Part I THE NATIONA
by BRUCE SHAPIRO
Dinan, Brittany
This walled medieval city in France’s ancient Breton heartland is the last place anyone would look for evidence of a coming transformation in US law. German and British tourists crowd the old stone streets and file through the twelfth-century Church of St. Saveur to gaze up at a stained-glass portrayal of St. Rocco dying in prison. The small Commissaire du Police on the town square nearby is barely noticeable. But a few months ago, gendarmes from this police station and prosecutors from the nineteenth-century Palais du Justice down the block made international headlines with the arrest of fugitive James Charles Kopp, accused of murdering Buffalo obstetrician Bernard Slepian and wounding three Canadian physicians.
As noteworthy to many Americans as the fugitive’s arrest was what Dinan officials did next: They refused to extradite Kopp to the United States, because he might face the death penalty. No one in France had any sympathy for Kopp, nor did they doubt the danger he represents. But France is a signatory to European conventions prohibiting extradition where capital charges are a possibility; in a late June court hearing in Rennes, a few miles from Dinan, three judges made it clear that when it comes to this standard, France means business: Kopp would only be turned over to US prosecutors, they reiterated, if the death penalty is not “requested, pronounced or applied.” Kopp’s French lawyer, Hervé Rouzaud-Leboeuf, added this fillip: “Given what we know of the opinions of the current American President, we must stay extra vigilant.” It took three months of painstaking negotiations, ending with written assurances from George W. Bush’s normally death-penalty-enamored Justice Department, before the French in early July shipped Kopp back to New York for trial.
France’s refusal to extradite even so intensely hunted a fugitive is at once ordinary and emblematic. Ordinary: The sheltering of a US defendant from the US death penalty is routine in a growing number of countries, and is unusual only in that it surfaced in the media. Emblematic: In recent months, long-simmering overseas opposition to the US death penalty seems to have reached the boiling point.
The datelines alone suggest that something is happening on a widespread scale. Toronto and Johannesburg: The high courts of Canada and South Africa both ruled unanimously this spring that their nations may not extradite even the most wanted criminals to the United States or other nations if they could face capital charges—effectively blocking execution, one case at a time, in an international gesture of judicial noncooperation. Mexico City: President Vicente Fox personally persuaded Oklahoma Governor Frank Keating to stay the scheduled June execution of Mexican national Gerardo Valdez Mota after the State Department acknowledged that Valdez’s rights under the Vienna Convention had been violated; throughout his trial and appeals Valdez was never informed that he could call the Mexican consulate for legal help. (On July 20, however, Keating refused clemency—turning aside not only Fox but the recommendation of Oklahoma’s own parole board.) The Hague: On June 27 the World Court ruled that the United States had violated its Vienna Convention obligations by executing two German nationals without permitting them a lawyer hired by their consulate—and asserted the Court’s own authority over capital cases involving foreign nationals. Madrid: When President Bush landed in Spain, he faced scores of anti-death-penalty protesters and hard questions from the local press about a Spanish national on Florida’s death row who had been exonerated and freed just days before. All this in just a few weeks’ time. As much as 2000 was marked by Illinois Governor George Ryan’s death-penalty moratorium, this year represents “a moment of transformation,” in the words of Harold Koh, former Assistant Secretary of State for Human Rights—one in which the American death-penalty debate is going definitively global.
The New Abolitionism
While Kopp’s lawyer, the French courts and the Justice Department were concluding their negotiations for his extradition from Brittany, the speed and intensity with which the American death penalty debate has moved to a world stage were cast in bold relief across France in Strasbourg. If Dinan is defined by its ancient walls, Strasbourg, a few miles from the German border, is defined by the massive Modernist palaces of the European Union: the Council of Europe, the European Parliament and the European Court of Human Rights, adjoining one another in an expansive park near the city center. There in late June, two days after the United States executed Juan Raul Garza in Terre Haute, Indiana, the Council of Europe and the French capital-punishment abolition group Ensemble Contre la Peine de la Mort convened a World Congress on the Death Penalty, packing the parliamentary chambers and the streets of Strasbourg for three days with lawyers, politicians and activists from several continents.
On the one hand, it was the kind of politico-cultural happening that seems quintessentially European: In front of the elegantly stylized tree trunk from which springs the dais of the Council of Europe, veteran human rights lawyers and youthful Mumia Abu-Jamal advocates rubbed shoulders with Jacques Derrida, Angela Davis and Bianca Jagger.
