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"American Diplomacy and the Death Penalty"--A Commentary by Prof. Harold Hongju Koh

(This essay originally appeared in the October 2003 issue of Foreign Service Journal.)

American Diplomacy and the Death Penalty
By Harold Hongju Koh and Thomas R. Pickering

For a country that aspires to be a world leader in human rights, the death penalty has become our Achilles' heel.

As patriotic Americans, most U.S. diplomats assume that the United States is the world's leader in human rights. But increasingly, one issue divides us from our allies and puts us in bad company: the death penalty. Simply put, no other democratic country with our commitment to universal human rights resorts to the death penalty as frequently as we do. The statistics alone are startling. According to an Amnesty International Report issued in April 2003, 80 percent of all known executions worldwide in 2002 were carried out by just three countries: China, Iran and the United States. The United States has carried out more executions of juvenile offenders since 1989 than any country in the world. Only six countries have admitted to executing juveniles since 1990 -- Iran, Nigeria, Pakistan, Saudi Arabia, Yemen, and the United States. In 1999, the only country, other than the United States, to execute a juvenile offender was Iran.

Most of us are accustomed to thinking that America's human rights practices set the standard for the world. In many respects this remains true. But in our time as State Department officials, we found that our administration of the death penalty increasingly presents a glaring exception to that rule. Many forget that the U.S. Supreme Court actually suspended the death penalty in 1972, on the grounds that its implementation was unconstitutional. But in 1976, the U.S. Supreme Court allowed the states to resume capital punishment, so long as they adopted and followed more rigorous judicial procedures. Since then, the Court has taken a largely hands-off approach to administration of the death penalty by the states, 38 of which currently have death penalty statutes. Far from upholding exacting standards, it has rejected challenges based on well-founded claims of racial and class bias, inadequate legal representation, lack of consular notification, and defendants' mental incapacity.

Yet even while American courts have allowed state executions to proliferate, the rest of the world has moved in the opposite direction. At last count, 111 countries have abolished the death penalty in law or in practice. European regional organizations have made abolition of the death penalty a prerequisite to joining the "new Europe," and a cornerstone of European human rights policy.

The Diplomatic Fallout

Increasingly, this issue has placed America and Europe on a collision course in global diplomacy. During our time in the State Department, both in bilateral meetings with scores of nations and at various multilateral fora, we became aware that the United States' continuing adherence to the death penalty was becoming a growing issue and source of direct approaches to the United States by other nations. For example, important bilateral meetings with our closest allies -- particularly from the European Union, Central and Eastern Europe, and Latin America -- were increasingly consumed with answering demarches challenging the death penalty.

The European Union now regularly criticizes U.S. death penalty practices in diplomatic demarches and sends pointed letters protesting specific executions. In many European capitals, outrage over American capital punishment has triggered street protests and angry public demonstrations. One distinguished former U.S. ambassador, Felix Rohatyn, reported in February 2001 that his consulates in France were frequently besieged by death penalty protesters, and that his embassy had received an anti-death penalty petition signed by 500,000 local citizens. -- protested to bar the possible use of capital punishment against British detainees being held at Guantanamo Bay. For several decades, the European Union countries have refused to extradite criminal defendants to stand trial here -- even suspected terrorists -- without commitments by state prosecutors to forego the death penalty.

The practice has caused allies and adversaries alike to challenge our claim of moral leadership in international human rights, and probably helped contribute to the embarrassing (if temporary) loss in 2001 of America's seat on the U.N. Human Rights Commission. Even more troubling, the practice has provided heavy diplomatic ammunition to countries with far worse human rights records. China, for example, invariably raises America's death penalty when criticized for widespread human rights violations.

During the last administration, several state governors proceeded with executions despite letters from then-Secretary of State Madeleine Albright attesting that proceeding with the execution would do damage to the ongoing conduct of U.S. foreign policy and international relations. After those executions took place, U.S. diplomats and our foreign policy absorbed the fallout in countless ways visible and invisible to the American public. Most recently, President Vicente Fox of Mexico refused to visit President Bush at his Texas ranch, in part, reportedly, because of bilateral friction over Mexican nationals held on U.S. death rows who were not accorded consular notification rights, as specified under the Vienna Convention.

In any number of countries and regions, the death penalty issue is often raised when questions are asked about why foreign governments and publics are increasingly negative about the United States.

Questions at Home

The growing liabilities of the death penalty abroad have been matched by mounting evidence at home that has re-opened the domestic debate on capital punishment. New documentation suggests that, contrary to the Supreme Court's directive, the death penalty is not in fact being administered fairly in the United States. Since 1976, and the advent of DNA testing, at least 100 people who were put on death row have been exonerated. In late 1999, the Center on Wrongful Convictions, a project developed by faculty and students of Northwestern University's law and journalism schools, showed that 13 of the 25 inmates on Illinois' death row were, in fact, innocent. In response to these revelations, then-Governor George Ryan, a Republican, declared a statewide moratorium on executions.

In February 2002, a compelling statistical study titled "A Broken System" was completed by professors at Columbia University (see edu/brokensystem2). In examining more than 4,500 American capital appeals between 1973 and 1995, Prof. James Liebman and his colleagues discovered that "courts found serious, reversible error in nearly seven of every 10 of the thousands of capital sentences that were fully reviewed during the period." One of the most common problems, now acknowledged in speeches even by justices of our Supreme Court, is egregiously incompetent defense lawyers who fail to find -- or do not even look for -- important evidence that the defendant was innocent. The administration of the federal death penalty, resumed in this administration after a hiatus of nearly 40 years, has been equally troubling. Of the 183 defendants for whom U.S. attorneys recommended seeking the death penalty between 1995 and 2000, a startling 74 percent were members of minority groups.

