David Keys. Handbook of Transnational Crime & Justice. Editor: Philip Reichel. Sage Publication. 2005.
Murray Edelman (1964) has remarked that the public often bases its attitudes toward government not on empirical facts or interests, but on whether given laws are symbolically reassuring. Edelman concludes, “Political acts or events in the news commonly mean different things to different groups of spectators, dividing men rather than uniting them” (p. 12). The capital punishment laws that exist in 38 U.S. states, as well as in U.S. federal and military jurisdictions, have significant qualities, both symbolic and instrumental. They serve as a moral response to high rates of homicide in the southern United States, where violent crime and executions are most common, and they are also a morally repugnant symbol to the minority of Americans who oppose state-sanctioned killing (Galliher, 1989) as well as to a majority of nations in the world (Radelet, 2003). In some instances, capital punishment is a remnant of colonial domination and institutionalized oppression (Galliher, Koch, Keys, & Guess, 2002). Very few homicide convictions result in actual executions, as the five U.S. states that lead in executions demonstrate, yet the perceived need for the threat of such violence has a currency in the United States that does not exist in other nations of the Western Hemisphere or in other industrialized countries, with the exceptions of Japan and China.
The U.S. position on capital punishment has been the foundation for disputes with other nations; it has created tensions surrounding the executions of foreign nationals who have been tried and sentenced in the United States, contradicted progressive social trends within the European Union, jeopardized the delicate relationship between the United States and Mexico, and thrown obstacles in the way of the humanitarian objectives of the United Nations. Although other issues—concerning international criminal courts, control of weapons of mass destruction, and the use of internationally sanctioned force—have hobbled U.S. diplomatic efforts at the beginning of the 21st century, the use of capital punishment by the majority of U.S. domestic jurisdictions has added emotional fuel to a crisis that threatens to further isolate the United States from the rest of the world. This chapter examines the circumstances surrounding the use and the abolition of capital punishment in the world while also addressing the effects on diplomatic relations of the continuing advocacy and practice of executions in the United States.
American Exceptionalism, Social Peace, and the Death Penalty
Poveda (2000) builds a compelling case for U.S. “domestic exceptionalism,” putting forth the idea that internal political conditions (conservatism), economic conditions (decreasing real wages), and social conditions (incomplete assimilation of African Americans) have tended to set the United States apart from its technically sophisticated Western counterparts on the issue of the death penalty. The blooming of hard-line conservative politics following the 1980 presidential election, the decrease of well-paying manufacturing jobs, and the persistent open wound of race relations in the United States constitute, in Poveda’s view, the foundation of support for capital punishment.
Poveda (2000) identifies a trend toward abolition of capital punishment in most Western nations that was sustained throughout the 20th century, but he does not attempt to characterize those nations or those that retain and regularly use capital punishment. Of the 89 nations (Amnesty International, 2001) that continue to use the death penalty, 37 have predominantly Muslim populations or very significant minorities using systems of Islamic justice; 31 are found on the African continent, and another 12 are in and around the Caribbean Basin and were formerly European colonies. Of the remaining nations in the Americas, only Guatemala and the United States still use capital punishment. Excluding the People’s Republic of China and Japan, the United States is the only technically sophisticated, industrialized nation in the world to use the death penalty regularly.
Among those nations that have abolished capital punishment since the end of World War II, membership in the European Union has been a significant force in reform, although some have emerged from periods of authoritarian government and sought liberal reforms, including the abolition of executions. Cambodia sought abolition in 1989 after its terrible encounter with the Khmer Rouge, and the Dominican Republic (1966) and Spain (1978) sought to limit the power of government in this manner following the overthrow of long-standing military juntas headed by Generals Trujillo and Francisco Franco, respectively. A similar circumstance accompanied abolition of the death penalty in Haiti in the wake of the infamous dictator François (Papa Doc) Duvalier, who oversaw his country’s last legitimate execution in 1972. The Haitian people realized full abolition in 1989 under his son, François (Baby Doc) Duvalier, Jr. Chile abolished capital punishment relatively recently, after a long and bloody experience with right-wing extremism headed by General Augusto Pinochet and the resurgence of the Left, which was nearly wiped out after a 1973 military coup and the assassination of President Salvador Allende. Nicaragua abolished the death sentence in 1979, following the ouster of the infamous Somoza family, which had governed that country since 1932, and Romania did so in 1989 after the grisly Christmas Day execution of former premier Nicolae Ceausescu and his wife, which was nationally televised.
