Embed Size (px)
Citation preview
This article was downloaded by: [Northeastern University]On: 11 October 2014, At: 00:55Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number: 1072954 Registeredoffice: Mortimer House, 37-41 Mortimer Street, London W1T 3JH, UK
Survival: Global Politics and StrategyPublication details, including instructions for authors andsubscription information:http://www.tandfonline.com/loi/tsur20
The EU Campaign against the DeathPenaltyJohn R. SchmidtPublished online: 15 Feb 2011.
To cite this article: John R. Schmidt (2007) The EU Campaign against the Death Penalty, Survival:Global Politics and Strategy, 49:4, 123-134, DOI: 10.1080/00396330701733886
To link to this article: http://dx.doi.org/10.1080/00396330701733886
PLEASE SCROLL DOWN FOR ARTICLE
Taylor & Francis makes every effort to ensure the accuracy of all the information (the“Content”) contained in the publications on our platform. However, Taylor & Francis,our agents, and our licensors make no representations or warranties whatsoever as tothe accuracy, completeness, or suitability for any purpose of the Content. Any opinionsand views expressed in this publication are the opinions and views of the authors,and are not the views of or endorsed by Taylor & Francis. The accuracy of the Contentshould not be relied upon and should be independently verified with primary sourcesof information. Taylor and Francis shall not be liable for any losses, actions, claims,proceedings, demands, costs, expenses, damages, and other liabilities whatsoever orhowsoever caused arising directly or indirectly in connection with, in relation to or arisingout of the use of the Content.
This article may be used for research, teaching, and private study purposes. Anysubstantial or systematic reproduction, redistribution, reselling, loan, sub-licensing,systematic supply, or distribution in any form to anyone is expressly forbidden. Terms &Conditions of access and use can be found at http://www.tandfonline.com/page/terms-and-conditions
A strong idealistic streak in foreign policy runs through much of US history. ‘Wilsonianism’ has become a byword for activist US moral engagement in inter-national affairs. The United States conducted the Cold War in large part as an ideological struggle against Soviet Communism. In the post-Cold War era both Democratic and Republican administrations have made democracy promo-tion a central feature of foreign policy. In circumstances where moral concerns seemed to conflict with narrow considerations of national self-interest, as in US support for dictatorships during the Cold War, the departure from moral-ity was conceived as a short-term concession to the greater good of defeating Communism. Even the relative isolationism that has characterised US policy at various times is based on a belief that a morally superior America should not sully itself by involving itself in the affairs of cynical and untrustworthy Europeans.
Seymour Martin Lipset observed that the United States was the first nation founded on the basis of universal political principles. This, he argued, inculcated in Americans a tendency to see their nation as uniquely virtuous and to view matters of public policy in moralistic terms. This was not simply a domestic orientation but carried over into international relations, where moral consider-ations frequently intruded into foreign policy.1 In characterising this aspect of American behaviour as exceptional, Lipset meant to contrast it with European attitudes. European states were based, not on shared political principles, but on ethnic, cultural and linguistic affiliations, the fortunes of war and dynastic suc-cession, and common history. This generated hard-boiled foreign policies based on regime self-interest and realpolitik.
The EU Campaign against the Death Penalty
John R. Schmidt
Survival | vol. 49 no. 4 | Winter 2007–08 | pp. 123–134 DOI 10.1080/00396330701733886
John R. Schmidt is Senior Analyst for Europe in the Bureau of Intelligence and Research at the US Department of State. The views expressed are his and not necessarily those of the Department of State or the US government.
Dow
nloa
ded
by [
Nor
thea
ster
n U
nive
rsity
] at
00:
55 1
1 O
ctob
er 2
014
124 | John R. Schmidt
This European tendency culminated in the cataclysm of the First World War and the subsequent emergence of fascist dictatorships in Germany and Italy, which brought about the even greater cataclysm of the Second World War. The exception to realpolitik in Europe was the rise of Soviet communism, which provided an ideological counterweight to the universalistic principles espoused by the United States. During the Cold War, while Moscow and Washington were locked in a global struggle for hearts and minds, the mainstream nations of Western Europe, although themselves democratic, were primarily motivated by the desire for self-preservation. The United States took the lead in promoting Western values, most prominently by using the Helsinki process to make human rights a centrepiece of Western foreign policy. Although European governments followed in the US slipstream, they were never – with a few exceptions, such as Britain under Margaret Thatcher – completely comfortable in waging ideologi-cal warfare.
