The Global Debate on the Death Penalty
by Sandra Babcock
This article is from a special issue of Human Rights,
a journal of the American Bar Association.
"The gap between the United States and the rest of the
world on this issue is growing year by year."
The debate over capital punishment in the United States - be
it in the courts, in state legislatures, or on nationally televised talk shows
- is always fraught with emotion. The themes have changed little over the last
two or three hundred years. Does it deter crime? If not, is it necessary to
satisfy society's desire for retribution against those who commit unspeakably
violent crimes? Is it worth the cost? Are murderers capable of redemption?
Should states take the lives of their own citizens? Are current methods of
execution humane? Is there too great a risk of executing the innocent?
We are not alone in this debate. Others around the world -
judges, legislators, and ordinary citizens - have struggled to reconcile calls
for retribution with evidence that the death penalty does not deter crime. They
have argued about whether the death penalty is a cruel, inhuman, or degrading
treatment or punishment. They have weighed its costs against the need for an
effective police force, schools, and social services for the indigent. National
leaders have engaged in these discussions while facing rising crime rates and
popular support for capital punishment. Yet, while the United States has thus
far rejected appeals to abolish the death penalty or adopt a moratorium, other
nations have - increasingly and seemingly inexorably - decided to do away with
capital punishment.
Indeed, the gap between the United States and the rest of
the world on this issue is growing year by year. In June 2007, Rwanda abolished
the death penalty, becoming the one hundredth country to do so as a legal
matter (although eleven of these countries retain legislation authorizing the
death penalty in exceptional circumstances, most have not executed anyone in
decades). An additional twenty-nine countries are deemed to be abolitionist in
practice since they have either announced their intention to abolish the death
penalty or have refrained from carrying out executions for at least ten years.
As a result, there are now at least 129 nations that are either de facto or de
jure abolitionist.
"There are now at least 129 nations that are either de
facto or de jure abolitionist."
According to Amnesty International, there are sixty-eight
countries that retain the death penalty and carry out executions. But even this
number is misleading. In reality, the vast majority of the world's executions
are carried out by seven nations: China, Iran, Saudi Arabia, the United States,
Pakistan, Yemen, and Vietnam. Many Americans know that the nations comprising
Europe (except Belarus) and South America are abolitionist. But how many are
aware that of the fifty-three nations in Africa only four ( Uganda, Libya,
Somalia, and Sudan) carried out executions in 2005? Even in Asia, where many
nations have long insisted that the death penalty is an appropriate and
necessary sanction, there are signs of change. The Philippines abolished the
death penalty in 2006, and the national bar associations of Malaysia and Japan
have called for a moratorium on executions.
The international trend toward abolition reflects a shift in
the death penalty paradigm. Whereas the death penalty was once viewed as a
matter of domestic penal policy, now it is seen as a human rights issue. There
are now three regional human rights treaties concerning the abolition of the
death penalty: Protocols 6 and 13 to the European Convention on Human Rights,
and the Additional Protocol to the American Convention on Human Rights. The
International Covenant on Civil and Political Rights, ratified by 160 nations
(including the United States), restricts the manner in which the death penalty
may be imposed and promotes abolition. Many human rights organizations and
intergovernmental organizations, such as the European Union, see the death
penalty as one of the most pressing human rights issues of our time and
accordingly have taken an active role in persuading countries to halt
executions.
The Supreme Court's View of International Law
As the international chorus of abolitionist voices swells,
domestic courts and policy makers have engaged in a heated debate over the role
of international law in U.S. death penalty cases. The debate came to a head in
mid-2005 after the Supreme Court held in Roper v. Simmons, 543 U.S.
551 (2005), that the execution of juvenile offenders violated the Eighth
Amendment's prohibition of cruel and unusual punishment. Writing for the
majority, Justice Anthony Kennedy observed that although international law did
not control the Court's analysis, it was both "instructive" and "significant"
in interpreting the contours of the Eighth Amendment.