Yet at the same time, it was clear that in Europe, at least, capital punishment is a hot topic in the highest councils of power. Austrian parliamentarian Walter Schwimmer, the avuncular Secretary General of the Council of Europe, declared the American death penalty “our greatest concern,” calling a lengthy press conference with Jagger and exonerated American death-row inmate Kerry Cook to underscore the point. Chris Patten, the last British governor of Hong Kong and chairman of Northern Ireland’s police-reform commission, called on the United States to “observe the strict limits set in international agreements” on the execution of retarded and juvenile offenders. French elder statesman and legal scholar Robert Badinter, who as François Mitterrand’s Justice Minister abolished the guillotine twenty years ago and who rushed from the Congress to negotiate the truce in Macedonia, pointed out that just four countries—China, Saudi Arabia, Iran and the United States—are responsible for 90 percent of world executions. “How can you explain these strange bedfellows?” he demanded.
Europeans oppose the death penalty in general, and in America in particular, for a variety of reasons. In Italy—home to some of the Continent’s most dedicated anti-capital-punishment campaigns, such as the transnational group Hands Off Cain—the Vatican has played a central role, following Pope John Paul II’s 1995 encyclical Evangelium Vitae. In France, groups like the League of Human Rights, founded in 1898 to defend Alfred Dreyfus, have given capital punishment abroad greater prominence, as the worst European colonial and authoritarian abuses of past generations have grown more remote. Reflexive anti-Americanism may play a part too. But increasingly—evident in any casual conversation about Timothy McVeigh—it is simple horrified bafflement.
This is not just a matter of cultural opposition. As that string of recent court cases suggests, anti-death-penalty countries—and not only in Europe—are seeking ways to intervene actively in American law and politics in a systematic and canny fashion. Three years ago the European Union declared capital punishment worldwide its top human rights priority and began channeling money into conferences, reports and lobbying. Some of the money is going toward legal reform in China, which has far and away the largest number of executions, an estimated 1,000 per year. But the greatest political effort is going toward the United States, because it is here, EU ministers feel, that they can have the greatest influence.
One crucial center of activity is the Council of Europe, comprising parliamentarians from member nations. In early June the council’s Human Rights Committee threatened to revoke US observer status—along with that of Japan, the only other observer state to retain capital punishment—unless a national death penalty moratorium is imposed within two years. “A Council of Europe observer state has to accept the principles of human rights and democracy to which all members commit themselves,” says Renate Wohlwend, a parliamentarian from Liechtenstein and the council’s rapporteur on the death penalty. “The United States is no exception.” Not long ago it might have been laughable to think of Liechtenstein attempting to influence the United States in any way; but the Council of Europe and the EU have effectively amplified and given institutional clout to voices like Wohlwend’s.
Activists are looking for creative ways to intensify European pressure. At the World Death Penalty Congress in Strasbourg, Steven Hawkins, executive director of the National Coalition to Abolish the Death Penalty in Washington, found a receptive audience when he proposed that European nations target investment in the United States to non-death-penalty states—shifting hundreds of millions of dollars from Texas, California and Pennsylvania to Massachusetts, Michigan and moratorium-bound Illinois. Publicly, few officials are willing to go that far yet: “I view myself as a friend of America,” said Secretary General Schwimmer. “I do not know that we will see economic boycotts. But at the same time, we will find ways to show the seriousness of our concern.” Privately, European parliamentarians say Bush’s persistent rebuffs of Europe over missile testing and the Kyoto treaty make the idea of eventual economic action far more palatable.
The intensity of European engagement echoes sentiments heard increasingly in the Americas. Canada removed the last vestiges of capital punishment from its laws in 1998, while Mexico—which in theory keeps a death penalty for treason and a handful of other extraordinary offenses—has not executed anyone in more than sixty years. Mexican Foreign Minister Jorge Castañeda calls the forty-five Mexican nationals currently on US death rows “an important strain on bilateral relations”—so important a strain that Mexico has put a US defense attorney on full-time retainer for capital cases. Elsewhere in Latin America, only Guatemala and Guyana still have capital punishment on the books. In countries whose closets are still crammed with the skeletons of dictatorship and civil war, the death penalty has special meaning. Chile, for instance, formally abolished it in June (an event greeted in Rome with a celebratory lighting of the Colosseum). “Our countries have lived the death culture, so we know how important this is,” said Andrés Zaldívar Larraín, president of Chile’s Congress, in Strasbourg. In an exquisite irony, Fidel Castro—along with a few tiny Caribbean commonwealth states—joins the United States in keeping capital punishment alive in the Western Hemisphere.
