Countries Condemn Penalty of Death

West Germany attached a condition to considering a recent U.S. request for extradition of an alleged terrorist charged with murder. The Germans told the State Department that they would decline to grant extradition unless the United States would promise not to impose the death penalty. America so promised.

The Federal Republic of Germany, which years ago abolished the death penalty, declines to cooperate in any activity by other countries that might enable imposition of that penalty. The extradition episode points up a significant difference between the United States and other nations that Americans have long considered as “part of the family.” Although we Americans consider ourselves, along with other democratically governed peoples, as possessing the bonds of community--holding the same general values and cooperating to fulfill the same aspirations--in one particular we are different, indeed almost unique. For among the world’s democracies, the United States stands almost alone in invoking the avenging “eye for an eye” archaism, punishing murder by allowing the society to kill the murderer.

There is here a striking irony, of the United States requesting that Germany extradite an accused for possible extermination, and West Germany refusing unless the United States promised to refrain from taking that life. It is we who hold nearly 2,000 prisoners for the extermination engines. It is we who now practice the idea of selective obliteration.

The pace at which the international community of democracies is determining that the death penalty be abandoned is astounding. Amnesty International advised, in 1982, that 26 countries did not permit imposition of the death penalty for any crime. Within Europe alone, 12 nations--Austria, Denmark, Finland, West Germany, France, Iceland, Luxembourg, the Netherlands, Norway, Portugal, Sweden and the United Kingdom--had totally abolished the penalty. In 1982, another 15 countries permitted the use of the death penalty only for “exceptional” crimes, i.e., crimes under military law or crimes committed in exceptional circumstances such as wartime.

However, capital punishment was widespread, even in the democracies, in 1982. Two large federated countries, the United States and Australia, were split jurisdictionally; some member states kept the death penalty while others had abolished it.

And in several European countries, the laws then provided the death penalty even for ordinary crimes: Albania, Bulgaria, Czechoslovakia, East Germany, Hungary, Liechtenstein, Poland, Roumania, Turkey, the Soviet Union and Yugoslavia--also Ireland, Belgium and Greece.

The new Amnesty International 1986 report demonstrates some spectacular ongoing changes. Australia, in 1985, totally abolished the death penalty, leaving the United States as the only federated country with divided jurisdictions on that subject. More broadly, starting from 1975, the new report advises that in “recent years, at least one country a year has abolished the death penalty in law or, having earlier done so for ordinary offenses, has gone on to abolish it for all offenses.”

In 1975, Mexico abolished the death penalty for ordinary offenses. In 1976, Canada abolished it for ordinary offenses. In 1977, Portugal abolished it for all offenses. In 1978, Spain abolished it for ordinary offenses. In 1979, Luxembourg, Nicaragua, and Norway abolished it for all offenses. In that same year, Brazil and Fiji abolished it for ordinary offenses. (Brazil had abolished the death penalty in 1882 but reintroduced it in 1969 while under military rule.) In 1980, Peru abolished it for ordinary offenses. In 1981, France abolished it for all offenses. In 1982, the Netherlands abolished it for all offenses. In 1983, Cyprus and El Salvador abolished it for ordinary offenses.

Argentina had abolished the death penalty for all offenses in 1921 and again in 1972 but reintroduced it in 1976 following a military coup. In 1984, Argentina abolished it for all offenses.

The report also presents evidence that while the democracies proceed toward abolition, the tyrannies maintain and even accelerate capital inflictions:

“An international treaty prohibiting the death penalty in peacetime came into force in Western Europe after it was ratified by five countries (Austria, Denmark, Luxembourg, Spain and Sweden, since joined by France). Nine other countries have signed the treaty but not yet ratified it.”

But:

“Countries still putting people to death in 1985 included South Africa (137 confirmed executions), Saudi Arabia (at least 45), and Pakistan (at least 57).”

