International Reaction to Death Penalty Practices in the United States
By Dorean Marguerite Koenig
Execution of prisoners through governmental action violates a human right recognized throughout Europe. Countries cannot become members of either the Council of Europe or the European Union unless they agree to eliminate capital punishment. This standard is recognized as strengthening the rule of law and stabilizing contemporary democracies. Agents of governmental institutions should not have the power to kill prisoners, a tenet tacitly agreed to by the United States elsewhere, but not found relevant in domestic policies. Over half of the countries of the world have abolished the death penalty in law or practice. Amnesty International states that about two countries a year are eliminating this penalty. It found in 1998 that the United States "has the highest known death-row population on earth."
The Council of EuropeThe United States hosted the meetings that led to the Dayton Peace Agreement in 1995. The final agreement required that the new republic of Bosnia and Herzegovina abolish capital punishment and make that a part of its fundamental law, including ratifying Protocol No. 6 to the European Convention, "Concerning the Abolition of the Death Penalty." Protocol No. 6 states that "[t]he death penalty shall be abolished. No one shall be condemned to such penalty or executed." Canadian Scholar William Schabas, professor of human rights law at the National University of Ireland-Galway and director of the Irish Centre for Human Rights, has commented on the incongruity of the U.S. position:
In the Dayton Peace Agreement, signed at Paris on 14 December l995, the new State of Bosnia and Herzegovina is held to the highest standard of compliance with contemporary human rights norms. This includes ratification of Protocol No. 6 and the incorporation of its terms as the fundamental law of the new republic. The irony is that the agreement was negotiated in a State that still retains the death penalty, Ohio.
The Council of Europe, now with forty member states, prioritized abolition of the death penalty in 1997, calling for universal abolition, preliminarily stating that it believes the death penalty can no longer be regarded as an acceptable form of punishment from a human rights perspective.
The European UnionAmericans are familiar with the Euro, but few are aware of the human rights and economic aspects found in the European Union's (EU) Treaty of Amsterdam, which was entered into force on May 1, 1999. That treaty effectively abolishes the death penalty in all EU states. In 1999, the EU declared that respect for human rights and fundamental freedoms will be a condition for admission. A serious and persistent breach of these rights may lead to a suspension of rights of a member state.
To gain entrance into the union, Turkey has placed a moratorium on executions and, more recently, agreed to present to the EU a program abolishing the death penalty (except in cases of high treason). The EU is planning an expansion to encompass the Central and Eastern European states, creating a vast economic, political, and human rights union in which all member states have abolished the death penalty. The EU's president, who is from Sweden, has begun pressing for worldwide abolition.
Other OrganizationsUnited Nations (UN) Secretary General Kofi Annan has endorsed the call for a moratorium on executions. The UN General Assembly has adopted the Second Optional Protocol to the International Covenant on Civil and Political Rights, acknowledging a worldwide effort to abolish capital punishment for all purposes and obligating each state party to take all necessary measures to abolish the death penalty within its jurisdiction.
The International Criminal Court Treaty, which the United States has signed, excludes the death penalty for all crimes within its jurisdiction. The death penalty is also excluded as a punishment in the two tribunals established by UN Security Council resolution, that is, for crimes committed in the former Yugoslavia and in Rwanda.
In 1990, the General Assembly of the Organization of American States adopted the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, which obligates state parties to it not to apply the death penalty in their territory or to any person subject to their jurisdiction, except for certain narrow exceptions, i.e., wartime or very serious crimes of a military nature.
The Vienna ConventionThe Vienna Convention on Consular Relations is a multilateral treaty with 163 countries as parties, including the United States. Article 36 of the treaty, incorporated at U.S. insistence, says that authorities must inform a foreigner who is detained of his or her right to contact their consulate for assistance in preparing a defense. If a U.S. citizen is arrested in Turkey, for example, he or she must be informed of the right to call the U.S. Consulate there. The convention thus recognizes the adverse position of a foreigner away from his or her home country.
Ironically, police in the United States are not trained in this treaty duty of notification. As a result, police rarely comply with this obligation. Most foreigners on death row in the United States are citizens of abolitionist countries, making them vulnerable to death penalty policies since the death penalty does not exist in their homeland. Most of them were not notified of their right to consular assistance at the time of their arrest.
In June 2001, the International Court of Justice ruled 14-1 that the United States, which did not deny the violation, breached its treaty obligations to Germany by executing Walter LaGrand, a German national who was not notified of his treaty rights until it was too late to provide effective assistance. Many of the foreigners sentenced to death are Mexican nationals. Mexico has actively sought to challenge convictions and death sentences of its citizens for violations of the Vienna Convention. They maintain that the result would have been different had their nationals had the help of competent counsel early in the process.
The Inter-American Court of Human Rights has issued an advisory opinion that calls for strict compliance with the right of consular access. This court has also determined that a failure to inform a detained foreign national of that right constitutes a due process violation. Consistent with due process, a death sentence in such a case cannot stand.
However, the U.S. Supreme Court has not recognized this failure as a reason to reverse a death sentence, and foreign nationals have been executed despite the lack of notification and the absence of adequate legal support.