Collision Course
In part, worldwide anti-death-penalty sentiment has ratcheted upward over the last year for precisely the same reasons that US support for capital punishment has softened: nearly 100 high-profile exonerations, the example of Illinois’s moratorium [see Shapiro, “A Talk With Governor George Ryan,” January 8/15] and George W. Bush’s track record as what France’s Badinter calls “the world champion executioner.”
But on another level the United States long ago set itself on a collision course with its closest democratic allies. The historical arc leads back to a single month a quarter-century ago. In June 1977, a full year after the Supreme Court reinstated capital punishment, Utah stood Gary Gilmore in front of a firing squad. In that same month, Patrick Henry, accused of kidnapping and garroting a small child in France, faced the death penalty in a media-saturated trial. Badinter, then a rising legal star, persuaded the jury to spare Henry’s head by putting the death penalty itself on trial as an atavistic relic. Badinter’s argument effectively shut down the guillotine, and in 1981 he spearheaded its formal abolition.
Just thirty-one nations had banished capital punishment at that time, and it was still on the books not only in France but also in Belgium and Britain. The United States carried out a single execution in that year. But subsequently, abolition worldwide has gained momentum in inverse proportion to the proliferation of American executions. Since the US death penalty was reinstituted, 725 people have been put to death. Meanwhile, more than seventy nations have abolished capital punishment—twenty-four in the past four years alone, ranging from South Africa to Azerbaijan.
The shift away from capital punishment was particularly notable in Europe. In 1985 the Council of Europe adopted an amendment to the European Convention on Human Rights, known in international law circles as Protocol 6, abolishing the death penalty in peacetime. It was what Hans Krüger, the council’s deputy secretary general, calls “the first binding legal instrument” to outlaw executions under routine conditions. In 1994 the council made ratification of Protocol 6 a condition for membership. Any nation wishing to sit in the council or join the EU was required to either abolish the death penalty or impose a moratorium and a schedule for abolition.
Coming amid the post-cold war reconfiguration of Europe, the impact of Protocol 6 was seismic, says Harold Koh. “Every country that wants to join the EU has had to do the kind of cost-benefit analysis over capital punishment that we in the United States have always avoided,” Koh says. “It has really raised the bar.” Even the Russian Federation, long one of the United States’ chief competitors in the execution game, has signed Protocol 6, though the Duma has yet to ratify it. Between 1995 and 1998, Ukraine executed more than 200 people. But last year—with Ukraine’s membership in the EU more valuable than its historic embrace of the death penalty—the country ratified Protocol 6. In all of Europe, only Turkey keeps capital punishment on the books, and that is being challenged now, with the capital conviction of Kurdish resistance leader Abdullah Ocalan in 1999.
A New Standard
One of the best vantage points from which to view this revolution in international crime-and-punishment culture is the Irish Center for Human Rights, in Galway. The center’s director, William Schabas, is a Toronto-born human rights lawyer and expert on international law who before moving to Europe spent time working in Washington. Schabas drafted Amnesty International’s brief in the Canadian extradition case and in any given week is likely to fly between, say, a death penalty conference in Taiwan and a consultation with Mexico’s US attorney. Schabas sees a welter of developments—international law like the Vienna Convention and Protocol 6, national precedents like the South African and Canadian Supreme Court decisions, the prosecution of war criminals like Slobodan Milosevic—all creating a culture that will make it much more difficult for the United States to sustain its unilateral commitment to the death penalty. “You can see the fissures in formerly impenetrable legal systems,” he says. “It is like the abolition of slavery 150 years ago: on the one hand, slow progress, yet absolutely inevitable conflicts that will have to be addressed sooner or later.”
One of the reasons he is convinced the pace of change is accelerating: “For the first time, the death penalty debate is moving bottom-up as well as top-down.” Part of the evidence lies outside Schabas’s office window in Galway. For years, death-penalty supporters have claimed that Europe’s abolitionist laws were elitist reforms that did not reflect popular sentiment. And in fact, capital punishment was never put to a popular vote in any European country. Not, that is, until this June, when a handful of human rights lawyers succeeded in placing a referendum on the Irish ballot permanently excising capital punishment—even in times of war or civil unrest—from the Republic’s constitution.