Probably the most surprising and numerically significant abolition of capital punishment came in South Africa in 1995, a change that was enacted after a long period of state-sponsored and secret executions by the white apartheid governments, which ended their reign in 1991. Within the United States, Alaska and Hawaii both abolished executions as soon as they had appropriated the necessary elements of home rule and universal suffrage, primarily in response to the fact that nearly all of the individuals executed there in the past had been people of color (Galliher et al., 2002). Hawaii in particular was keen to nullify capital punishment laws because the death penalty had fallen exclusively on Asians and Asian Americans during the island’s tenure as a feudal kingdom and U.S. territory (Galliher et al., 2002, pp. 148-149).
Among the most far-reaching examples of the abolition of capital punishment, South Africa is exceptional in that its negation of the death penalty, enacted by President Nelson Mandela, immediately preceded the establishment of the Truth Commission, the body empowered to investigate and try members of the former apartheid governments for abuses while in power. It was Mandela’s intention to limit the commission’s sentencing latitude in an effort to promote restorative justice in a country that stood at the brink of civil war for more than four decades.
The reforms noted above paint a clear image, showing that the abolition of capital punishment is a major step toward the promotion of racial peace and social healing. These reforms also constitute tacit recognition that capital punishment excites retribution and delays the formulation of coolheaded solutions to social problems. Although there are distinct differences between the nations named above and the United States, problems of racial/ethnic tensions and ideological polarization do exist in the United States, and it cannot be denied that executions have been, and continue to be, a flash point in the debates surrounding those problems. All Americans who desire social peace within the United States and improved relations between the United States and its Western partners must consider the issue of capital punishment in terms of its substantial limitation or eventual abolition.
International Law and U.S. Compliance
Over the past half century, international policy and law have consistently moved toward a global moratorium on and/or abolition of capital punishment, with significant steps employed to restrict and narrow the use of the death penalty. As of 2002, more than half the countries in the world had either abolished capital punishment by statute or were in a condition of virtual abolition, in which death penalty statutes exist but are never used.
Since 1930, the various states and other jurisdictions of the United States have executed 4,755 people, more than 300 of whom were juveniles at the time they committed their crimes. When the pace of U.S. executions began to increase in the 1990s, the United States came into serious conflicts with other nations over the use of capital punishment (Espy & Smylka, 1994, 2002). In a foreign policy sense, the use of executions by the U.S. federal government and 38 U.S. states poses serious obstacles to the United States’ making moral and diplomatic connections with other advanced nations of the world and hinders the United States in securing, in the world’s eyes, the role of a cooperative nation governed by legal standards and moral tenets.
Almost immediately following the establishment of the United Nations, a movement began within that body to control and reduce the use of deadly force by member states; this movement has gained in momentum since 1980. As of 2003, more than half of the U.N. member nations had either abolished their capital punishment laws or had stopped using their existing death penalty statutes (Radelet, 2003). The following list briefly describes some of the ways the United Nations and other international organizations have worked in opposition to capital punishment since 1948:
- 1948: The United Nations adopted, without a dissenting vote, the Universal Declaration of Human Rights, proclaiming the right of every individual to protection from deprivation of life. The declaration states that no person shall be subjected to unusual or degrading punishment and that the death penalty violates both of these fundamental rights.
- 1963: The Vienna Convention on Consular Relations (April 24) sought to regularize the procedures under which foreign nationals who are detained, indicted, tried, and sentenced in foreign countries can have access to their home countries’ consuls.
- 1966: The United Nations adopted the International Covenant on Civil and Political Rights (ICCPR; see United Nations, 1992), Article 6 of which states that “no one shall be arbitrarily deprived of his life” and that the death penalty shall not be imposed on pregnant women or on any persons who were under the age of 18 at the time their crimes were committed. In addition, Article 7 of the ICCPR states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
- 1984: The U.N. Economic and Social Council adopted, and the General Assembly endorsed by consensus, the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty. These safeguards state that no one under the age of 18 at the time of his or her crime shall be put to death and that anyone sentenced to death has the right to appeal the conviction, to petition for pardon, or to request a commutation of sentence.
- 1989: The U.N. General Assembly adopted the Second Optional Protocol to the ICCPR. The goal of this protocol is the abolition of the death penalty.
- 1990: The General Assembly of the Organization of American States adopted the Protocol to the American Convention on Human Rights, which provides for the total abolition of the death penalty, allowing for its use in wartime only. 1993: The International War Crimes Tribunal stated that the death penalty is not an appropriate punishment, even for such offenses as crimes against nature and genocide. 1994: In the U.N. General Assembly, Italy introduced a draft resolution aimed at establishing an international moratorium on executions, making several key points about the philosophical gap that exists on this issue between the United States and the rest of the world. The Italian delegation cited the fact that the war crimes tribunals in the former Yugoslavia and Rwanda dispensed with the death penalty and repeated what has become a familiar refrain, that the “abolition of the death penalty contributes to the enhancement of human dignity and progressive development of human rights” (U.N. Document A/49/234, 1994, cited in Schabas, 1997, pp. 112-126).
