Toward Consensus:

American and European Legal Trends in Capital Punishment

Christopher J. Enge

October 25, 2006©

 

 

I. Disagreement Among the Western Democracies

        Americans and Europeans, though they share a love for democracy and human rights, disagree sharply on the death penalty.  The European Union, as well as most other European nations, have abolished the death penalty in all cases.  CITE.  Generally speaking, there is no substantial political movement to reinstate the death penalty.  CITE.  In contrast, capital punishment enjoys broad based support in the United States, with the vast majority of states and the federal government allowing for capital punishment.  CITE.

        Up until the end of World War II, democratic European and American death penalty jurisprudence followed similar paths.  At that time, on both sides of the Atlantic, the death penalty was available to punish the most severe crimes.  After World War II, however, European governments moved swiftly toward abolition.  CITE.  By 1970, most European governments had abolished the death penalty in all cases.

        Similarly, by 1970 most of the United States was in a similar position.  A majority opposed the death penalty (GET NUMBERS).  CITE.  In addition, states were putting fewer and fewer people to death.  CITE.  In 1972, the U.S. Supreme Court seemingly struck down the death penalty as cruel and unusual punishment, perhaps forever.  Furman v. Georgia, CITE.

        By the mid 70s, however, U.S. public opinion, followed swiftly by the courts, did a U-turn.  The Supreme Court reinstated the death penalty, provided trial courts observed certain procedural safeguards.  Gregg v. Georgia, CITE.  States rapidly amended their laws to comply with the Supreme Court rulings to allow for capital punishment.  CITE.  Public opinion dramatically swung in favor of the death penalty.  CITE.  The trend culminated with even Democrat presidents such as Bill Clinton touting their records of strict enforcement of the death penalty, and Texan candidates such as George W. Bush running for president as a world champion executioner.  CITE.

        By the late 90s, however, U.S. public opinion began to shift back the other direction.  Rather than being overwhelmed with a new sense of general moral outrage, public opinion shifted due to concerns over possibly innocent men going to their deaths and possible racism in application of the death penalty.  CITE.  Rather than attacking the death penalty concept as a whole, defense lawyers attacked the application of the death penalty to the mentally retarded and juveniles.  CITE. 

        Rather than going to the European extreme of total abolition, expect to see general erosion around the edges of the death penalty in the coming years.  A consensus seems to be forming to limit the death penalty only to the most extreme cases.  The impact of the most powerful current objections is blunted if the death penalty is limited to only the most heinous crimes, where guilt is certain, and the defendant displays a truly knowing, mature, and malevolent mental state.

II.  Current Status of the Death Penalty in the U.S.

        A.  Mixed Bag

        Each state is free to choose whether or not it will have the death penalty.  Currently, 38 of 50 states allow for the death penalty.  However, that statistic misleads because since reinstatement of the death penalty under Gregg, only __ states have actually executed anyone.  CITE.  And of those, only ___ states have carried out ___% of the executions.  CITE.  And of that tiny number, Texas is by far the leader.  California embodies the contradiction, having sent ___ people to death row since Gregg, but having carried out only ___ executions in that time.  It may be more accurate to say that the U.S. has almost abolished the death penalty in practice except for the most extreme cases, except in Texas. 

Michigan was the first of 12 states to abolish the death penalty in all cases.  CITE.  The other 11 abolitionist states are in the north, mostly concentrated in the northeast.  CITE.  In contrast, the handful of states that actually have frequent executions are concentrated in the south.

        The federal government also allows for the death penalty in cases of murder or treason.  CITE.  Since World War II, however, the federal government has only carried out three executions.  In 195_, the federal government put the Rosenburg’s to death for selling the secrets of the hydrogen bomb to the Soviet Union.  CITE.  In 199_, the federal government executed Timothy McVeigh for the murder of ___ people in the Oklahoma City federal building bombing.

        B.  Supreme Court Attacks on the Death Penalty

        Knowing that getting the Supreme Court to shoot down the death penalty altogether is likely impossible, defense attorneys have focused their argument on the most egregious applications.  The Supreme Court has accepted defense arguments limiting the death penalty in situations where uncertainty existed as to the defendants’ ability to form the requisite criminal mental state.

        In  _____, the Supreme Court ruled it unconstitutional to execute a mentally retarded defendant.  CITE.  In that case, the defendant was only able to GET FACTS.  The court held that given that limited ability to reason, the state could not in good conscience put him to death.

        Similarly, in ____, the Supreme Court adopted an absolute prohibition against the death penalty for juveniles.  CITE.  Although the defendant calculated that he would not face the death penalty because he was too young, kidnapped an old lady and through her off a bridge to her death, the court held as a matter of law that no one under the age of 18 could be mature enough to face the death penalty for such horrific conduct.  The court pointed to international norms, where virtually every country in the world has no death penalty for minors.

        Death penalty opponents have also gained ground by attacking the certainty of convictions.  This is a particularly effective tactic, because no one wants to execute the innocent.  As Jerome Frank and the other Legal Realists pointed out, courts are inherently unpredictable and legal outcomes can depend largely on the personality of the judge.  CITE.  Adding that uncertainty to the permanency of death, and many people will question the death penalty as an option.

        Following in the footsteps of Legal Realism, defense teams such as the Innocence Project have proven many convicts to actually have been innocent.  Using DNA evidence, the Innocence Project claims to have exonerated ___ people of murder, and ___ people of rape.  CITE.  Similarly, Governor Ryan of Illinois ordered a moratorium, and then commuted the sentences of all the state’s death row inmates, because he believed he might be responsible for killing an innocent man.

        Another avenue of attack on the death penalty has been pointing to apparent racism in the system.  Although the Supreme Court rejected an attempt to reverse a conviction on these grounds, CITE, death penalty opponents point out that the probability of a black defendant of getting the death penalty are much higher than for a white defendant.  GET STATS, CITE.  The odds get even worse when one accounts for the race of the victim.  CITE

        Taken together, this effort to whittle at the death penalty has proven far more effective than efforts at total abolition.  The number of executions has leveled off and even fallen, and public opinion has shifted from overwhelming support to a far more ambivalent position.

        Worldwide trends, for the most part, diverge sharply from the trend in the United States.  Out of __ recognized countries, ___ have abolished the death penalty in most cases.  CITE.  Of those, a significant number have abolished the death penalty in all cases.  CITE.

        Only ___ countries still actively practice the death penalty.  In addition to the United States, China, Saudi Arabia and Iran continue to hold executions.  CITE.  China, however, leads the world by far, holding ___ executions in the last year data is available.  CITE.  China executes convicts for not only murder and treason, but also relatively minor crimes such as theft.  CITE.  Also, China also executes prisoners for political crimes, actions that would be protected rights in the free world.  CITE.

        In contrast, the Western Europe has abolished the death penalty in all cases.  CITE.

 

 

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