It was, in some ways, a risky strategy. Says Schabas, “There have been public opinion polls in some other European countries suggesting you might win an anti-death-penalty referendum. But until Ireland, no one dared to do it.” Ireland’s last execution was in 1954, but crime rates and public fear have been rising. Turnout was high, thanks to heated public debate over another referendum, on a proposed treaty governing the federation’s expansion. The results were staggering: Death-penalty abolition was approved by more than 60 percent of voters.
The idea of bottom-up opposition to capital punishment—a new strategy for abolitionists who cut their teeth fighting in the courts—is taking hold on both sides of the Atlantic. In the United States, Bobby Muller of the Vietnam Veterans of America Foundation, who helped initiate the successful worldwide campaign for a landmine treaty, is working with anti-death-penalty victims of violence as well as European groups to establish a new transnational lobby. In Europe, religious and civic groups like Italy’s Community of San Egidio, a Catholic social-justice network, have begun adopting US death-row prisoners, making links through sister cities in the United States and taking other steps more sophisticated than simply filing futile last-minute diplomatic protests, as was often the strategy in the past. Indeed, Emma Bonino, president of the abolitionist network Hands Off Cain, sees a new, more democratic approach evolving. “You cannot impose a new human right by decree—a mistake sometimes made in the past,” she says. “That’s why it is important to push for a moratorium. A moratorium is the common ground between abolitionists and retentionists, which can allow the debate to take place.”
Once Again, the Swing Vote
The picture that emerges is of the United States alone in the democratic world, encircled by governments and NGOs seeking every possible way of encumbering the American death penalty. “I must say, this is a globalization I like,” says the Council of Europe’s Schwimmer.
The question remains, though: What impact does all this effort have in the United States? Can the Supreme Court, for instance, be persuaded that the overwhelming consensus of the world’s democracies has relevance for the American death penalty? It’s an intriguing question. The Declaration of Independence places America on a global stage when it makes references to “a decent respect to the opinions of mankind.” And until the mid-1980s, Supreme Court decisions about the death penalty—like Gregg v. Georgia, which reinstated capital punishment in 1976—frequently made reference to international standards, to the number of countries accepting or rejecting capital punishment, for instance, as a way of gauging society’s consensus on the issue.
All that changed in 1989, when Justice Antonin Scalia wrote a 5-to-4 majority opinion in Stanford v. Kentucky. The Court declared that only domestic “evolving standards of decency” matter in capital cases. Moral sensibility, the Court ruled, stops at the water’s edge. But it is not a closed question. Justice Sandra Day O’Connor concurred separately in Scalia’s ruling—hinting that she might still be open to a world-standard argument. Indeed, O’Connor seems to be rethinking, or at least restrategizing, her overall position on the death penalty, commenting recently at a Minnesota conference that inequities in trial representation may have led to the execution of innocent people.
The global debate matters in another and far more immediate way, too: It is persuading a growing number of US diplomats that capital punishment may be more trouble than it’s worth. Recently Koh, the former US official, wrote a Supreme Court brief on behalf of a dozen retired American diplomats in the case of a mentally retarded North Carolina inmate, due for a hearing in October. The diplomats—including Thomas Pickering, the Reagan and first Bush administrations’ ambassador to El Salvador—argue that the United States is so alone in execution of the retarded (a practice banned even in China) that it is interfering with US diplomacy. “I can’t tell you the number of times we had meetings with another government over serious human rights issues—and all we heard about was the death penalty,” Koh says. The extradition issue is one concrete example: “a painstakingly constructed system of international law enforcement is being disrupted” by allies’ revulsion at the death penalty, he says. As for major human rights abusers like China, he adds, “We’re just handing these thugs ammunition.”
That is not to say that all this transnational effort is for the benefit of Justice O’Connor. In Galway, William Schabas sees the impact spreading to judges well beyond the Supreme Court. “US judges are spending more and more time at international conferences,” Schabas says. “The notion of ‘evolving standards of decency’ has specific relevance in developing a different courtroom culture around capital punishment.” In the long run the real question is not about courtrooms. Europe and Latin America will not resolve the US death-penalty problem. But the new transnational abolitionists may at least accelerate awareness that the United States has a death-penalty problem—a problem with legal, moral and, yes, perhaps even financial consequences. The question is whether the increasingly impassioned campaigners now hammering on the nation’s doors from Mexico and Europe can reach over the heads of judges and politicians, for the first time placing American capital punishment in a global context and making clear our isolation in the democratic world.
