Toward “Re-Consensus”:

American and European Legal Trends in Capital Punishment

Christopher J. Enge

November 28, 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, abolished the death penalty in all cases.  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.  However, that disagreement did not always exist, and the trend in the United States is to limit the application of the death penalty, moving us back toward common ground with the Europeans.

        A. Post War Consensus

        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 most cases.  CITE

        Around 1970, the United States was in a similar position.  A majority opposed the death penalty (GET NUMBERS).  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.

        B. Divergence in the 1970s

        U.S. public opinion, however, did a U-turn.  By 1975, ___% of Americans supported the death penalty.  The courts followed suit.  The Supreme Court reinstated the death penalty, requiring certain procedural safeguards.  Gregg v. Georgia, CITE.  State legislatures rapidly amended their laws to comply with the Supreme Court rulings to allow for capital punishment.  CITE. 

The popularity of the death penalty impacted the highest level of politics.  In 1988, Democratic presidential candidate Michael Dukakis sealed his fate by robotically defending his opposition to the death penalty, even in the case of the rape and murder of his wife.  CITE.  By the 1990s, even a Democrat president such as Bill Clinton touted his record of strict enforcement of the death penalty.  CITE.  In 2000, George Bush ran for president as a champion executioner.  CITE.

In contrast, Western Europe moved to nearly complete abolition in the same time period.  First, the countries that would become the European Union required that applicant countries abolish the death penalty in all cases except for time of national emergency.  CITE.  Later, the European Union required for admission total abolition of the death penalty in all cases.  CITE.  Even pro death penalty Eastern European countries have abolished the death penalty as they seek membership in the rich country club.  CITE. 

A recent example illustrates the difference.  On November ___, the court in Iraq sentenced Saddam Hussein to death for murder and crimes against humanity.  CITE.  In this first trial, the court found Saddam guilty of massacring an entire village of Shiite Iraqis in retaliation for a failed attempt on his life.  CITE.  The U.S. praised the verdict and sentence, declaring justice to be done.  CITE.  In contrast, European countries condemned the sentence and urged the Iraqis not to execute Saddam.  CITE.  European opposition to the death penalty does indeed appear to be absolute.

II.  U.S. Public Opinion Swings Back the Other Way

        By the late 90s, however, U.S. public opinion was shifting.  Rather than being overwhelmed with a new sense of general moral outrage, public opinion shifted due to concerns in particular applications of the death penalty.  CITE. 

        A.  Today’s Death Penalty Debate

Currently, 38 of 50 states allow the death penalty.  However, that statistic misleads because since Gregg, only __ states have actually executed anyone.  CITE.  And of those, only four 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.  CITE.  Most accurately, 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 mostly concentrated in the northeast.  CITE.  In contrast, the 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.  CITE

        B.  The Supreme Court Whittles at the Edges

Knowing the hopelessness of urging total abolition, defense attorneys have focused their arguments 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.  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.  The court pointed to international norms, where virtually every country in the world has no death penalty for minors.

        C.  Attacks on the Certainty of Court Judgments

        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.

        For example, the Innocence Project has 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.  Death penalty opponents have gained much ground by abandoning absolutist moral arguments, and focusing on the potential execution of the innocent.

Similar attacks on the death penalty point 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 to the likelihood of a black defendant getting the death penalty greatly exceeds that for a white defendant.  GET STATS, CITE.  The odds get even worse when one accounts for the race of the victim.  CITE.  This line of attack seems to have more force politically than in court, given the high bar the Supreme Court has set for proving racism in any particular case.

III.  What to Expect

        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.

9:06-10:06         First draft

9:45-10:39         Edits