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.