Yet today, less than two decades after the end of the Cold War, and barely a decade after the publication of Lipset’s book, European governments, most commonly under the banner of the EU, frequently speak out on moral issues. Perhaps even more surprising is the issue that predominates over all others: the death penalty. The table of contents for the European Commission’s web page devoted to human rights and democracy lists a number of issues championed by the EU; the death penalty is the first. It comes before human trafficking, before racism, before torture and before the rights of children, minorities, indigenous peoples, and the disabled.2 The EU is sufficiently serious about the issue that it has made abolition of the death penalty a precondition for mem-bership. Since 1998 it has raised its concerns over capital punishment directly with governments that still practice it and publicly championed its worldwide elimination. The United States has been the most frequent target, since it is the only advanced industrial democracy other than Japan that continues the practice.3 EU countries also forbid the extradition of persons who may face execution for their crimes, no matter how heinous those crimes might be. The EU Commission has even produced an anti-death penalty video entitled ’Death Has No Appeal‘, which begins with a highly provocative animation of a kneeling man being shot in the head by a policeman at point-blank range.4 Yet, paradoxically, European publics continue to favour the death penalty. The most recent evidence comes from a Novatris/Harris poll commissioned by Le Monde in 2007, in which a majority of people surveyed in France, Germany, the UK and Spain supported the execution of Saddam Hussein. Even in Italy, where abolitionist sentiment has traditionally run strongest, 46% favoured the death penalty in this case.5
Dow
nloa
ded
by [
Nor
thea
ster
n U
nive
rsity
] at
00:
55 1
1 O
ctob
er 2
014
The EU Campaign against the Death Penalty | 125
What is going on here? Why has Europe, which had never before been noted for intruding morality into foreign-policy considerations, become a vocal cham-pion for human rights? Why has the EU taken this issue – saving the lives of persons convicted of murder – as the poster child for its commitment to this cause? And why have European governments and the EU gone so stridently down this road when European publics, by and large, still seem to favour capital punishment, at least for certain crimes? Although the death penalty may seem a small matter among the great issues of our time, the answers to these questions shed light on the role of political elites in shaping post-Cold War Europe, on the emergence of the EU as a multinational entity with supranational aspects, and on the evolving nature of US–European relations. Just as the United States con-structed a unique identity by adopting and internalising a unique set of political principles, based on individual liberty and laissez-faire economics, so too is the EU, led as always by its political elites, now in the process of constructing its own identity. Although there are considerable points of overlap, the death-penalty issue shows these are competing visions, which could cause increasing frictions in transatlantic relations over time.
Despite its rapid rise to prominence, the death-penalty issue did not spring fully formed from the head of a European Zeus overnight. It has a history, which begins in the immediate aftermath of the Second World War. The genocidal execution of innocent civil-ians without trial caused revulsion across Europe. West Germany formally outlawed capital punishment in 1949. Italy outlawed the death penalty except in time of war in 1947. The UK outlawed it for murder in 1965 but retained it for treason and a short list of other crimes. Most other Western European nations kept their laws on the books, but increasingly refrained from using them. Belgium and Denmark carried out their last executions in 1950, the Netherlands in 1952, Spain in 1975 and France in 1977.6 The exceptions were in the communist countries of Central and Eastern Europe, where the practice was perpetuated by totalitarian regimes. In 1950, the newly created Council of Europe, composed of parliamen-tarians from ten Western European nations, found its niche by negotiating the European Convention on Human Rights, which included a provision on the death penalty. The emphasis, however, was not on abolition, but on ensuring due process in the administration of capital punishment.7
The issue lay fallow until 1973, when a draft resolution abolishing the death penalty was submitted to the Legal Affairs Committee of the Council of Europe. The effort generated a study that advocated abolition but was beaten back due
The genocidal execution of
civilians caused revulsion across
Europe
Dow
nloa
ded
by [
Nor
thea
ster
n U
nive
rsity
] at
00:
55 1
1 O
ctob
er 2
014
126 | John R. Schmidt