- 1995: The U.N. Convention on the Rights of the Child acquired the force of international law. Article 37(a) of this convention prohibits the use of the death penalty for any person under the age of 18 at the time of his or her crime.
- 1999: The U.N. Commission on Human Rights (UNCHR) passed a resolution calling on all member states that were continuing to utilize capital punishment to progressively narrow the numbers and types of offenses under which convicted defendants may be sentenced to death.
- 2001: The UNCHR approved a European Union motion requesting that member nations impose a moratorium on executions.
- 2002: In February, the Council of Europe’s Committee of Ministers adopted Protocol 13 to the European Convention on Human Rights, which in substance is the first legally binding international treaty to abolish capital punishment in all circumstances. In May, 36 countries became signatories to the convention immediately upon its opening (Amnesty International, 2003).
As late as May 2, 2002, the United States, over the signature of President George W. Bush, specifically agreed to assist and ensure European Union policies, among them Section II (Global Challenges), Paragraph 3, of the Joint European Union-United States Action Plan, which reads as follows:
- identify means of strengthening international judicial assistance and cooperation in the obtaining of evidence and other relevant information;
- cooperate on the judicial seizure and forfeiture of assets;
- identify means to strengthen and improve international mechanisms for extradition, deportation, mutual legal assistance and other cooperative action to ensure that international fugitives have “nowhere to hide”;
- cooperate in promoting the work of the Hague Conference on Private International Law and the International Institute for Unification of Private Law (UNIDROIT).
One might assume that entering into such an agreement would require full cooperation with the International Court of Justice (ICJ) and with U.N. authorities that often work in conjunction with the European Union. However, these well-publicized summit meetings have had little effect on the day-to-day treatment of foreign nationals confined and condemned in the United States or on the practice in many U.S. jurisdictions of charging juvenile defendants as adults (European Union Council on Human Rights, 2002).
Complications in U.S.-Mexican Relations
Article 36 of the Vienna Convention on Consular Relations (1963), signed and ratified by the United States in 1969, states:
If he so requests, the competent authorities of the receiving State shall inform the consular post of the sending State if a national of that State is arrested or committed to prison. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.
Among a variety of functions aimed at ensuring due process for the accused, this convention guarantees assistance of consul and the defendant’s right to an open and fair trial. This includes the foreign defendant’s rights to understand the nature of the charges brought (and to have the assistance of an interpreter if necessary) and to be protected against self-incrimination, whether through coerced confession or compulsion to testify against him- or herself. However, despite these protections, more than 50 foreign nationals whose treatment has apparently not been in compliance with the convention are currently awaiting execution in U.S. prisons.
The relationship between the United States and Mexico has suffered considerable setbacks since the late 1990s owing to tensions around the emotional issues of immigration and capital punishment. These two issues are intertwined because the U.S. states that border Mexico have engaged in efforts to make immigration more difficult and to create circumstances that would serve to make the United States less attractive to immigrants, particularly those from Latin America.
In the first major congressional action on immigration in a decade, the U.S. House of Representatives in March 1996 passed, by a vote of 333 to 87, the Immigration and National Interest Act, a bill designed to crack down on illegal immigration. This act’s most controversial element is that it allows increased vigilance at popular border crossings, which has had the effect of forcing those seeking illegal entry into the United States to use rural desert routes that have proven deadly, not only because of climatic hazards, but also because of vigilance movements among U.S. nationals whose members murder illegal aliens out of the sight of traditional law enforcement agencies. Subsequent to passage of the act, U.S.-Mexican relations were complicated by a rise in vigilante movements against illegal migrants trying to cross into California, Arizona, New Mexico, and Texas. If this bill led to a perception among Mexicans that the United States places a very low value on the lives of persons who cross the border illegally, the use of the death penalty on Mexican nationals has assured them that this is so.
