly two-thirds of Americans say yes. But when the question is, "Is there any crime that ever merits the death penalty?" the positive responses are in the low 80s. Interestingly in all European nations, except France, polling shows that the citizens of most countries actually would like to have capital punishment as an option.

The European revulsion at capital punishment is more a function of entry in the European Economic Union than moral principle. It's easy to understand that nations that had institutional murder just over half a century ago might be loathe to have the state involved in executions.

If we expand our horizons beyond western nations to include eastern democracies such as Japan, South Korea, and India we find that these nations continue to use capital punishment. The nations that have recently abolished capital punishment (Liberia, Russia, and South Africa) did so because of human rights abuses by the government that has absolutely no parallel in the United States.

Does that mean the criminal justice system in the United States is flawless and does not require further scrutiny? Absolutely not. But to suggest that innocent people end up in prison with regularity to say nothing of death row is pop culture. Serious students of American capital punishment agree that about 30 people have been sentenced to death since 1976 who were in fact innocent—and none of them were executed. The very system of elaborate due process that costs so much money and takes decades for a case to proceed ensures extreme scrutiny of every case.

The claim of innocents on death row is a relatively recent argument, since American death penalty foes have recognized that a solid two-thirds to three-quarters of the American population finds capital punishment morally acceptable in certain circumstances. In fact a prominent legal scholar Cass Sunstein has created something of a storm of controversy with his paper "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs". His thesis is that if a string of non-ideological academic studies are indeed correct that capital punishment actually deters murders, then the refusal to impose the penalty in effect condemns innocent people to death-presenting a life-life tradeoff.

Just as the war criminals who engineered the deaths of so many in Germany were adjudged by the Nuremburg international courts of justice to have been guilty of such heinous crimes that death was an appropriate punishment, there remain some murderers so evil and so dangerous that to protect life, to affirm life, there are circumstances in which a killer's life is legitimately forfeited.