to opposition by British Conservative Party delegates.8 Nonetheless, a process had been set in motion that within a decade would lead the Council to amend the European Convention on Human Rights to call for the complete abolition of the death penalty in peacetime. Critical to this process was the decision by Amnesty International in 1977 to begin publicly championing the abolitionist cause.9 Amnesty, which has traditionally exercised considerably more influence in Europe than in the United States, gave the issue visibility and credibility, and helped rally sympathetic European political elites to the cause. The issue was reintroduced into the Legal Affairs Committee in 1979 and, despite lingering opposition from conservatives, continued to gain support, until agreement was finally reached in December 1982 within the full Council on Protocol 6 to the human-rights convention, which called for the abolition of the death penalty for all crimes except in time of war.10
Protocol 6 entered into force in 1985. By that time five additional Western European nations – Portugal, Denmark, Luxembourg, France and the Netherlands – had abolished the death penalty for all crimes.11 At this point progress slowed. By 1990 only eight Western European states had ratified Protocol 6 and only six of the then 12-member European Community had abol-ished the death penalty for all crimes.12 But renewed momentum was provided by the end of the Cold War and subsequent transformation of the European Community into the European Union under the 1992 Treaty of Maastricht. One of the key goals of Maastricht was to set in motion a process that would, over time, establish ‘an ever closer union’. As part and parcel of this, the EU sought to create common policies in selected areas across the full spectrum of gover-nance. In the area of human rights, the death penalty provided an issue ready to hand that potentially involved both foreign and domestic policy.
As a first step in this direction the EU sought to accede to the European Convention on Human Rights. But this was rebuffed in early 1996 by the European Court of Justice, which ruled that since the EU was not, strictly speak-ing, a state, it did not have the standing under international law to ‘adopt rules or conclude international agreements on human rights’.13 This rebuff spurred efforts to create an EU counterpart to the convention, culminating in the EU Charter of Fundamental Rights, which was approved in late 2000.14 The charter required the abolition of the death penalty for all crimes and forbade EU states from extraditing anyone who might be subject to the sanction. While the charter was being negotiated, the last three EU members that retained capital punish-ment for at least some crimes finally abolished it altogether. The decision by the last to do so, the UK in 1998, paved the way for the EU to turn what had been primarily an internal EU domestic issue into one of foreign policy. In June of
Dow
nloa
ded
by [
Nor
thea
ster
n U
nive
rsity
] at
00:
55 1
1 O
ctob
er 2
014
The EU Campaign against the Death Penalty | 127
1998 the EU Council promulgated the ‘Guidelines to EU Policy Towards Third Countries on the Death Penalty’.15
The guidelines state that the EU will work toward universal abolition of the death penalty and seek progressive restrictions on its use in states where it still exists. To this end, the EU would speak out publicly on the issue and raise its concerns directly with countries that still retain capital punishment, in general terms and in individual cases where it believes that minimum standards of treatment have not been met, such as the execution of minors or the mentally ill. The United States, as one of the most prominent retentionist states, found itself an early and frequent recipient of such démarches, beginning in December 1998 when the Austrian EU presidency sent a letter to then Texas Governor George W. Bush in the case of Faulder v. Texas. The pretext was the failure of the Texan authorities to provide Canadian authorities with consular access to Stan Faulder, a Canadian rather than European citizen, in contravention of their obli-gations under the Vienna Convention on Consular Relations.16
Since this initial approach, the EU has démarched US federal and state authorities on dozens of occasions and has castigated the United States in public declarations and at meetings of international organisations such as the Organisation for Security and Cooperation in Europe. It has also filed amicus curiae briefs in death-penalty cases before the US Supreme Court. These actions have generated occasional minor frictions in US–EU relations and in US rela-tions with individual EU countries. The most prominent occasion on which the issue intruded into US public consciousness was in June 2002 when the German government threatened to withhold evidence against al-Qaeda terror-ist Zacharias Moussaoui should he face the death penalty.17 This helped raise public awareness in the United States of the EU position on extradition, but rather than pursue confrontation, Washington acceded to European realities and in June 2003 signed a treaty with the EU agreeing not to seek the death penalty in murder cases in which extradition is being sought from an EU country.
