ROUNDTABLE: The Death Penalty Debate
Frank Jarolímek-Proner, Martin Searle, Joshua Marquis

August 7, 2007

Gallows. Photo by El Struthio (CC).

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.

If you would like to comment on these articles, please email mlynn@cceia.org

• 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 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.