By Richard C. Dieter

From: Foreign Service Journal, October 2003

Richard Dieter is Executive Director of the Death Penalty Information Center. A graduate of Georgetown University Law Center, he also teaches capital punishment law at Catholic University Law School.

Slowly, but impressively, international law and opinion are beginning to have an impact on law in the United States, and particularly on the death penalty. While the law and practices of other countries may not have played a significant role in the past in the evaluation of our society’s standards of decency, recent opinions indicate that that influence may be growing. And while the American public strongly supported the death penalty during periods when many of this country’s closest allies were renouncing capital punishment, public opinion in the U.S. is now shifting. The prospects for profound change in the death penalty in the U.S. are stronger now than at any other time in the long and controversial history of this important issue.

There are at least three reasons for this development. First, there is a greater recognition of the need for international cooperation and respect for the laws of other democracies, and this recognition is finding its way into decisions by the highest courts in the U.S. Second, today there is a broader intersection between U.S. capital punishment law and the interests of other countries. Issues of extradition, the execution of foreign nationals, and the prospects of military tribunals to deal with suspected foreign terrorists often put the death penalty and international human rights concerns in direct conflict. Third, while the past presented the U.S. with a diversity of views on capital punishment among its allies, the present confronts us with a near unanimity on certain aspects of the death penalty and a growing consensus condemning its use in general.

International Influence in the Past

The death penalty in the earliest days of the United States was a continuation of the practice brought over from England, but less harsh. The number of crimes punishable by death was curtailed in the early colonies compared to the long list of capital offenses in England, and gradually became limited to the most violent crimes such as first degree murder and rape. Some jurisdictions in the U.S. abolished the death penalty in their state systems long before that became the norm in Western Europe. The state of Michigan abolished the death penalty in 1846 and Wisconsin took a similar step in 1853. Neither state has carried out an execution since then.

But the death penalty was not seriously challenged as a constitutional issue in the U.S. until the late 1960s — a time of considerable turmoil on civil rights issues here, and a time of movement toward abolition of the death penalty in Europe. This challenge resulted in the somewhat surprising decision of the U.S. Supreme Court in Furman v. Georgia in 1972 finding the death penalty to be unconstitutional as it was being applied everywhere in the U.S. The five opinions of the concurring justices made scant mention of any trend away from the death penalty outside the U.S., though they recognized the debt that the ban on cruel and unusual punishments owed to English law and the Magna Carta. Some of the justices measured the meaning of this clause by the “evolving standards of decency” in society, but did not look to other countries for these standards.

The decisive rationale for holding the death penalty unconstitutional in Furman rested on its arbitrary and capricious use within the United States, rather than on any declining use or condemnation from abroad. In fact, a number of the justices pointed to the increasing rarity of the use of the death penalty in the U.S. as a reason for stopping it all together. Justice Stewart, one of the two key Justices in the decision, compared the death penalty to the random act of being “struck by lightning.” Justice White, the other centrist, said that it was impossible to distinguish the many cases eligible for the death penalty from the few who received it.

In the late 1980s, international opinion was considered but largely rejected in the discussion of the death penalty for juvenile offenders. The Supreme Court banned the execution of those who were under 16 years-of-age at the time of their offense in Thompson v. Oklahoma in 1988, relying almost exclusively on U.S. practice at the time. When the Court was faced with the companion question regarding the execution of those who were 16 or 17 years old at the time of their crime, it not only allowed the practice, but Justice Scalia, writing for the court, strongly objected to the use of international opinion in evaluating the evolving standards of decency to apply in the U.S., a point raised by the dissent. This sharp difference of opinion on the use of international standards set the stage for future battles on the death penalty in the Court.

International influence on the U.S. death penalty perhaps reached its nadir in the dispute over the execution of foreign nationals in this country. When it was gradually discovered that the U.S. had been systematically ignoring the provisions of the Vienna Convention on Consular Relations by failing to inform defendants of their right to confer with their respective consulates, and that some of these defendants had been sentenced to death, numerous objections were raised. The issue reached a crisis with the scheduled execution of Angel Breard in Virginia in 1998. Breard’s home country, Paraguay, tried to intervene on his behalf in Virginia courts, in federal court and with the governor — all to no avail. Finally, Paraguay appealed to the International Court of Justice at The Hague and received an order for a stay of execution. They brought this order to the U.S. Supreme Court, but the case was dismissed, largely on procedural grounds, and the execution went forward on schedule.

Germany pursued a similar route to stop the execution of two of its citizens, Karl and Walter LaGrand, who were also not informed of their consular rights. Again the ICJ unanimously called for a stay of execution, but the order was rejected. This time, Germany continued pursuing the matter in the ICJ after the executions and eventually prevailed in a ruling holding the U.S. in violation of the Vienna Convention treaty.

All of this caused little ripple in the U.S. media or in public opinion. For example, a poll conducted in 2000 by Newsweek found that, even among opponents of the death penalty, only 2 percent gave as the main reason for opposition that the death penalty “hurts America’s image.” But now there are signs of change.