President Vicente Fox, the Mexican head of state, canceled a trip to Texas and a meeting with George W. Bush in August 2002 as a “repudiation” of the decision of a Texas court to execute Javier Suarez Medina, 33, who was convicted of killing Dallas undercover police officer Lawrence Cadena in 1988. The Mexican newspaper La Jornada, which has traditionally been very critical of Fox’s policies and those of his conservative National Action Party, commented in an editorial, “The presidential determination to cancel the trip to Texas is consistent with the defense of life, dignity and of the traditional posture of Mexico against the death penalty, and as such it deserves society’s full approval and support” (“Fox Visit,” 2002). The Medina execution precipitated the imposition by Mexico’s highest court, the Suprema Corte de Justicia de la Nación (SCJN), of new restrictions on previous rulings that allowed the extradition of Mexican citizens to the United States. Previously, in an effort to help the United States prosecute drug traffickers, Mexico allowed the extradition of Mexicans to the United States on a variety of criminal charges. In its October 2, 2002, ruling, however, the SCJN curtailed the Mexican government’s authority to extradite any Mexican citizen facing any punishment harsher than the equivalent of Mexico’s life sentence, which stands at maximum of 60 years in prison. This break in diplomacy immediately threatened the operation of the justice system in Bexar County, Texas, in that the SCJN has refused to allow the extradition of a high-profile murder suspect, Eric Quesada, on the grounds that he faces the possibility of a death sentence in the United States. Bexar County officials are faced with the choice of dropping capital charges or allowing Quesada to go free in Mexico (Rodriguez, 2002). The problem is even more pronounced in California, where, according to California prosecutors, more than 60 murder suspects have crossed the border into the Mexican state of Baja California (Miller, 2002). Los Angeles County prosecutors recognize that Mexican officials traditionally do not extradite their own citizens back to the United States for trial, but the fact that they have recently become reluctant to return U.S. citizens owing to the possibility of capital punishment or sentences of life without parole (Miller, 2002) is causing concern north of the border (“Refuge in Mexico,” 2003).
Mexico has also pressed its case in the International Court of Justice in the case of Avena and Other Mexican Nationals, consolidated in Mexico v. United States of America (2003). Mexico’s petition to the ICJ, filed January 9, 2003, contended that Avena and others had been denied their consular rights under provisions of Article 36 of the Vienna Convention on Consular Relations. An examination of the cases of foreign nationals on U.S. death rows reveals that, in nearly every case, the arresting authorities failed to notify the detained foreign nationals of their rights to communicate with their consular representatives, to make subsequent consular visits, and to have access to attorneys. In that Article 36 ensures that all persons arrested outside of their home countries have the means at their disposal to prepare an adequate defense and to receive the same treatment before the law as domestic citizens, compliance with the law is an essential feature of international relations. In Mexico v. United States, Mexico asserted that the United States did not comply with the law, and foreign nationals, confronted by an unfamiliar legal system, were tried and sentenced to death without the support they should have received from the authorities of their native countries. Since 1993, the United States has executed at least 5 foreign nationals, including citizens of the Dominican Republic, Mexico, and Cuba. Currently, 51 Mexicans await execution on U.S. death rows. California (36), Texas (25), and Florida (22) prisons are currently detaining the majority of the foreign nationals slated for capital sentences, with 29 other states and the federal government holding lesser numbers.
On February 5, 2003, the ICJ unanimously ordered in the case of Mexico v. United States:
- The United States of America shall take all measures necessary to ensure that Mr. Cesar Roberto Fierro Reyna, Mr. Roberto Moreno Ramos, and Mr. Osvaldo Torres Aguilera are not executed pending final judgments in these proceedings;
- The Government of the United States of America shall inform the Court of all measures taken in implementation of this order.
Justice system authorities in Harris County, Texas, have not acknowledged receipt of the ICJ order, nor has any sentence of the individual named above, Cesar Reyna, been stayed, commuted, or set aside. In addition, Texas authorities commented in 2003 that the ICJ “had no jurisdiction in Harris County criminal matters and that the [presumably U.S.] Department of Justice has not seen fit to inform the county of the international court’s ruling” (Harris County Circuit Court Clerk’s Office, personal communication, 2003).
What are the consequences of ignoring an ICJ order, even if it is interpreted as international interference in Texas justice? Miller (2003b) has broached this question in the state’s leading professional journal for attorneys, Texas Lawyer:
The United States expects Mexico to continue to respect its legal obligations on water rights, tariffs, extradition, and drug trafficking, not to mention the Vienna Convention requirements when US citizens are arrested south of the border. (One would think most Texans gladly would trade a delay in two executions for progress on water rights and extradition.) But a high price may be paid if the United States continues to ignore international law on an issue that Mexico regards as vital. (p. 38)
The idea behind the Vienna Convention is that consuls are uniquely placed to provide essential services to their nationals, including legal advice and assistance, translation, notification of family, the transfer of documentation from the native country, and observation of court hearings. Part of the philosophy of noncompliance that local jurisdictions hold is based in the reality that consular personnel have legally obstructed the attempts of law enforcement authorities to extract confessions from suspects and mitigated the efforts of prosecutors to pressure defendants into pleading guilty. In turn, part of the resentment that foreign governments feel toward noncompliant jurisdictions is founded on the emphasis that the U.S. Department of State places on Article 36—specifically, that it considers notification for American citizens taken into custody beyond U.S. borders to be a serious matter, but has taken no real steps to ensure compliance of U.S. justice agencies with the Vienna Convention or to correct past violations that have resulted in foreign nationals’ being condemned to death and executed. At its core, the United States’ habit of ignoring the concerns of foreign governments’ efforts on the part of their citizenry endangers all Americans who travel abroad.