The United States is not the only country that has been targeted by EU representations. Japan, China and other countries where the death penalty is still imposed have also received their share of criticism. But the United States has clearly been singled out for special attention, with the EU decrying the fact that America, which ‘has risen upon the principles of freedom, democracy, the rule of law and respect for human rights’,18 continues to pursue such an immoral practice. The drumbeat of EU criticism of US policy at the Organisation for Security and Cooperation
The US has clearly been
singled out for special attention
Dow
nloa
ded
by [
Nor
thea
ster
n U
nive
rsity
] at
00:
55 1
1 O
ctob
er 2
014
128 | John R. Schmidt
in Europe and in other forums, and the European penchant for raising indi-vidual cases, both in these forums and directly with US authorities, resembles nothing so much as US practice toward the Soviet Union during the Cold War. The United States habitually criticised Soviet human-rights practices and raised individual cases of concern both in human-rights forums and directly with the Soviets. One of the ironies of the current situation is that, during the Cold War, many of these same European allies were initially reluctant to raise the cases of specific Soviet human-rights victims such as Andrei Sakharov and Anatoly Sharansky, and had to be prodded by Washington to do so.
In considering the motives behind this behaviour it is useful first to consider what it is not. It is not the result of a groundswell of popular indignation about the death penalty on the part of European publics. As periodic polls show, many ordinary Europeans, perhaps even a majority, still favour the death penalty, at least in certain cases. It is, rather, an elite issue. This is a point more or less conceded by the EU, which, in one of its publications, notes that in a number of EU countries ‘the political decision towards abolition was not taken with the support of the majority of public opinion’.19 The same publication goes on to emphasise, however, that in these countries ‘the decision did not result in any form of negative reaction, usually leading to minimal debate on the issue’. It further notes that the decision may even have helped to change minds on the subject. But the real point that seems to emerge here is not that ordinary Europeans are for or against the death penalty but that they do not have really strong feelings on the issue. This is not surprising, in view of the relatively low murder rate in EU countries as well as the fact that the death penalty had fallen into disuse during the several decades before it was finally abolished.
But what is not explained is why European political elites, who shape and administer EU policy, came to feel so strongly about the issue, strongly enough to make it the centrepiece of EU international activism on human rights. In many cases the answer is no doubt conviction. Over the past quarter-century Amnesty International has been highly effective in putting the issue on the European political map. The Amnesty campaign both convinced and attracted support from politicians, primarily but not exclusively on the left, who also took up the cause. The European Parliament, in particular, became a hotbed of support, putting pressure on EU member governments and institutions to back abolition. Supporters were effective in portraying the abolition of capital punishment as the logical next step in the ‘progressive development of human rights’.20 Their activ-ism proved more than adequate to bring along their less committed colleagues who, like their ordinary European constituents, may not have felt particularly strongly on the issue, and certainly not strongly enough to resist.
Dow
nloa
ded
by [
Nor
thea
ster
n U
nive
rsity
] at
00:
55 1
1 O
ctob
er 2
014
The EU Campaign against the Death Penalty | 129
It is one thing, however, to support abolition of the death penalty within the EU. It is quite another to make this an important element of EU foreign policy. While abolitionist zeal on the part of committed activists no doubt played a role here, it is far from the whole story. The death penalty is an EU issue and it must be understood in the context of the development of the organisation. The key element in this process has been the willingness of member states to surrender various aspects of their national sovereignty to the EU across the full spectrum of governance. This effort to construct a multinational entity bearing aspects of a supranational state has forced European political elites to confront the ques-tion of what exactly the EU is for. Is it simply a vehicle for generating economic prosperity and preventing the return of fratricidal interstate conflict through political integration, or should it represent something more? In looking at the record, from the early effort to accede to the European Convention on Human Rights, to the decision to abolish the death penalty within the EU, through the creation of their own Charter on Fundamental Rights, and in their decision to make the death penalty a foreign-policy issue, it is clear that the architects of the EU decided it should be something more. They decided, specifically, to build a moralising element into their developing polity. An EU publication put it this way in explaining why the EU believed it needed a Charter of Fundamental Rights:
A Charter … is needed now because the European Union has entered into a new and more resolutely political stage of integration. The Charter is a very important milestone on the road towards this political Europe, which is developing into an integrated area of freedom, security and justice, and which is the logical outcome of the very concept of European citizenship. Essentially, it serves to anchor the political and moral legitimacy of this political Europe, both for its citizens and vis-à-vis the political establishment, governments and national authorities, as well as economic and social players. It expresses the shared values which inspire the very essence of our democratic societies.21
Although this suggests that the architects of the EU believed that putting the EU on a moral footing was critical to legitimising it, it does not explain how this worldview, so different from the realpolitik of the European past, came into being. As in most complex developments, there were multiple causes. The desire to explicitly reject the extreme nationalism and realpolitik that char-acterised Europe before the Second World War and led it down the road to death and destruction clearly played a role. This carried with it a visceral and
Dow
nloa
ded
by [
Nor
thea
ster
n U
nive
rsity
] at
00:
55 1
1 O
ctob
er 2
014
130 | John R. Schmidt
widely shared reaction against the use of violent means to settle disputes. Also instrumental was the influence of an active and effective civil society, exempli-fied by Amnesty International and similar groups, which acted as an external conscience in Europe during the Cold War and beyond. But as, and perhaps even more, important was the example of the United States, which presented Europeans with a model for organising a state around political principles and building moralistic proclivities into both its domestic and foreign policy.