The Roper Court noted that only seven countries had
executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen,
Nigeria, the Democratic Republic of Congo, and China. But even those countries
had disavowed the practice in recent years, leaving the United States as "the
only country in the world that continues to give official sanction to the
juvenile death penalty." Id. at 575. The Court looked to treaties that
prohibit the execution of juvenile offenders, such as the Convention on the
Rights of the Child, which has been ratified by every country in the world
apart from the United States and Somalia. After examining these sources and
reviewing international practice, the Court concluded that the "overwhelming
weight of international opinion" was opposed to the juvenile death penalty.
"The United States is the only country in the world that
continues to give official sanction to the juvenile death penalty."
The Court's majority opinion prompted a scathing dissent by
Justice Antonin Scalia. After noting that the Court's abortion jurisprudence
was hardly consistent with the more restrictive practices of most foreign
nations, he commented: "I do not believe that approval by ‘other nations and
peoples' should buttress our commitment to American principles any more than .
. . disapproval by ‘other nations and peoples' should weaken that commitment." Id.
at 628. Conservative commentators and legislators likewise attacked the Court's
citation of foreign law.
What many critics of Roper failed to recognize,
however, is that the Court has long looked to the practices of the
international community in evaluating whether a punishment is cruel and
unusual. In Wilkerson v. Utah, 99 U.S. 130 (1879), the Court cited the
practices of other countries in upholding executions by firing squad. And in
its oft-cited opinion in Trop v. Dulles, 356 U.S. 86 (1958), the Court
declared that banishment was a punishment "universally deplored in the
international community of democracies." Since then, the Court has frequently
referred to international law in a series of death penalty cases interpreting
the meaning of the Eighth Amendment.
The Court's attention to international practice in death
penalty cases is undoubtedly related to the flexible and evolving character of
the Court's Eighth Amendment jurisprudence. In Weems v. United States,
217 U.S. 349 (1910), the Court held that the "cruel and unusual punishments"
clause "is not fastened to the obsolete, but may acquire meaning as public
opinion becomes enlightened by a humane justice." Id. at 378. In Trop,
the Court reaffirmed that the clause "must draw its meaning from the
evolving standards of decency that mark the progress of a maturing society."
356 U.S. at 100. The Eighth Amendment involves nothing more, and nothing less,
than evaluating whether a punishment violates human dignity.
Courts around the world have wrestled with these same
questions. When South Africa's Constitutional Court decided that the death
penalty was an unconstitutionally cruel, inhuman, and degrading punishment, it
surveyed the decisions of several foreign courts, including the U.S. Supreme
Court. Like that Court, the South African court did not consider foreign
sources to be controlling. Nevertheless, it observed that "international and
foreign authorities are of value because they analyse [sic] arguments for and
against the death sentence and show how courts of other jurisdictions have
dealt with this vexed issue. For that reason alone they require our attention."
State v. Makwanyane, Constitutional Court of the Republic of South
Africa, 1995, Case No. CCT/3/94, ¶ 34, [1995] 1 LRC 269. The
high courts of India, Lithuania, Albania, the Ukraine, and many others have
likewise cited international precedent in seminal decisions relating to the
administration of the death penalty.
"A majority of
the current justices favors consideration of international law."
In light of this history, the practice of citing
international precedent hardly seems to warrant the storm of controversy
surrounding it. But whether one agrees or disagrees with the Court's approach,
a majority of the current justices favors consideration of international law. In
the next few years, a number of capital cases will once again offer the Court
an opportunity to look beyond U.S. borders and survey international law and the
practices of foreign states.
Execution of Persons Who Did Not Kill
Article 6(2) of the International Covenant on Civil and
Political Rights (ICCPR) provides that the death penalty may only be imposed
for the "most serious crimes." T he United Nations (UN) Human Rights Committee,
which interprets the ICCPR's provisions, has observed that this provision must
be "read restrictively to mean that the death penalty should be a quite
exceptional measure." Human Rights Committee, General Comment 6, Art. 6
(Sixteenth session, 1982) ¶ 7; Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRI\GEN\1\Rev.1 at 6 (1994). In a death penalty case from Zambia, where the
prisoner received a death sentence for participating in an armed robbery, the
committee held that the sentence was not compatible with Article 6(2) because
the petitioner's use of firearms did not cause death or injury to any person.
