Diplomatic Pouch / November 6, 2014
By Larry Luxner
Seminars and think-tank events in which U.S. officials analyze human rights abuses in this or that Third World country are a dime a dozen in this town. But last month, the European Union turned the tables on Washington with its sponsorship of a conference aimed at abolishing the death penalty in the 32 states where it’s still practiced.
An EU Rendez-Vous event at the Dutch ambassador’s residence Oct. 21 attracted 60 people opposed to capital punishment. Organized by the EU’s delegation here along with the British, Dutch and Swedish embassies, it featured four activists who are leading efforts to ban what Brussels calls “an inhuman punishment that represents an unacceptable denial of human dignity and integrity.”
João Vale de Almeida, the EU’s top envoy here, said abolishing the death penalty worldwide is “a major goal” of the 28-member club of nations.
“In order to become a member state of the EU, you cannot have the death penalty. It’s as simple as that,” he said. “In fact, you don’t find it anywhere in Europe, not even in the Russian Federation. Only Belarus still has this procedure.”
Arguing that the EU is “entitled” to lecture Washington on this particular issue, the Portuguese diplomat said not a single execution has taken place in any member state in the past 17 years. “We practice what we preach, but we believe we should go on preaching, because this is about human rights — and it’s too late to correct mistakes when you apply the death penalty.”
Misty Thomas is director of the American Bar Association’s Death Penalty Due Process Review Project. She said that in the last decade, six states and 18 foreign nations have abolished capital punishment. And of the 32 states where it’s still on the books, three have governor-imposed moratoriums, and four more have de facto moratoriums due to pending litigation.
Yet 3,049 inmates are currently on death row, led by California (745), Florida (404), Texas (277) and Alabama (202). Since 1976, state and federal authorities have carried out 1,389 executions, with the peak year being 1999, which saw 98 people put to death. Since then, the numbers have fallen off rapidly, dropping to 39 last year and only 30 so far in 2014.
“Public support for the death penalty is on the decline. That’s a major change on the landscape,” said Thomas, moderator of the EU panel. “One of the biggest news items has been the problem of terribly botched, painful executions and a turn towards secrecy.”
Richard Dieter, executive director of the nonprofit Death Penalty Information Center, thanked the EU for its opposition to capital punishment, which he said gives his movement added credibility.
“The United States is rightfully seen as a death penalty country, but we who live here know there’s a fuller picture. Actually, only a small minority of the U.S. regularly practices the death penalty,” he said. “Only seven states have carried out executions this year, and most of our death row cases come from only 2 percent of our counties.”
Dieter said the early 1990s were “a very dark period” when he started working on this issue. In 1998, U.S. courts handed down a record 294 death sentences. In 2012 and 2013, by comparison, only 79 death sentences were issued — the lowest in decades.
“What happened? As the number of executions was increasing, the people who do the litigation and fought each one were able to expose some of those cases as incredible mistakes,” Dieter said. “Some of these people shouldn’t have even been convicted. New tools like DNA testing became available, and the idea that we might occasionally be executing innocent people moved from the theoretical to the real.”
Maryland, which abolished the death penalty after 35 years, executed only five people in all that time — “and it cost over $100 million to do that,” he said. “It’s not making sense from a practical perspective.”
Dieter added: “The death penalty’s foundation is that it will deter people from committing crime, while bringing justice and retribution to victims’ families. But 35 executions in a country with 15,000 murders a year doesn’t make any difference. It’s becoming less defensible. We don’t just see the numbers falling, we see this as the final chapter of the death penalty in America.”
Sarah Turberville, whose Constitution Project doesn’t take a position on the death penalty, said executions took a dramatic leap after the 1994 passage by Congress of a sweeping crime bill, and the 1996 Anti-Terrorism and Effective Death Penalty Act of 1996, which she said “dramatically limited the ability of death-row inmates to have a federal court hear their claims.”
Prior to enactment of the 1996 act, she said, “almost 60 percent of death penalty inmates were seeing their sentences reversed because of some serious error that had occurred at trial.” But then the pendulum swung back the other way several years later, “a recognition of people involved in that very system who recognized we had gone too far.”
She said one of those active in the fight against capital punishment is a former attorney-general of Virginia who oversaw 36 executions.
“They’re concerned with how this looks now,” she said. “This is an opportunity for these people to atone for their past sins.”
Since 2009, the EU has awarded $4.8 million to seven organizations fighting the death penalty in the United States. These including leading abolitionist NGOs like the Death Penalty Information Center, the National Coalition versus the Death Penalty, Reprieve, Witness to Innocence and Equal Justice USA.
In December 2011, the EU went a step further, by placing export controls on sodium thiopental and other drugs that could potentially be used for executions. Consequently, states using the death penalty have been forced to alter their execution protocols — a development that has led to legal challenges over whether a single injection is considered “cruel and unusual punishment” under the U.S. Constitution.
This past July, an Arizona inmate named Joseph Wood suffered for nearly two hours before dying of a lethal injection — which was the method used in 1,214 of the 1,389 executions carried out since 1976 (of the remaining executions, 158 involved electrocution, 11 took place in a gas chamber, three were hanged and three were shot by firing squad).
“The Europeans have taken a lead in restricting access to departments of corrections for drugs intended to heal people for killing people. That has had an extraordinary impact on the pace of executions,” said Turberville. “It’s certainly put states that try to obtain drugs for executions, and to shield the origin of those drugs, in a difficult position. They have sought to shield that information from the public, which raises a whole specter of new questions about the legality of that process.”
While the pace of executions has slowed nationwide, two states — Missouri and Florida — have seen a dramatic jump in the number of death sentences carried out.
“There’s no real accountability or backlash for politicians who are willing to continue using the death penalty as a political tool,” she said. “In Missouri, we have a governor who was previously the attorney general. Between then and now, he’s overseen 70 of the 77 executions in that state. And in Florida — in the same year that Maryland repealed the death penalty — Gov. Rick Scott signed the Timely Justice Act, whose stated purpose is to speed up the execution process.”
Diann Rust-Tierney, an activist with the National Coalition Against the Death Penalty, pointed out the racial component to executions.
According to recent studies, jurors in Washington state are three times more likely to recommend a death sentence for a black defendant than for a white defendant in a similar case. In Louisiana, the odds of a death sentence were 97 percent higher for those whose victim was white than for those whose victim was black.
Furthermore, a study in California found that those who killed whites were over three times more likely to be sentenced to death than those who killed blacks, and four times more likely than those who killed Latinos. Finally, a comprehensive study of the death penalty in North Carolina found that the odds of receiving a death sentence rose by 3.5 times among those whose defendants were white.
According to NCADP, some 4 percent of defendants who are sentenced to die are likely innocent. Perhaps this is why support for the death penalty has dropped from 78 percent in 1996 to 55 percent in 2013, though a dramatic drop in violent crime could also explain the trend.
Rust-Tierney praised Maryland Gov. Martin O’Malley for leading the fight against the death penalty in his state. In May 2013, O’Malley signed a bill repealing capital punishment for future offenders — ending a practice that had been enshrined in Maryland law since 1638.
‘The public wants leadership and policymakers who have integrity,” she said. “They’re not going to fault someone who says he’s opposed to the death penalty from a moral or practical perspective.”