International Reaction to U.S. PracticesWithout doubt, death penalty practices in the United States have damaged its international standing. The Edinburgh Evening News stated, in commenting on the execution of Gary Graham, who was retarded, "[T]he United States . . . reeks of primitive, misguided vengeance and barbarism." German Justice Minister Herta Daubler-Gmelin commented, "The Americans do not hesitate, proud as they are of their democratic tradition, to reproach other countries over human rights violations."
As Henry Kissinger recently commented, "Traditional channels of U.S.-European cooperation are drying up with respect to economic matters." This is exacerbated by the intense negative reaction by Europeans and others to executions.
In a letter to former President Clinton, the French president of the European Union urged authorities to declare a moratorium on all federal executions. Felix Rohatyn, the U.S. ambassador to France, commented in May 2000:
You hear opposition to the death penalty in Bordeaux, you hear it in Toulouse, everywhere. When I speak to audiences, the question always comes up. And I don't believe this is just a French phenomenon. I recently spoke to John Kornblum, our ambassador to Germany, and he told me the death penalty was the single most recurring question there.
Refusals of Extradition Requests to the United StatesPolice and prosecutors cooperate with one another across their countries' borders through international extradition, a process in which one country surrenders to the requesting state a fugitive from the requesting country found within the surrendering country. Each country has a mutual interest in law enforcement. However, when extradition for a capital crime is sought by the United States, many countries are resisting because they believe that U.S. death penalty practices, above and beyond the death penalty itself, constitute serious human rights violations. The adequacy of trial processes, methods of execution, and conditions on death row are considered human rights matters sufficient to refuse extradition.
Many European countries are among those taking the matter of extradition seriously and denying extradition to the United States unless assurances against seeking a death penalty are given. Even America's closest allies are indicating serious concern about U.S. death penalty practices. On February 15, 2001, the Canadian Supreme Court issued a unanimous decision holding that it would no longer permit extraditions to the United States in cases in which capital punishment was possible, thus disallowing extradition even where it is unclear whether the death penalty would be sought. In so doing, the Canadian Supreme Court was primarily concerned about the fairness with which capital punishment is being implemented in the United States. The Court quoted at length from an ABA report, noting that "[c]oncerns in the United States have been raised by such authoritative bodies as the American Bar Association which in 1997 recommended a moratorium on the death penalty throughout the United States"; and the Court quoted from an ABA press release:
The adequacy of legal representation of those charged with capital crimes is a major concern. Many death penalty states have no working public defender systems, and many simply assign lawyers at random from a general list. The defendant's life ends up entrusted to an often underqualified and overburdened lawyer who may have no experience with criminal law at all, let alone with death penalty cases. The U.S. Supreme Court and the Congress have dramatically restricted the ability of our federal courts to review petitions of inmates who claim their state death sentences were imposed in violation of the Constitution or federal law. Studies show racial bias and poverty continue to play too great a role in determining who is sentenced to death.
The Canadian Supreme Court's decision goes on to discuss Governor Ryan's imposition of a moratorium in Illinois, major concerns about innocent people being sentenced to death, the Nebraska legislature's vote for a moratorium, and the New Hampshire legislature's vote for abolition (both of which were vetoed). The U.S. Department of Justice study issued on September 12, 2000, raising concerns about racial and geographic disparities in the imposition of the federal death penalty, and the "recent Columbia University study by Professor James Liebman and others that concludes that two out of three death penalty sentences in the United States were reversed on appeal" are also discussed in the Canadian opinion.
Capital Punishment in the United StatesIn 1989, while a visiting Fulbright scholar in Finland, I went to Moscow to meet with Alexander N. Yakovlev, a leading Soviet criminologist who was then the head of the Institute for State and Law of the U.S.S.R., to discuss his plan for the modernization of the Soviet criminal code, which would have curtailed the death penalty in the Soviet Union. Mr. Yakovlev had found it difficult to effectuate these changes because the peoples and cultures in the Soviet Union were accustomed to executions and demanded that they continue.
Today, in contrast, Russia and the breakaway states of the old Soviet Union are issuing moratoriums against the imposition of the death penalty and moving toward abolishing it, recognizing that they will be excluded from the benefits of membership in modern economic unions unless they recognize abolition of capital punishment as an emerging human right. Most U.S. citizens, like citizens of the old Soviet Union, continue to believe that executing people is a necessary solution to crime. Nonetheless, citizens who live in the EU or other industrialized societies may view the death penalty in another light completely. Such a person, well-informed about the state of affairs in America, might sum up his or her interpretation of U.S. practices as follows:
"The majority of the people are in favor of the death penalty, and it has been applied since the country's beginnings. The country has a history of slavery. Descendants of the slaves, a minority race, now have civil and political rights, but a disproportionate number are imprisoned.