The UN Safeguards Guaranteeing Protection of the Rights of
Those Facing the Death Penalty, adopted by the UN Economic and Social Council
in 1984, defines " most serious crimes" as "intentional crimes with lethal or
other extremely grave consequences." Referring to those safeguards, the UN
Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions has
concluded that the term "intentional" should be "equated to premeditation and
should be understood as deliberate intention to kill." United Nations, Report
of the Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions,
U.N. Doc. CCPR/C/79/Add.85, 19 Nov. 1997, ¶ 13.
Yet in the United States, several states authorize the death
penalty for persons who are "major participants" in a felony, such as burglary
or robbery, even if they never killed, intended to kill, or even contemplated
that someone would be killed while committing the crime. In California and
Georgia, persons may be sentenced to death for accidental killings during a
felony or attempted felony.
Moreover, Texas, South Carolina, Georgia, Louisiana,
Oklahoma, and North Carolina allow for the imposition of a death sentence in
some cases for the rape of a minor, even if the victim did not die. These laws
will be subject to strong legal challenges in coming years, although this will
not be an easy battle, as demonstrated by the recent Louisiana supreme court
decision upholding a death sentence against an offender who was convicted of
raping a child. Louisiana v. Kennedy, No. 05-KA-1981 ( La. May 22,
2007).
"Several states authorize the death penalty for persons
who are ‘major participants' in a felony, such as burglary or robbery, even if
they never killed, intended to kill, or even contemplated that someone would be
killed while committing the crime."
Available data indicate that prosecutors rarely seek the
death penalty against "non-triggermen," and executions of these persons are few
and far between. These two factors alone indicate that the imposition of the
death penalty on persons who have committed nonlethal crimes may be ripe for
challenge. In the event that the Supreme Court examines the issue, it is highly
likely it will consider international practice. In Enmund v. Florida,
458 U.S. 782 (1982), a case involving a defendant sentenced to death under the
felony-murder rule, the Court noted that international norms were "not
irrelevant" to its analysis, observing that the doctrine of felony murder had
been abolished in England and India, severely restricted in Canada and a number
of other Commonwealth of Nations countries, and was unknown in continental
Europe.
Execution of the Severely Mentally Ill
Although the Supreme Court has held that the Eighth
Amendment prohibits the execution of the mentally incompetent, state and
federal courts have routinely concluded that severely mentally ill prisoners
are sufficiently competent that they may lawfully be executed. Consequently,
dozens of prisoners suffering from schizophrenia, bipolar disorder, and other
incapacitating mental illnesses have been executed in the United States during
the last ten years. In June 2007, however, the Court overturned a decision by
the U.S. Court of Appeals for the Fifth Circuit, holding that the court had
used an overly restrictive definition of incompetence. Panetti v.
Quarterman, 127 S. Ct. 2842 (2007). This decision may encourage state and
federal courts to take greater care in evaluating the mental status of those
facing imminent execution, but it does not prohibit courts from sentencing
severely mentally ill prisoners to death, nor does it guarantee that severely
mentally ill prisoners will not be executed in the future.
"State and federal courts have routinely concluded that
severely mentally ill prisoners are sufficiently competent that they may
lawfully be executed."
In Atkins v. Virginia, 536 U.S. 304 (2002), in
which the Court struck down the execution of the mentally retarded, the Court
cited an amicus curiae brief submitted by the European Union (EU) as evidence
that "within the world community, the imposition of the death penalty for
crimes committed by mentally retarded offenders is overwhelmingly disapproved."
Id. at 316 (citing in n.21 Brief for European Union as Amicus Curiae
at 4). The current Court likely would be open to considering similar amicus
briefs in a future case challenging the execution of the severely mentally ill.
A substantial body of international precedent exists
regarding the execution of the severely mentally ill. The UN Safeguards
Guaranteeing Protection of the Rights of Those Facing the Death Penalty
prohibit imposing the death penalty "on persons who have become insane." In
1989, the UN Economic and Social Council expanded this protection to cover
"persons suffering from . . . extremely limited mental competence, whether at
the stage of sentence or execution." United Nations Economic & Social
Council, Implementation of the Safeguards Guaranteeing Protection of Rights
of those Facing the Death Penalty, E.S.C. Res. 1989/64, U.N. Doc.