From the Mexican perspective, immigration crackdowns and systematic refusals to grant internationally guaranteed rights are part of a seamless U.S. policy of exclusion and calculated symbolism designed to threaten Mexicans in the United States and deter further immigration. Chief among the symbols are the treatment, convictions, and executions of Mexican nationals in the United States for crimes that would not have merited the death sentence in Mexico. In a larger sense, the failure to comply with ICJ rulings is a serious blow to U.S. credibility. As Miller (2003b) puts it:
With its rejection of virtually every major UN initiative, from the Kyoto Treaty to the International Criminal Court [and now add the war on Iraq and the negation of the Nuclear Non-Proliferation Treaty of 1995], the Bush Administration has given the impression that it lacks a long-term commitment to international law. (p. 38)
The conduct of U.S. state courts in death penalty cases involving foreign nationals creates two troubling realities:
- It reverses or obstructs a trend in international lawmaking that has sought to institute standards and norms that acknowledge “a nexus between our nation’s own judicial traditions and the opinions of mankind” (Levesque, 2001, p. 756).
- It creates the impression that U.S. courts are not motivated by respect for international law. Rather, as articulated by Justice Blackmun, “at best, the present Supreme Court enforces some principles of international law and some of its obligations some of the time” (Levesque, 2001, p. 757).
Complicating the implementation of international law and the prerogatives of U.S. state and local jurisdictions, the issue of the execution of juveniles has become a serious stumbling block for the United States. Article 6 of the ICCPR states that “sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.” Although the United States signed and ratified the ICCPR, the U.S. government has not acted to implement it in local circumstances, as expressed in the U.S. declarations and reservations to the treaty:
- The United States reserves the right, subject to its Constitutional constraint, 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 eighteen years of age.
- That because US law generally applies to an offender the penalty in force at the time the offense was committed, the United States does not adhere to third clause of paragraph 1 of article 15.
- … the United States reserves the right, in exceptional circumstances, to treat juveniles in the criminal justice system. (ICCPR Declarations and Reservations; see United Nations, 1992)
Complications in U.S.-European Relations
The problem of lack of consular access for foreign nationals charged with capital crimes in the United States have not been limited to Mexicans alone. The Federal Republic of Germany has also filed suit against the United States in the International Court of Justice on behalf of two German nationals, brothers Karl and Walter LaGrand, who were charged with murder in Arizona. The ICJ suit alleged very similar circumstances to those alleged in Mexico v. United States. The decision of the 15-judge panel (14 votes to 1) reads, in part:
Finds that, by not informing Karl and Walter LaGrand without delay following their arrest of their rights under Article 36, paragraph 1 (b), of the Convention, and by thereby depriving the Federal Republic of Germany of the possibility, in a timely fashion, to render the assistance provided for by the Convention to the individuals concerned, the United States of America breached its obligations to the Federal Republic of Germany and to the LaGrand brothers under Article 36, paragraph 1;
IN FAVOUR: President Guillaume; Vice-President Shi; Judges Bedjaoui, Ranjeva, Herczegh, Fleischhauer, Koroma, Veresh-chetin, Higgins, Parra-Aranguren, Kooijmans, Rezek, Al-Khasawneh, Buergenthal (United States);
AGAINST: Judge Oda (Japan). (Federal Republic of Germany v. United States of America, 2001)
Unfortunately for the LaGrand brothers, the state of Arizona carried out their executions as scheduled in the spring of 1999, Karl LaGrand dying by lethal injection on February 24 and Walter LaGrand on March 3. Although the ICJ decision came more than 2 years after the LaGrands were executed, Germany also petitioned the ICJ, seeking assurances that the United States would never repeat the errors. The ICJ noted:
Takes note of the commitment undertaken by the United States of America to ensure implementation of the specific measures adopted in performance of its obligations under Article 36, paragraph 1 (b), of the Convention; and finds that this commitment must be regarded as meeting the Federal Republic of Germany’s request for a general assurance of non-repetition. (Federal Republic of Germany v. United States of America, 2001)
Despite the ICJ’s ruling in this case that the United States must give reasonable assurance that consular access would be a reality for at least German nationals arrested in the United States, more legal difficulties loomed on the horizon for foreign nationals sentenced to death in U.S. courts. As of February 1, 2003, there were 112 foreign nationals sitting on American death rows. California had the greatest number, with 36. Of the five U.S. states where executions are most frequent, only Missouri had no foreign nationals on death row; among the others, Texas had 25; Florida, 22; Oklahoma, 4; and Virginia, 1. Of the 112 foreign nationals awaiting execution, 56 are citizens of nations that either have abolished capital punishment or have not used it in decades; 51 are from Mexico, 3 are from the United Kingdom, 3 are from Colombia, 3 are from El Salvador, and 1 is from Peru. With the precedents set in the ICJ concerning consular access for foreign nationals in the LaGrand and Avena cases, the outlook is gloomy for the United States and the potential for more embarrassment is real.