New Weight to World Opinion

In 2001, the Supreme Court surprised many in the U.S. by agreeing to hear the appeal of Earnest McCarver from North Carolina, whose attorneys had raised the issue of his mental retardation. At the time of this grant of certiorari, only 13 of 38 death penalty states had passed laws forbidding the execution of the mentally retarded. When the Supreme Court had first addressed this issue in 1989 in Penry v. Lynaugh, it found insufficient evidence of a national consensus rejecting such executions. It was not clear that the standards of decency had now evolved to the extent that these executions should be declared unconstitutional. McCarver’s appeal was eventually ruled moot when the state of North Carolina joined a growing list of states banning the execution of the mentally retarded. But the Court quickly took up a new case, Atkins v. Virginia, and in 2002, with 18 states outlawing such executions and a clear trend toward more such bans, it ruled that this practice had become a cruel and unusual punishment.

From an international perspective, this case was significant for two reasons. First, it marked the first major removal of a whole class of inmates from death row in many years. The international community, through resolutions at the United Nations Commission on Human Rights, and in other forums, had called for just such reform on many occasions. Second, the Court’s opinion in Atkins v. Virginia made specific reference to the amicus curiae brief filed by the European Union supporting such a ban. The clear inference of this reference was that international opinion played a role in determining the standards of decency as they evolved in a maturing society. The count of 18 states banning such executions did not consist of a majority of the death penalty states, yet the Court found evidence of a consensus when these states were joined with many other factors, including world opinion. It should be added that among other amicus briefs supporting the exemption was one submitted by former members of the U.S. diplomatic corps.

International opinion has gained even greater stature in U.S. court decisions in recent months. Perhaps the two most important Supreme Court opinions from the 2002-2003 term were Lawrence v. Texas and Grutter v. Bollinger. Neither of these involved the death penalty, but instead dealt with the right to privacy for consenting adults in sexual relations (Lawrence) and affirmative action programs at universities (Grutter).

In Lawrence, the Court overturned a prior ruling in which reference had been made to an asserted uniformity of laws forbidding homosexual relations. In rebuttal of this notion, Justice Kennedy pointed to the contrary opinion of an advisory committee to the British Parliament and to a decision of the European Court of Human Rights as examples of authority upholding privacy rights. Such a reference in a sensitive matter involving states’ rights, morality, and the law sent a powerful new message about the weight to be given international law.

In Grutter, the Supreme Court upheld a limited use of affirmative action programs such as the one employed at the University of Michigan Law School. Justice Ginsburg concurred in the result, and specifically cited international law on the same matter: “The Court’s observation that race-conscious programs ‘must have a logical end point’ accords with the international understanding of the office of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, endorses ‘special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.’” (emphasis added).

Progress on Death Penalty Issues

The right to effective representation at trial. In capital punishment matters, the Court signaled a greater openness than in the past to the informed opinions of bodies that have explored this issue in depth. In a key decision on the right to effective representation at trial, Wiggins v. Smith, the court pointed favorably to the guidelines for defense attorneys established by the American Bar Association. Though not strictly an international organization, the ABA has members around the world and is deeply involved in the subject of international law. Moreover, in a previous decision, the Court had bypassed the ABA’s guidelines as worthy ideals, but not required for minimal constitutional representation.

Juvenile offenders. It is widely anticipated that the Supreme Court will eventually review another issue that has strong international law overtones: the execution of juvenile offenders. Just as the Court reviewed the execution of the mentally retarded in Atkins, so, too, are they likely to reconsider whether those who were under 18 years of age should be eligible for the death penalty. Four justices, ordinarily enough for the court to grant certiorari in a case, have already expressed their view. In dissenting from denial of the writ of habeas corpus in a 2002 death penalty case, they stated that it has come time to end this “shameful practice” that they regarded as a “relic of the past.” Since international opinion, as expressed through the International Covenant on Civil and Political Rights and in the Convention on the Rights of the Child, is nearly unanimous on this point, it seems likely that international opinion will contribute to the ultimate decision in this case.

Consular relations and the Vienna Convention. Despite the Supreme Court’s dismissal of international challenges based on the Vienna Convention on Consular Relations mentioned above, the issue has gained attention both at the U.S. State Department and among countries with citizens on death rows in the U.S. In an effort to inform and assist law enforcement agencies with regard to this binding treaty, the State Department has distributed summaries of the information that police should give to foreign nationals in a variety of languages.

The president of Mexico, Vincente Fox, emphasized the critical importance of this issue for his country when he cancelled a scheduled visit with President Bush in Texas after a Mexican national was executed, despite the failure of law enforcement to provide him with his rights under the treaty. Recently, Mexico obtained a ruling from the International Court of Justice that called for stays of execution for three Mexican citizens facing possible execution dates in the U.S., and calling for more time to study the cases of 48 other such Mexicans on death rows around the country. Countries such as Mexico and El Salvador, which have a number of their citizens on state death rows, have begun providing assistance to the lawyers defending such persons, sometimes even before trial in order to avoid the death penalty in the first place.