E/1989/91 (1989), at 51, ¶ 1(d).The UN Commission on Human Rights has urged
countries not to impose the death penalty on persons suffering from any form of
mental disabilities. And the EU has consistently asserted that executions of
persons suffering from severe mental disorders "are contrary to internationally
recognized human rights norms and neglect the dignity and worth of the human
person." EU Memorandum on the Death Penalty (Feb. 25, 2000), at 4, www.eurunion.org/legislat/deathpenalty/eumemorandum.htm.
Racial and Geographic Disparities
Arbitrariness in capital sentencing was one of the factors
that led the Supreme Court to strike down existing state death penalty laws in Furman
v. Georgia, 408 U.S. 238 (1972). Four years later, in Gregg v. Georgia,
428 U.S. 153 (1976), the Court's decision to uphold the newly revised laws was
based on its determination that the statutes minimized the risk of arbitrary
sentencing by channeling the discretion of capital juries. But thirty years
later, factors such as race and geography continue to lead to great disparities
in capital sentencing. These disparities have led to a different sort of
arbitrariness, one that may not be consistent with international norms.
"A 2006 study confirmed that defendants' skin color and
facial features play a critical role in capital sentencing."
Studies have repeatedly shown that race matters when
determining who is sentenced to death. It has been said that, as a statistical
matter, race is more likely to affect death sentencing than smoking affects the
likelihood of dying from heart disease. In Philadelphia, the odds that an
offender will receive a death sentence are nearly four times higher when the
defendant is black. A 2006 study confirmed that defendants' skin color and
facial features play a critical role in capital sentencing. And over the last
twenty years, social scientists have repeatedly observed that capital
defendants are much more likely to be sentenced to death for homicides
involving white victims.
Enormous geographical disparities arise as well. This
derives, in part, from the lack of uniform standards to guide the discretion of
state prosecutors in seeking the death penalty. Prosecutors are almost always
elected officials, and their support or opposition to the death penalty in a
given case is often influenced by the level of popular support for capital
punishment within a given community. In San Francisco, for example, the local
prosecutor never seeks the death penalty because she is morally opposed to it.
In Tulare County, located in California's conservative Central Valley, the
chief prosecutor is a zealous advocate of capital punishment. As a result, two
persons who commit the same crime, and who are ostensibly prosecuted under the
same penal code, may be subject to two radically different punishments.
Article 6(1) of the ICCPR provides that nations may not
"arbitrarily" take life. The term is not defined in the text of the treaty, nor
has the UN Human Rights Committee had an opportunity to elaborate on its
meaning in the context of an otherwise lawfully imposed capital sentence. In
evaluating "arbitrary arrest and detention," however, that committee concluded
that arbitrariness encompasses elements of inappropriateness, injustice, and
lack of predictability. The Inter-American Commission on Human Rights, a human
rights body of the Organization of American States, has found that geographic
disparities in the application of the death penalty in the United States can
result in a "pattern of legislative arbitrariness" whereby an offender's death
sentence depends not on the crime committed but on the location where it was
committed. In Roach and Pinkerton v. United States, Case 9647, Annual
Report of the IAHCR 1986-87, the Inter-American Commission concluded that such
geographic disparities constituted an arbitrary deprivation of the right to
life and subjected the petitioners to unequal treatment before the law in
contravention of the American Declaration of the Rights and Duties of Man.
These sources are generally considered to be nonbinding. But
that does not mean that they are not persuasive. Five justices of the Supreme
Court - like many judges throughout the world - find it a worthwhile endeavor
to consider international norms in evaluating whether the application of the
death penalty comports with basic human dignity, whether it constitutes cruel
and unusual punishment, and whether it is consistent with contemporary
standards of decency. As the community of nations continues to debate the pros
and cons of capital punishment, the United States should take a seat at the
table, listen, and learn.
Sandra L. Babcock is an associate clinical professor
and clinical director of the Center for International Human Rights at
Northwestern University Law School in Chicago.