This troubling evidence has led political leaders and commentators across the political spectrum -- including such conservative voices as the Rev. Jerry Falwell and George Will -- to question whether the death penalty continues to serve any purpose. An increasingly active movement has arisen in opposition to the death penalty, even among families of murder victims. State legislators in many areas of the country are backing moratoria on the use of the death penalty. More than 300 municipalities have passed resolutions calling for a moratorium on capital punishment. Sen. Russell Feingold, D-Wis., has introduced bills that would halt executions by the federal government and in all 38 states that have death penalty laws on their books pending review of the death penalty system by an independent, blue ribbon commission.

Ending the Isolation

Last year, for the first time in years, the U.S. Supreme Court signaled its willingness to take decisions to help reduce America's international isolation on this issue. In Atkins v. Virginia, the Court considered whether execution of persons with mental retardation violated the U.S. Constitution's Eighth Amendment prohibition against "cruel and unusual" punishments, interpreted according to the "evolving standards of decency that mark the progress of a maturing society."

Tom Pickering and eight other distinguished former American diplomats whose combined service under Republican and Democratic presidents totaled nearly 200 years -- Morton Abramowitz, Stephen W. Bosworth, Stuart E. Eizenstat, John C. Kornblum, Phyllis E. Oakley, Felix G. Rohatyn, J. Stapleton Roy and Frank G. Wisner -- decided that it was time to speak out. Some of them opposed the death penalty in all cases; some opposed it only in certain circumstances. But represented by Harold Hongju Koh, they submitted a "Friend of the Court" brief in the Atkins case, arguing that executions of mentally retarded inmates create diplomatic friction, pit America against its allies, tarnish America's image as a human rights leader, and harm broader U.S. foreign policy interests (see 22 for excerpts). We were surprised to learn while preparing the brief that the U.S. was quite literally the only country in the world that regularly executed people with mental retardation as a matter of state policy.

In Atkins, the Court struck down the practice of executing persons with mental retardation, noting that, "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." Yet even this simple statement of fact provoked strong dissents from Chief Justice Rehnquist and Justice Scalia, who insisted that "the viewpoints of other countries simply are not relevant" to an assessment of United States constitutional standards. Several months later, a minority of the justices argued, based on the reasoning in Atkins, that, given the "apparent consensus ... in the international community against the execution of a capital sentence imposed on a juvenile offender," the death penalty should also be constitutionally barred for juvenile offenders. Without opinion, a bare majority of the Court continued, however, to reject that claim.

"A Wider Civilization?"

But a harbinger of change may have come this past Supreme Court term. In Lawrence v. Texas, six justices of the Court struck down a Texas law banning consensual sodomy between adults of the same sex, declaring that the Court's infamous 17-year-old decision to the contrary in Bowers v. Hardwick was wrongly decided.

Justice Anthony Kennedy, writing for the Court, declared: "To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected [by the European Court of Human Rights] and elsewhere. Other nations, too, have taken action consistent with an affirmation of the protected right [claimed here] ... The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent."

In Lawrence, the Supreme Court simply acknowledged that we are part of a wider world. Concepts like liberty, equality, privacy, and freedom from torture and cruel and unusual treatment are not American property, but universal concepts. Applied to the death penalty, the Court's reasoning in Lawrence suggests that our courts should also look now to the practices of other nations in determining whether our continuing administration of the death penalty can be reconciled with our constitutional human rights guarantees. To look outside our borders would hardly be novel. After all, international opinion has informed the Court's understandings of the social values of the United States from the first days of its independence.

Indeed, our nation's founding document, the Declaration of Independence, specifically directed us all to pay "a decent respect to the opinions of mankind." Shortly before he retired, the late Justice Harry Blackmun argued that the death penalty should be abolished for the simple reason that the practice of capital punishment "lessens us." By so saying, he meant that capital punishment diminishes America's reputation as a human rights leader and its ability to lead internationally on the basis of moral principle. For a country that aspires to be a world leader on human rights, the death penalty has become our Achilles' heel. As the U.S. Supreme Court has begun to acknowledge, in an increasingly globalized society, the opinions of other nations, and of the world community as a whole, are more relevant than ever. And now, more than ever, we believe, it is time for those who have served this country as diplomats to be heard speaking out about how the rest of the world sees the aberrant practice of governments putting their own citizens to death.

Harold Hongju Koh is Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale University. From 1998 to 2001, he served as assistant secretary of State for Democracy, Human Rights and Labor. He served as counsel of record for nine former U.S. diplomats before the U.S. Supreme Court in Atkins v. Virginia and as counsel of record for former U.N. High Commissioner for Human Rights Mary Robinson and human rights organizations before the Court in Lawrence v. Texas. Prof. Koh recently received the 2003 Wolfgang Friedmann Award from Columbia Law School for outstanding contributions to international law. Thomas R. Pickering, a career ambassador, served as under secretary of State for political affairs, assistant secretary of State for Oceans, Environment and Science, U.S. ambassador and permanent representative to the United Nations in New York, and as ambassador to the Russian Federation, India, Israel, El Salvador, Nigeria and Jordan. He retired in 2001. In 2002, Amb. Pickering received the American Foreign Service Association's Award for Lifetime Contributions to American Diplomacy.