Critics of the U.S. position in regard to ICCPR declarations and reservations say that reserving the right to execute persons for crimes they committed when they were juveniles violates the entire spirit of the treaty, and that this amounts to a repudiation of the spirit of the treaty rather than an endorsement of it. Amnesty International (1986) has insisted that the United States, through either legal complication or overt violation, fails to abide by the covenant it has promised to uphold, and that this results in the execution of individuals who are protected by international law. In cases where defendants have attempted to invoke the protection of international treaty, American domestic courts have insisted that “rights under International common law must belong to the sovereigns, not to individuals,” meaning that individuals have no standing and no right to invoke international treaty in an effort to guide or restrict sentencing (United States v. Hensel, 1983; United States v. Noriega, 1990).
This interpretation has come under fire in the U.S. District Court of Northern Illinois. In the case of Gregory Madej, a Polish foreign national, U.S. District Judge David Coar ruled in the summer of 2002 that a decision of the International Court of Justice “conclusively determines that Article 36 of the Vienna Convention creates individual enforceable rights” (United States ex rel. Gregory Madej v. James M. Schomig, 2002). Madej claimed that Chicago police and Cook County prosecutors had violated his right to consular assistance, and Judge Coar noted in his ruling that the defendant’s rights under the Vienna Convention “were clearly violated.” Madej still sits in an Illinois jail.
Global Trends and the Currents of U.S. Capital Punishment
Amnesty International-Italy has a tradition of casting golden floodlights on the Coliseum in Rome on the night following a death sentence commutation somewhere in the world. On Saturday, February 3, 2003, this lighting took on a particularly intense meaning, as 167 condemned inmates on death row in Illinois had their sentences commuted to life by Governor George Ryan, who was to leave office the following Monday. Marco Bertotto, spokesman for Amnesty International in Italy, commented that Ryan’s move was one of the most important gestures of the preceding 25 years in the history of the death penalty in the United States. Citing the “arbitrary and capricious, and therefore immoral” elements of capital punishment in Illinois, Ryan took phone calls from several world leaders, among them Mexican President Vicente Fox, who expressed his “profound appreciation for the historic decision,” as did Walter Schwimmer, secretary-general of the 44-nation Council of Europe, who was quoted as saying, “I sincerely hope that this is a step forward to the abolition of the death penalty in the whole of the United States” (“Opponents of Death Penalty,” 2003). Ryan suspended executions in Illinois after journalism students at Northwestern University uncovered facts that exonerated 13 Illinois death row inmates. The discovery of these wrongful convictions led to the establishment of the Illinois State Commission on the Death Penalty, which subsequently issued a report in which it stated specific concerns and recommended that the state should cease executions.
The United States in the Eyes of other Western Nations
Political leaders outside the United States have reason to congratulate Governor Ryan, but many also seem impatient, and in some cases distraught, concerning the lack of flexibility the United States has shown on the issue of limiting or abolishing executions. This seems justified when one recognizes that the United States has long been the exception to progressive movements regarding punishment around the world. Over the past two centuries, throughout the world, there has been a significant decrease in the number of offenses that are punishable by death. From 1700 to 1772, Great Britain had five classes (with dozens of offenses in each class) of death-eligible crimes, which led to 1,242 hangings. The United Kingdom abolished executions in 1965 (Linebaugh, 1992). France, which used the guillotine liberally in the 18th and 19th centuries, carried out its last execution in 1977 (Spierenburg, 1998). The British colonies had similar sentencing patterns, and the early United States resembled its Anglophile legal heritage, adding a number of offenses in response to the demands of slavery (known in total as the Black Codes) and the Reconstruction era.
However, the United States has not followed the same progressive pattern of reduction in the number of death-eligible crimes as have European Union nations and most of its Latin American neighbors (Sherman, 1994). Although death sentences for robbery, cattle rustling, and horse theft long ago became relics of the U.S. frontier, executions for rape were eliminated rather late in the United States compared with other nations. This change came in 1977 with the case of Coker v. Georgia, and it was accomplished largely on the premise that the death sentence for rape was a remnant of white supremacy; it was only tacitly acknowledged that death constituted disproportionate punishment for the crime of rape.