"The decision on whom to charge capitally is made by the prosecutor, and almost all of the prosecutors belong to the majority race. Studies show that where the minority defendant is charged with killing a member of the majority race, prosecutors bring the death penalty more often. Some prosecutors run for office by promising to carry out the death penalty. "Even more questionable, U.S. citizens do not generally protest against the execution of mentally ill persons on death row. Mental illness is feared in the culture, a fear encouraged by popular films, and the mentally ill are generally not well cared for. Programs for the mentally ill are generally underfunded and inadequate, and the majority of the mental hospitals have been closed, so that the mentally ill are now found in prisons and on death rows. "Although there is an acquittal defense called the 'insanity defense,' its provisions are much higher than serious mental illness, and jurors, being afraid of the mentally ill, rarely return this defense, as it requires an acquittal of the defendant. Also, the insanity standards differ from state to state, with the result that what would qualify a person for acquittal based on insanity in one state qualifies a person for the death penalty in another state. "The prosecutor is allowed to charge juveniles-those under eighteen at the time of the crime-with the death penalty, a practice forbidden in other countries. In one case, the only juvenile offender was sentenced to death while adults who had committed the same acts were not sentenced to death.
"Similarly, the prosecutor is allowed to charge mentally retarded persons in most states. One mentally deficient man, the night he was being executed, put aside the dessert included with his last meal, saving it for the morning. (We should remember that it was the execution of a mentally retarded man in the 1950s that led to the abolishment of capital punishment in the United Kingdom.)
"The government follows a federal system with a separate national court and separate courts in each state. These courts have intricate trial procedures and ornate appellate systems that often do not reach substantive deficiencies in the application of death sentences because of elaborate distinctions between the two tiers of government, and because of statutory limitations.
"Laws are mostly codified. The death penalty was greatly affected by a codification initiative in the 1950s that, in confusing language, set up a series of factors to be considered in sentencing a person to death. Studies have shown that jurors can easily reverse the meaning of such instructions. They could easily lead a juror to believe that a mitigating factor is a reason to impose a death sentence, particularly when the offender is seriously mentally ill. "Lay jurors are used to safeguard against governmental abuses by reflecting a cross-section of the community. But, in death cases, courts must exclude all jurors who are opposed to the death penalty, unless the excluded juror states that he could impose the death penalty in the case before the court.
"Citizens believe that there are many effective safeguards before a person can be put to death but do not recognize that the safeguards routinely become unavailable because of technical limitations that prevent the courts from considering the merits of the case. Bitter fights have arisen over whether poorly understood 'procedural default' rules prevent a death row inmate from having his appeal heard in the federal courts, even though some death row inmates must bring their own appeals, whereas the prosecution has a trained and experienced counsel system with salaried staff.
"At one time, Congress provided centers to assist death row inmates in their appeals to the federal courts. However, when competent counsel was provided, and secured many reversals for serious constitutional errors, the centers were defunded.
"At the trial level, the government's prosecution is likewise represented by salaried, experienced counsel, whereas oftentimes the defendant is represented by poorly paid and untrained legal counsel. Incompetent defense lawyers in some states have slept through trials, raising no defenses. Other counsel are rewarded for not investigating or interviewing witnesses by being assigned more cases, especially if all of the people they have 'represented' have been put on death row. There is an extensive lack of competent, well-trained defense lawyers, so that they are mainly available for wealthy defendants.
"Most judges are elected, and the selection process is highly political. Since the death penalty is so popular, judges usually cannot be elected unless they advocate that they will vigorously carry out the death penalty. Judges have been defeated for reelection or for selection to higher office when they have not been vigorous enough in imposing the death penalty. One African American judge was rejected for a federal judgeship on the grounds that he had affirmed the death penalty in only 70 percent of his cases.
"Most persons accused of crimes plead guilty. The death penalty is sometimes used to help persuade a person to plead guilty in return for a life sentence. A prosecutor may make a deal with the more culpable offender, i.e., the person who actually shot the victim(s), if that person is willing to plead guilty to a life sentence and testify against someone who helped him commit the crime. In that case, the person who did not shoot anyone but refused a chance at life imprisonment will be the one executed. In one case, the prosecutor had the confession of a mentally retarded person and allowed the co-defendant with ordinary intelligence to testify against the retarded person and obtain a life sentence in exchange. The retarded person was executed.
"Lastly, an uncommon number of innocent persons have been discovered on death rows by 'innocence projects,' which are organizations working outside of government and largely without governmental support. These organizations are concerned about deficits in the U.S. criminal justice system."
ConclusionInternational criticism of the United States by her closest allies could quickly become an embarrassment. The United States already suffers a loss of prestige as a result of racial discrimination, which is documented in UN reports. Loss of prestige among allies and other countries because of application of the death penalty to vulnerable persons, as well as other deficiencies in death penalty practices, could well affect the United States in its world leadership, in foreign affairs, and in its economic relationships.
Dorean Marguerite Koenig is a professor of law at the Thomas M. Cooley Law School and co-chair, with Ronald J. Tabak, of the Death Penalty Committee of the American Bar Association's Section of Individual Rights and Responsibilities. She is also secretary and board member of the American Section of the International Association of Penal Law and a commissioner on the Innocence Project of the Thomas Cooley Law School.