The United States was able to serve as an example because its moralising nature and sense of moral purpose were on constant and active display during the Cold War, if not before. This did not mean that Europeans necessarily shared most or all of the values associated with American political culture or projected by the United States in its foreign policy. European elites, particularly but far from exclusively on the left, tended to look askance at various aspects of US society, including its high crime rate, its lingering racism and its strong commit-ment to laissez-faire economics, which they believed generated wealth at the cost of extreme income inequality. But what they did assimilate was the idea of organising and legitimising government on the basis of moral principles and thrusting these values forward in the international arena. This was particularly important in legitimising the construction of an overarching political entity like the EU, which could not as easily appeal to traditional European sources such as ethnicity and shared culture, since these had been the wellsprings of the nationalisms that had repeatedly torn Europe apart. By the time that Lipset was writing American Exceptionalism, the Europe he sought to contrast to America had already largely disappeared and was in the process of being replaced by a new entity as given to moralising as the United States.
But why, even so, would the EU have decided to make abolishing the death penalty the poster child for its effort to bring morality to EU foreign policy? Here, elements of prestige enter the mix. From the outset, EU ambitions were more than simple supererogatory impulses aimed at making the world a better place for all mankind, including convicted murderers. The EU also wanted to be a major player on the world stage. This was why it scrambled to take the dip-lomatic lead as Yugoslavia disintegrated in the early 1990s, when the ink was barely dry on the Maastricht treaty. This was why the EU decided to develop a military European Security and Defense Identity of its own rather than relying exclusively on NATO. The decision in 1998 to begin a global campaign against the death penalty can be seen in much the same light. Abolition was chosen not simply because it was a topical issue in Europe, nor because it helped to put a distinctive moral stamp on EU foreign policy. It was also a prestige issue, because it enabled the EU to seize the moral high ground from the United
Dow
nloa
ded
by [
Nor
thea
ster
n U
nive
rsity
] at
00:
55 1
1 O
ctob
er 2
014
The EU Campaign against the Death Penalty | 131
States, which, despite its own pretensions to moral superiority, still continued to perpetuate what European elites had persuaded themselves constituted a self-evidently immoral practice.
By any standard, the EU campaign has been fairly successful. Since its launch almost a decade ago more than 20 countries in Europe and beyond have abolished the death penalty. Although the United States is not among them, the EU can probably take some credit for the decisions by the US Supreme Court to outlaw the death penalty for minors and the mentally retarded. In its decision in the former case the majority cited international opinion as one of the factors of consideration.22 US officials have found it difficult to respond to either EU démarches or to international bodies such as the Organisation for Security and Cooperation in Europe, not because officials regard US practices as inde-fensible but because it is almost exclusively a state rather than federal issue and US states differ on the matter. This means that US officials cannot attempt to justify or condemn the practice on moral grounds. They are left with little choice but to explain the complexity of the US federal system and differences in practice among state jurisdictions. This contrasts with the reaction of officials from other retentionist countries like Japan, who typically make no apologies for their fellow citizens’ overwhelming support for the practice.