In the face of the growing movement to abolish executions through international organizations, the United States has hardened its legal structure toward those convicted of homicide. Although support for the death penalty has increased solidly in the United States, from a low of 38% in 1965 to about 67% of those polled in 2001, increasing numbers of U.S. citizens have come to the conclusion that the death penalty does not deter further murders (see Tables 24.1 and 24.2).
Since 1976, all U.S. states that have the death penalty, as well as the federal government, offer lethal injection as a method of execution, whether as one alternative or the only method (U.S. Bureau of Justice Statistics, 2001). Many critics of capital punishment cite this as a broad effort to sanitize state killing and avoid well-publicized errors such as those that have occurred with the use of other methods of execution, such as lethal gas and electrocution (Radelet, 2003). It has not gone unnoticed that the United States has progressively revealed other elements of its justice process through the televising of arrest and court processes, but has resisted similar exposure of executions.
Table 24.1 Approval/Disapproval of Capital Punishment in the United States, 1965-2001 (in percentages)
|Year of Poll||Believe in It||Opposed to It||Not Sure|
SOURCE: Data from Harris Poll (2001).
NOTE: Respondents were asked, “Do you believe in capital punishment, that is, the death penalty, or are you opposed to it?”
|Table 24.2 U.S. Public Opinion of Executions as Deterrence, 1976-2001 (in percentages)|
|Year of Poll||Deters Others||Not Much Effect||Not Sure|
SOURCE: Data from Harris Poll (2001).
NOTE: Respondents were asked, “Do you feel that executing people who commit murder deters others from committing murder, or do you think such executions don’t have much effect?”
The United States has also expanded the number of death-eligible offenses. The Violent Crime Control and Law Enforcement Act of 1994 (known as the Omnibus Crime Bill of 1994) and the Anti-Terrorism and Effective Death Penalty Act of 1996 together added 60 offenses to those now punishable by death. These include terrorist homicide; murder of a federal law enforcement, judicial, or corrections official; drug trafficking associated with a murder; “drive-by” homicide with a handgun; and carjacking that results in death. The bills also provided for capital punishment in cases of significant drug-trafficking offenses even when there are no related homicides.
Probably most troubling to legal progressives throughout the world is the systematic rollback of constitutional provisions taking place in the United States, such as the removal of basic constitutional due process and the placement of strict limitations on habeas corpus appeals in the federal courts. Citing the need for more discernible symbolic artifices, advocates of the death penalty in the United States have argued that execution is ineffective as a deterrent to other crime in part because of the extended interval between conviction and the carrying out of a death sentence. The Omnibus Crime Bill death penalty provisions target habeas corpus as the problem and mandate that convicted defendants be prevented from demanding independent federal court review on claims of wrongful conviction or sentencing. For example, the bill limits a condemned prisoner to a solitary federal appeal, which must be filed within 6 months after the expiration of the state appellate process. In addition, it prohibits federal magistrates from granting appeals without a finding of unreasonable state court action. It is possible for a given defendant to be executed without realizing one appeal in the federal judiciary. The scope and content of this legislation runs counter to the trend in every other progressive nation. The net effect has been to open a larger cultural, social, and legal gulf between the United States and its Western partners.
The Status of the Vatican in the Global Death Penalty Debate
Vatican City and its head, the pope, play a pivotal role in the international debate on capital punishment. Pope John Paul II has had considerable influence in the area of human rights since he assumed the leadership of the Holy See in 1978, both as the religious leader of 62 million American Roman Catholics and 1.2 billion Roman Catholics worldwide and as the head of state of a sovereign nation. This dual role has allowed the Catholic Church to work in opposition to the death penalty on nearly all levels, from community organization efforts and execution vigils to transnational diplomatic initiatives, supplemented by high-profile, religious-based, moral campaigns advocating a right to life, in forms such as national councils of bishops, papal encyclicals, and personal appeals and visits by the pope. At its very heart, the papacy founds its teachings and policies on the Gospels and on the revelations of the saints. In his encyclical letter of 2002, Pope John Paul II stated:
As Saint Ambrose writes: “Once the crime is admitted at the very inception of this sinful act of parricide, then the divine law of God’s mercy should be immediately extended. If punishment is forthwith inflicted on the accused, then men in the exercise of justice would in no way observe patience and moderation, but would straightaway condemn the defendant to punishment…. God drove Cain out of his presence and sent him into exile far away from his native land, so that he passed from a life of human kindness to one that was more akin to the rude existence of a wild beast. God, who preferred the correction rather than the death of a sinner, did not desire that a homicide be punished by the exaction of another act of homicide.”