The forgoing facts invoke a far-reaching American constitutional principle. A landmark decision by the United States Supreme Court in 1958, Trop vs. Dulles, held that the meaning and scope of the Constitution’s Eighth Amendment rule against “cruel and unusual punishments” shall depend on “evolving standards of decency.” The actual language bears reading: “The (Eighth) Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” In other words, as the “standards of decency” rise, the ban on what is “cruel and unusual” widens. How to know whether that ban strikes down the death penalty? Determine whether the evolving standards of decency have, in the “maturing society,” eliminated the death penalty’s use. If the answer is “yes,” then strike down capital punishment as unconstitutional because it is “cruel and unusual.” Simple.

But which “maturing society” would supply the standard? Shall the court find its answer by looking to all states in the world? To all democratic states? To all the United States? To the dozen states of the United States that permit the penalty? One cannot reasonably consult the whole world and all the countries in it because standards among nations vary so widely. Some abhor the death penalty; some avoid it except for military crimes. Some use it for crimes such as murder; some use it even to punish adultery. And some inflict it by means which deliberately apply torture before death arrives. The world can give us no standard, only confusion.

Nor can a rational answer come by consulting the states of the United States, because they differ in determining whether capital punishment comes within the scope of decency or, in effect, the scope of cruelty. Moreover, it is the U.S. death penalty that is to be tested. To go to the United States for the standard is like checking the accuracy of a yardstick by measuring it against its image in a mirror. One cannot reliably test anything by comparing it with itself. One needs an independent criterion.

The way to test is to look to other democratic countries and find out whether they have come to a consensus that will supply a standard. Until recently, even that method was unusable, for the laws among the democracies were widely diverse, in sharp disagreement regarding the death penalty.

But now that most of the democratic nations have come to a common conclusion, the Supreme Court could draw such a standard, uncontaminated by the alien practices of tyrannical, bloodthirsty or fanatical peoples--or their rulers. One would look to countries that maintain universal-suffrage elections, permit competing political parties, guarantee free speech and press, avoid any law or policy condoning torture, avoid oppressing minorities and extend equal protection of the laws to all regardless of religion, sex, race, or ethnic background.

The standard of decency coming from the world’s maturing democracies is precisely what the United States Supreme Court, in 1958, adopted as the way to determine the legality of a punishment under the Eighth Amendment. The justices first laid out the general principle that would control:

“The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the state has the power to punish, the amendment stands to assure that this power be exercised within the limits of civilized standards. The court recognized . . . that the words of the amendment are not precise, and that their scope is not static. The amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

It happens that in Trop they were testing whether another penalty, that of

punishing a U.S.-born citizen by revoking his citizenship and turning him into “a man without a country” was legal, or rather a cruel and unusual punishment because it violates the standard of decency. The court made very clear where it got the standard. Wrote the justices: “(Denationalization) is a form of punishment more primitive than torture, for it strips the citizen of his status in the national and international political community.”

Thus the test prescribed and applied in Trop proceeds by determining whether the international community of democracies opposes the imposition of such a fate.

From the other democracies’ progressive ouster of capital punishment--and from the scope and meaning of the Eighth Amendment’s ban on cruel and unusual punishments under a standard “of decency which marks the progress of the democracies”--the death penalty qualifies for elimination as “cruel and unusual.”

If the rule of the 1958 Trop decision requires us to look to the community of democracies, then under Trop our courts should now conclude that the Eighth Amendment requires abolition of the death penalty in the United States.

West Germany’s message to America is a clear signal that we stand outside the international democratic community, almost alone in continuing to practice capital punishment.

No man is an island, wrote John Donne. The next lesson, that no democracy is an island, has--by the court selecting an international community of democracies as the standard--become part of U.S. law. Were the Supreme Court to apply that standard again, it would be deciding that America should catch up with the rest of the family.

This democracy would then be rejoining that larger, worldwide society of democracies for which it is, perhaps more than any other country, the founding member.