While it is unclear where the EU campaign may eventually lead, it is quite clear that it has become the cutting edge of EU efforts to adopt a moralist stance in its foreign policy. It would be a mistake, however, to conclude that preventing the execution of convicted murderers is all that the EU stands for. The Charter on Fundamental Rights is an effort to define a broader vision similar to, but more far ranging than, the US Bill of Rights. It not only outlaws the death penalty, but forbids torture, human cloning and most forms of discrimination, while guaranteeing a wide range of political, social and economic rights. The EU has also been active in campaigning against trafficking in persons and in promot-ing democracy more generally. In an important sense, the death penalty was a target of opportunity that the EU seized on to provide it with a visible and, in its own mind, progressive profile on human rights. It reflects the intent, indeed the determination, of European elites to base the EU on political and moral prin-ciples, much as the United States has done, and to pursue these principles in their foreign relations.
This development goes well beyond both the death penalty and the Charter on Fundamental Rights. As Robert Kagan observed,23 the EU has also increas-ingly come to stand behind and for certain principles in international relations.
The EU campaign
has been fairly successful
Dow
nloa
ded
by [
Nor
thea
ster
n U
nive
rsity
] at
00:
55 1
1 O
ctob
er 2
014
132 | John R. Schmidt
As noted earlier, the inhumane destruction wrought by the Second World War helped spur initial European efforts to abolish the death penalty. But Kagan makes the broader claim that the experience ingrained in Europeans a reluctance to sanction violence or use force to settle disputes more generally. European elites seized on European integration as a means to ensure that they would never make war on one another again. As Kagan observes, this provided them with a template for organising international affairs more generally, with nations subordinating themselves to international organisations such as the United Nations. The desirability of settling disputes through negotiation and avoiding recourse to violence is a key component. It is at this point that the campaign to abolish the death penalty worldwide comes into contact with the broader commitment of the EU to what Kagan calls a Kantian world order, in which nations relinquish elements of their sovereignty to global government. From the European perspective, establishment of a Kantian world could be said to present progress in the conduct of international relations in the same way that abolishing the death penalty represents progress in human rights.
So it is that the EU has entered the lists as a second moralising presence in international affairs. Although it shares this moralistic orientation with the United States, together with specific values such as commitment to democratic principles, a market economy and human rights, it has a significantly differ-ent vision. Both Kagan and Lipset note that the United States is more prone to viewing international affairs in Manichean terms and to using, or threatening to use, force to solve international problems. To paraphrase Kagan, the United States sees itself as living in a dangerously chaotic Hobbesian world, where the good contend against the bad. Although there is clearly a role for multilateral organisations in such an environment, nations must ultimately look to their own defences. The European vision is substantially different, but solidly grounded in moralising impulses about the way in which the international order should be constructed. Although the United States is more likely to perceive interna-tional actors in terms of black and white, it would be a mistake to conclude that America is more judgemental. Europeans may be more tolerant and less confrontational in dealing with so-called rogue states, but this flows naturally from their views about how the international system should be ordered. Their emphasis on solving problems through engagement and negotiation in inter-national affairs is consistent with their domestic views on punishment, where rehabilitation and parole are the primary objectives of incarceration.24 Where they seem more overtly judgemental, as in dealing with the United States on the death-penalty issue, it is because the United States is a peer whom they believe should know better.
Dow
nloa
ded
by [
Nor
thea
ster
n U
nive
rsity
] at
00:
55 1
1 O
ctob
er 2
014
The EU Campaign against the Death Penalty | 133
Although the death-penalty issue says something important about the world-view of European political elites, it is unlikely to become more than a minor irritant in US–European relations. Of greater concern is the more far-reaching turn it reflects toward moralising in EU foreign policy. US and European world views have already come sharply into conflict over issues like the International Criminal Court. Differences over Iraq and potentially Iran also stem from the same basic difference in approach. While differences also exist between and among European nations on how to handle such issues, the long-term trend is clear, and likely to make cooperation between the United States and Europe in addressing international issues at least marginally more difficult over time. While there is still much more that unites the United States and Europe than divides them, it is important for each side to understand the basic moralising impulses that motivate the other. The death penalty may be a small issue in the great affairs of state, but it speaks volumes about the differences between the two societies.
Notes1 Seymour Martin Lipset, American
Exceptionalism (New York: W.W. Norton & Company, 1996), pp. 63–7.