In U.S. courts, the Vienna Convention issue is being raised earlier in the judicial process and in some cases courts have recognized the establishment of individual defendant rights connected to this treaty. U.S. District Judge David H. Coar ruled that a decision by the International Court of Justice “conclusively determines that Article 36 of the Vienna Convention creates individual enforceable rights, resolving the question most American courts have left open.” In his ruling in the case of Gregory Madej, a Polish foreign national who claims that Chicago police and Cook County prosecutors violated his right to secure consular assistance, Judge Coar noted that Madej’s rights under both the Vienna Convention and the Consular Convention of 1972 between Poland and the United States “were clearly violated.” The judge rejected arguments that an individual alleging violations of Article 36 may be denied relief if he misses the deadline imposed by the state for initiating such a challenge to his conviction or sentence.

Broader Intersection of Foreign and U.S. Interests

Although there have been foreign nationals on death rows in the U.S. in the past, the issue received scant attention until executions of such persons began occurring regularly in the 1990s. Even then, the raising of the Vienna Convention as a legal challenge to the death penalty was rare. There was little knowledge of how many foreign nationals were present on death row, and from what countries. Today, all that has changed. Both defense attorneys in the U.S. and officials from other countries are aware of this issue and that there are at least 118 foreign nationals from 30 different countries on death rows across the U.S.

In addition to the execution of foreign nationals, there are numerous instances where people wanted for crime in the U.S. are arrested in other countries. The question of extradition and the possible use of the death penalty has raised major concerns throughout Europe, Canada, Mexico, and parts of Africa. The urgency of this issue has been heightened by the events of Sept. 11 and the war on terrorism. Suspected terrorists not only may face the death penalty in the U.S. if extradited, but they may also be tried in a military tribunal that lacks the normal due process afforded defendants in the civilian courts. While the U.S. sorely wants to bring such suspects to justice, many countries just as strongly believe that the death penalty is a human rights issue and extradition in such circumstances would be a violation of deeply held principles.

In a measure of the direct influence that countries can have when they hold something the U.S. wants, states and the federal government have agreed to drop the prospect of capital punishment in numerous cases in exchange for extradition from other countries. Similarly, following a visit by British Prime Minister Tony Blair to Washington recently, the U.S. announced that the death penalty would not be sought against two British citizens who were among the first six to be tried under the new military tribunals. It appears that a similar rule will apply against two Australian citizens who have also been held at Guantanamo Bay, Cuba, awaiting military tribunals.

A More Cohesive Opposition

Clearly, the world is more interconnected than ever before. Interests of trade, the promotion of human rights, fighting terrorism, and international development, all require greater cooperation among countries. The U.S. is keenly aware of these new realities and has sought allies for its military interventions in Kuwait, Afghanistan, and Iraq. The U.S. concern was also demonstrated by its angry reaction to being excluded from the U.N. Commission on Human Rights in 2001 (though it has now regained its seat). The U.S. is facing a further embarrassment if it loses its observer status in the Council of Europe, which has been directly tied to movement on the death penalty issue.

In the long run, the reason why international opposition to the death penalty may finally be having a significant impact on the U.S. is that this opposition is more cohesive than ever before. The United States’ closest allies in Europe and North America are unanimous in rejecting the death penalty and they do not hesitate to let their views be known. New countries can only be admitted to the growing European Union, a body whose size and economy may soon equal or surpass the U.S., if they renounce the death penalty. Courts in countries such as Canada and Mexico, and throughout Europe, have begun to consistently refuse extradition as long as the death penalty is a possibility in the U.S. And, on the issue of the execution of juvenile offenders, every country of the world, with the possible exception of Somalia, has ratified the Convention on the Rights of the Child forbidding such executions. In the face of such consistent and adamant challenges to the death penalty, the U.S. risks becoming isolated at a time when it can least afford it.

There are increasing signs that giving way on the death penalty would not be the major concession it would have been in the past. Doubts about the accuracy and fairness of the death penalty have increased dramatically in the U.S. as scores of inmates have been freed from death row. Support for life without parole sentences has increased, and the number of death sentences in the U.S. has plummeted by 50 percent in recent years. The only contrary trend is a more aggressive use of the federal death penalty by the present administration. But even there, the results reflect a growing ambivalence about this ultimate sentence: 20 of the last 21 federal capital prosecutions have resulted in sentences of less than death.

International concerns about the death penalty would probably never be enough alone to make the U.S. abandon this practice. But capital punishment is unlikely to be undone for any one reason. Like snow on a branch, it is not any single flake that makes the branch break, but rather the collective weight of many flakes accumulating over time. Because international concerns are generally being given more recognition in the U.S., because various aspects of the U.S. death penalty are forcibly intersecting with the citizens and principles of other countries, and because the opinion of those other countries is more unified than ever before, it is likely that the death penalty will come under increasing criticism both here and abroad, and its use will continue to decline.