Thursday, May 1, 2014

International Spotlight on the Death Penalty

It doesn’t seem right to let the execution debacle in Oklahoma go un-remarked on this blog.  While this domestic tragedy might not be appropriate for a comparative law blog under normal circumstances, the fact that France, Spain and England have publically commented on it raises a comparativists interests, as does the mass death sentence of almost 700 people this week in Egypt.

Usually, our European colleagues hold their noses but remain quiet about the outlaw justice that the U.S. death penalty represents to them.   Uncharacteristically, however, the botched execution, which resulted in an excruciating death – “cruel and unsual” as a Times editorial called it - spurred our allies to public comment.

The death penalty is banned in the European Union, with Belarus the only European country that still carries out legal executions.  The UK banned the death penalty long ago, and France banned it in 1981.  The immorality of this sentence is old news to Europeans.  What is interesting however, is that the EU has also moved to ban the export to the United States of the kinds of drugs used for lethal injections and, as a result, one company has stopped making them and others, fearing sanctions, have sought to prevent their use in executions.  It is not surprising, then, that US jurisdictions, like Oklahoma, have had trouble getting the kinds of lethal drugs they need to carry out their executions properly and have resorted to unknown and unnamed sources of supply for unnamed and undisclosed drugs.  The botched execution appears to be the result of that misguided practice.

As reported in the New York Times, France, Spain, and the UK all issued official statements condemning the execution in Oklahoma and urging the abolition of the death penalty worldwide as a matter of “human dignity,” “principle,” and its lack of demonstrated “deterrent value.”

According to Amnesty International, twenty-two countries conducted 778 executions in 2013.  These figures do not include executions in China, where death penalty statistics are considered a state secret and are unavailable.  Amnesty International reports that China executed more people than all of the other countries in the world combined.   The US is the only country in the Americas to have carried out any executions in 2013, with 41% taking place in Texas. 

Suffice it to say we are not in good company.   This has been recognized in the Supreme Court’s controversial juvenile death penalty cases, where Justice Anthony Kennedy, in particular, has pointed out our ignoble place in the developed world on juvenile executions in particular.  In Roper v. Simons, Justice Kennedy explained that “[i]t does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”

To be sure, the White House also condemned the barbarity of yesterday’s execution.  White House Press Secretary Jay Carney commented “that we have a fundamental standard in this country that even when the death penalty is justified, it must be carried out humanely. And I think everyone would recognize that this case fell short of that standard.”

Politically, of course, the Left has been opposed to the death penalty for years, and the Right has joined the bandwagon in some instances as part of its austerity and anti-big government agenda.  Is it possible that market forces will ultimately determine this important moral issue?  If pharmaceutical companies have a financial disincentive to produce the correct drugs and the public continues to be treated to medieval, town-square executions like yesterday’s, maybe enough will be enough.  It will not be the first or last time that money talks. 

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