2 European Commission, The EU’s Human Rights and Democratisation Policy, http://ec.europa.eu/external_relations/human_rights/intro/index.htm.
3 The death penalty is currently legal in 36 states and banned in 12. Supreme courts in two additional states, New York and Kansas, have ruled existing laws unconstitutional. The federal government also retains the death penalty for a number of federal crimes such as murder on fed-eral property. Public opposition to the death penalty grew during the 1960s, resulting in a decade-long unofficial nationwide moratorium beginning in 1967. In its 1972 Furman v. Georgia decision, the US Supreme Court placed restrictions on the ‘arbitrary and capricious’ implementation of capital punishment. During the next four years, 37 states passed death-
penalty legislation designed to meet the conditions imposed by Furman v. Georgia, most often by separating the guilt-finding from the penalty phases of a trial. In three 1976 cases the Supreme Court sanctioned this approach and ruled specifically that the death penalty per se was not unconstitutional. This paved the way for the resumption of executions, which grew steadily throughout the 1990s, peaking at 98 in 1998, but diminishing gradually thereafter to 60 in 2005 and 53 in 2006. Although support for the death penalty fell to just under 50% during the late 1960s, an ABC News/Washington Post poll in June 2006 revealed that 65% currently favour the practice.
4 European Union, ‘Death Penalty Video (2007)’, European Policy and Action on the Death Penalty, http://www.eurunion.org/legislat/ deathpenalty/deathpenhome.htm.
5 Novatris, ‘Le Talk De Paris’, December 2006, http://www.novatris.com/news/
Dow
nloa
ded
by [
Nor
thea
ster
n U
nive
rsity
] at
00:
55 1
1 O
ctob
er 2
014
134 | John R. Schmidt
pubs/Novatris_France24_Emission_du_22_d%C3%A9cembre.pdf, p. 30.
6 Http://en.wikipedia.org/wiki/Use_of_capital_punishment_by_nation.
7 William A. Schabus, The Death Penalty in International Human Rights Law (Cambridge: Cambridge University Press, 1997), pp. 214–28.
8 Ibid., pp. 229–30.9 Ian Manners, ‘Normative Power
Europe: A Contradiction in Terms?’, Journal of Common Market Studies, vol. 40, no. 2, June 2002, p. 251.
10 Schabus, Death Penalty, pp. 233–8.11 Amnesty International,
Abolitionist and Retentionist Countries, http://web.amnesty.org/pages/deathpenalty-countries-eng.
12 Manners, ‘Normative Power Europe’, p. 246.
13 Ibid.14 European Parliament, Charter of
Fundamental Human Rights of the European Union, http://www.europarl.europa.eu/charter/default_en.htm.
15 European Council, Guidelines to EU Policy Towards Third Countries on the Death Penalty, http://www.eurunion.org/legislat/DeathPenalty/Guidelines.htm.
16 Manners, Common Market Studies, p. 248.17 Peter Finn, ‘Germany Reluctant to
Aid Prosecution of Moussaoui’,
Washington Post, 11 June 2002, http://www.washingtonpost.com/ac2/wp-dyn/A28405-2002Jun10?language=printer.
18 European Union, Delegation of the European Union to the USA, ‘EU Memorandum on the Death Penalty’, http://www.eurunion.org/legislat/deathpenalty/eumemorandum.htm. This was a special EU memorandum presented to the US delegation in November 2000.
19 Ibid.20 European Council, Guidelines on Death
Penalty.21 European Commission, Justice
and Home Affairs, ‘The Charter of Fundamental Rights: Frequently Asked Questions’, http://ec.europa.eu/justice_home/unit/charte/en/faqs.html.
22 US Supreme Court, Roper v. Simmons, 1 March 2005, p. 24, http://www.supremecourtus.gov/opinions/04pdf/03-633.pdf.
23 See section on the origins of modern European foreign policy in Robert Kagan, ‘Power and Weakness’, Policy Review, no. 113, June–July 2002, http://www.hoover.org/publications/ policyreview/3460246.html.
24 European Union, Delegation to USA, ‘EU Memorandum’.
Dow
nloa
ded
by [
Nor
thea
ster
n U
nive
rsity
] at
00:
55 1
1 O
ctob
er 2
014
