To Punish Genocide With Death Is Overkill : Crime bill: Congress’ flight of fancy on capital punishment runs counter to other democracies’ experience.

Nothing so clearly illustrates the “ship of fools” character of the federal crime legislation just passed by the Senate as the provision that attaches a federal death penalty to the crime of genocide. This response to genocide is so perfectly wrong, so contrary to government protection of human rights, that it can serve as a valuable education tool. But it is also not that far from typical of the bucketful of undocumented and half-baked provisions that attached themselves like ideological barnacles to the crime bill.

One striking thing about the genocide death penalty is its irrelevance to crime. But this is true of much in the Senate crime bill. To be sure, no one will be sentenced to death for genocide if this provision becomes law, but most of the multitude of death penalties on the new legislation will never be used either. And much of the rest of the crime bill is primarily rhetorical in impact.

Only Sen. Alfonse D’Amato’s unsuccessful proposal to effect a wholesale transfer of ordinary violent crimes form state to federal jurisdiction would have provided study customers for a federal executioner. All the rest of the capital-punishment provisions are intended mainly to fight crime by roundly condemning it. And here also lies the rationale for the death penalty for genocide. After all, what offense is more deserving of condemnation than genocide? So even if the crime bill concerns Cleveland and not Sarajevo, what would be wrong with recognizing the horror of ethnic cleansing with a little legislative jawboning?

The problem is that using a death penalty to combat abuse of human rights is like fighting fire with napalm. Only those governments that show dangerously low respect for human rights conduct executions these days. The major practitioners are China, Iran and Iraq; none is regarded as friendly to the rights of ethnic minorities. All of the industrial West except for the United States has abolished the hangman as a step toward achieving human-rights restraint in criminal justice. ?? The enemies of genocide are enemies, too, of execution, and for the same reasons.

No more telling recognition of the death penalty’s reputation as a threat to human rights can be found than in the determination of those governments that overthrow tyrants to abolish the executioner. The first two major European nations to reject the death penalty after World War II were Germany and Italy. The same pattern played out after the collapse of the communist empire. Liberal regimes quickly rejected the death penalties of their totalitarian predecessors in Hungary, Czechoslovakia and Romania. The first solid evidence that the white government of South Africa was serious about human rights was its suspension of hangings in 1989.

The champions of democracy all over the world know that a government tradition of restraint in criminal justice is both a more powerful and more coherent way to prevent genocide than using killing as an instrument of government policy.

So the problem with executions as a human-rights guarantee is neither subtle nor difficult to discover. Six hours in the library or a short chat with the folks at Amnesty International would have done the job. But that kind of research is not popular in Congress just now. Indeed, the entire legislative process on crime seems information-proof.

The same combination of naivete and haste that produced panic drug legislation in the 1980s is dominant in the crime bill. Major shifts in federal-state relations are designed on cocktail napkins and mixed into the legislative witch’s brew without any premeditation. Proposals of significant change are disposed of not one at a time, but by the bushel. For Congress, crime legislation in a season of haste has once again become a spawning ground for the irrational.