Editorial»
What Europe does not know
NOV 08 - When it comes to America and the death penalty, it’s safe to argue that most Europeans - including the intellectually enlightened segment of the elite - simply don’t get it.
Unlike the EU states, which have all done away with the death penalty, the United States maintains capital punishment. There are about 6,000 people on death row today in America.
Nevertheless, America’s actual execution rate is declining. Surprised? Don’t be - it is a fact. The state of California, for example, has the largest death row in the country, but has administered a total of 10 executions since 1976, including one execution in 2002. Last year, a total of 71 inmates were executed in the United States, the youngest of them 25 years old and the oldest 66.
In 1967, the U.S. Supreme Court put a de facto moratorium on capital punishment. The practice came under scrutiny as being cruel and unusual – thus unconstitutional – and too arbitrary in its application – thus, again, unconstitutional.
In 1972, in Furman v. Georgia, the Supreme Court argued that capital cases resulted in arbitrary and capricious sentencing. The court concluded that the death penalty would be “cruel and unusual” punishment if it was too severe for the crime, if it was arbitrary, if it offended society’s sense of justice, or if it was not more effective than a less severe penalty.
From 1967 to 1976, there were no executions in the United States. The death penalty was again reinstated in 1976. However, multiple Supreme Court justices - notably William Brennan and Thurgood Marshall - have since argued that the death penalty is outright unconstitutional. To spin the rhetoric somewhat, we can say that the United States was already seriously questioning the constitutionality of the death penalty when many of the European Union states still had their hands deep in execution business.
Today, the American evaluation of the death penalty continues. The debate is over proportionality and morality; or better put, where the death penalty is applicable, versus where it is not. Can, for example, a person be executed for rape - is the punishment fitting to the crime? Technically, yes, but what about morality? In the 2002 Ring case, Justice Stephen Breyer argued that the jury has a responsibility to think morally when deciding on the proportionality question.
It seems, one would think, that the debate over the death penalty in America has been and remains alive and multidimensional - not univocal. That’s good news; particularly when considering all the progress made. First, in 2002 the Supreme Court ruled to abolish the execution of the mentally retarded - arguing that it is unconstitutional to execute those who may be mentally incapable of fully understanding their situation or unable to help their lawyers. Second, the court is now seriously questioning the constitutionality of executing juveniles. It seems, according to Justice John Paul Stevens, this will be the next big death penalty issue on the court’s docket. Third, there’s the Boldus study to consider - reputable data that show race does play a role in the administering of the capital punishment. Fourth, the Supreme Court justices, aside from Antonin Scalia, are increasingly willing to consider the opinions of U.S. friends across the Atlantic.
Finally, serious discrepancies exist between national attitudes and local practices in the United States over the death penalty. For the most part, the West and the Northeast have pulled out of administering the death penalty altogether. Executions are now predominantly the business of the South. Since 1976, 652 people - around 80 percent of the national total - were executed in the South, compared with only three executed in the Northeast. Of 800 executions nationwide, 369 were performed in the states of Texas and Virginia alone.
Could it be that the death penalty is more a part and parcel of Southern exceptionalism than an American practice? It certainly seems so. .It seems that American capital punishment is on its way to abolition, though it certainly will not happen overnight. However, already and evidently, many in America are quite close to the European view. The least Europe can do is acknowledge this fact. At the time of bitter disagreements over Iraq, the trans-Atlantic relationship doesn’t need another blow-up, and certainly not over the death penalty. Posted on: 2003-11-08 12:33
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