The weight of papal condemnations of capital punishment is clear if one looks carefully at a world map. In almost every country where Roman Catholicism is the primary religious choice of the populace, or even that of a significant minority, execution has been legally or virtually abolished. European and Latin American nations have nearly eradicated the incidence of state-sponsored death, in large part because of consistent, dogged resistance in the form of both pastoral and lay influences on nearly every social level. For his own part, the pope has continued to travel to countries in Latin America and the European Union with an unrelenting pro-life message, which includes denunciation of abortion along with capital punishment. In those areas where the Vatican’s influence is felt the least (e.g., the Islamic world, South Asia, and East Asia), nations have stubbornly adhered to policies of capital punishment. However, in Latin America and Europe, the underlying foundation of moral persuasion provided by Vatican efforts has prepared the political ground for Latin American courts and officials of the European Union to carry forth difficult programs of legal reform, moratorium, and abolition. Visits by the pope can be very powerful, putting pressure on previously comfortable politicians to use their powers of commutation, as was seen in the United States in 1999, when John Paul II traveled to St. Louis, Missouri, and pleaded for the life of a man condemned to die for two murders in that state. The Democratic governor, Mel Carnahan, a Protestant and supporter of executions, relented and commuted the death sentence of Darrell Mease to life, despite strong opposition from his own administration, the public, and police authorities (“Pope Pleads,” 1999). It has become abundantly clear that proximity to the pontiff is a powerful force on politicians.
Capital Punishment on the Future Global Landscape
Samuel Huntington, in his well-known The Clash of Civilizations and the Remaking of World Order (1996), states that the “Western belief in the universality of culture suffers from three problems: it is false; it is immoral; and it is dangerous” (p. 2). Huntington, recognizing the decline of the world of the Cold War, which was divided between liberalism and socialism, cites “culture” and “civilization” as the future divisions across the globe, specifically along “fault lines” roughly defined by ethnic culture and religion. In the process, he draws a gloomy picture, asserting that the remedies for serious stress on international stability will be avoidance of “fault line wars,” mediation of conflicts by “core states” in areas of intercivilizational strife, and, most important, efforts by all peoples to find and expand values, institutions, and practices held in common. Huntington argues that “civilizational stability” is the strongest foundation for world peace and that intercivilizational exchange is the most effective policy for achieving it. Although Huntington’s view has been criticized as a bunker mentality and much of his book cites the rise of identity politics as negative and irrational (Elliot, 1996), there is positive element in its doomsaying. A stable and peaceful world will be one in which nations can reconcile differences in beliefs and emotions in a forum that is committed to the maintenance of a multipolar—that is, multicivilizational— world and not one of paternalist assumptions pointing to an assumed universality of values and institutions.
The use of capital punishment is one of the issues that separate the United States from other civilized countries, such as France and every other country in the European Union. Felix Rohatyn (2001), who served as the U.S. ambassador to France from 1997 to 2000, has sketched out what he calls “America’s deadly image,” saying that while the French are thankful for U.S. aid in the past, they very much view the United States as morally deficient. This idea dovetails with the impression that Robert Kagan (2003) draws in his study of post-World War II Europe and the United States, in which he says that Europe has sought peace and stability through the rule of law and diplomacy, frowning on the use of force and power politics, particularly that brand increasingly popular in the United States following the Vietnam War. It was no surprise to the United States when officials of the European Union, considering a draft agreement between members and the United States on extradition, gave in to French objections to language that would obligate a member state’s cooperation in extraditing an individual vulnerable to capital punishment (“EU/US Extradition Agreement,” 2003). The results are divergent views on political strategy and corroding cohesion between the United States and its traditional allies. The United States may find that long-term fallout from ignoring a world court is disastrous for security concerns, particularly when the country needs help abroad (Miller, 2003a).
It is apparent that a majority of U.S. citizens perceive capital punishment to be a necessary symbolic, if not instrumental, tool for criminal justice; but, as Edelman (1964) says, “political acts mean different things to different people” (p. 12). The issue of capital punishment considered across international borders creates significant intellectual inertia. Although nearly every national poll conducted in Europe, the Western Hemisphere, and Asia shows that populations of those countries overwhelmingly support the use of executions at home, noteworthy hesitation and opposition emerge when people consider the idea of citizens of their own countries suffering the ultimate penalty applied by another nation-state. In addition, a growing number of governments, many of which share basic cultural, geopolitical, and diplomatic strategies with the United States, oppose the use of capital punishment and view it as an issue that must be put to rest before existing relations can be strengthened and productive diplomacy achieved. As the globe grows ever smaller, reform and reassessment of capital punishment in the United States will be not only advisable but critical, particularly in a world such as the one that Huntington (1996) describes.