CONSIDERING THE DEATH PENALTY WITH WILLIAM SCHABAS...
A Panel Discussion with William Schabas, Director of the Irish Centre for Human Rights at the National University of Ireland, where he also holds the chair in human rights law. Professor Schabas is the author of twelve books dealing in whole or in part with international human rights law, including the death penalty and has published more than 100 articles in academic journals, principally in the field of international human rights law. Professor Schabas is also editor-in-chief of Criminal Law Forum, the quarterly journal of the Society for the Reform of Criminal Law.
Published by Globalbeat (an independent news syndicate affiliated with New York University). (April 2003)
Background on The National Debate Tournament
The intercollegiate policy debate community explores the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the Abolition of the Death Penalty
Thousands of college debaters and coaches across the United States have been researching the Second Optional Protocol on the Abolition of the Death Penalty to prepare for debate tournaments where they compete in discussions about foreign policy. These academic discussions have focused on the 2002-2003 national intercollegiate policy debate resolution, which calls on the U.S. to ratify certain international treaties:
"Resolved: that the United States Federal Government should ratify or accede to, and implement, one or more of the following: The Comprehensive Nuclear Test Ban Treaty; The Kyoto Protocol; The Rome Statute of the International Criminal Court; The Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the Abolition of the Death Penalty; The Treaty between the United States of America and the Russian Federation on Strategic Offensive Reductions, if not ratified by the United States."
Since this topic was selected by national vote in the summer of 2002, hundreds of American debate tournaments have been held at colleges and universities from Boston College to Pepperdine.
The season finale will take place April 3-7, 2003, when Emory University will host eighty different teams at the National Debate Tournament in Atlanta, Georgia.
Several debaters and coaches recently interviewed international human rights law expert William Schabas and generated a written transcript of the interview. The transcript is designed to inform contest round debates at the National Debate Tournament and to enrich wider public discussion by presenting readers of the Global Beat website with a novel exploration of U.S. human rights policy that unfolds in interview format, where Professor Schabas takes positions on key questions relating to the death penalty and human rights:
Is the current gradualist approach working for abolition?
--"Approaching abolition in terms of stages has been a positive step and has moved forward the abolitionist agenda rather than set it back."
--"[People in China believe] abolition is just a value that is consistent with Developed economies; it is something that will happen inevitably with development."
--"I have colleagues…who don’t like things like the moratorium that was implemented in Illinois and perhaps a few other states. They said ‘well that is terrible because all you do there is fine tune the death penalty to allow it to survive better, and I do not really think that is the case. I think that chipping away at it through various refinements or improvement of it is actually a very positive development."
What are the prospects for abolition in the United States?
--"I have always felt that the most hopeful route for abolition in the United States was through a Supreme Court decision."
--"This issue does not lend itself to a sane, healthy, public debate, and so better to go through what is in some ways an elitist route, which is the constitutional court. I would think it would be better if in the United States, if we could get 5 justices on the Supreme Court to do vote for abolition, it would be pretty hard to turn around."
--" My experience in talking with people is that the better informed they are, the more skeptical they are about its value and utility."
What role does international law play in abolition?
--"Sometimes executives and judges have emphasized international legal norms, and used those norms as justifications for taking the legal steps internally."
--"I think you would also find with respect to the death penalty, you would probably find a pretty broad consensus that the general norms in the Covenant of Civil and Political Rights in Article VI are universal…The US is just way out on a limb–essentially alone in the world now–[in] the execution of juveniles."
--"International human rights will certainly make a significant contribution to how things are unfolding within the US on this issue."
--"The changes in the death penalty since 1948, which is kind of a starting point for international human rights with the adoption of the Universal Declaration of Human Rights, and today, one of the most demonstrable areas of progress is the subject of capital punishment which is only referred to implicitly in the Universal Declaration of Human Rights."
PANEL MEMBERS FOR THE DISCUSSION ON THE DEATH PENALTY
William Schabas. Director of the Irish Centre for Human Rights at the National University of Ireland, where he also holds the chair in human rights law. Professor Schabas is the author of twelve books dealing in whole or in part with international human rights law, including the death penalty and has published more than 100 articles in academic journals, principally in the field of international human rights law. Professor Schabas is also editor-in-chief of Criminal Law Forum, the quarterly journal of the Society for the Reform of Criminal Law.
Geoff Garen. Senior debater at Northwestern University in Evanston, IL. He has won numerous team and individual speaking awards in tournament competition this year, and is gearing up for the National Debate Tournament next week.
Gordon Mitchell. Associate Professor of Communication and Director of Debate at the University of Pittsburgh in Pittsburgh, Pennsylvania. He specializes in public argument, rhetoric of science, and critical pedagogy. He is author of Strategic Deception: Rhetoric, Science and Politics in Missile Defense Advocacy, and also has had work appearing in the Bulletin of the Atomic Scientists, the Fletcher Forum of World Affairs, and on websites hosted by the Federation of American Scientists, Peace Research Institute Frankfurt, and International Security Information Service. Mitchell competed in tournaments as an undergraduate debater for Northwestern University during the 1980s.
Will Repko. Head Debate Coach at Michigan State University. Will's team is currently ranked fifth in the nation as it prepares to compete in the National Debate Tournament upcoming next week at Emory University in Atlanta, Georgia.
Maxwell Schnurer. Assistant Professor of Communication and Director of Debate at Marist University. Maxwell's scholarly work focuses on the rhetoric of social movements and debate pedagogy.
Eric Sullivan. Undergraduate at Gonzaga University in Washington State. Eric is pursuing a major in international relations and a minor in criminal justice. He just returned last week from a successful tournament at the Cross Examination Debate Association national championship in Tempe, Arizona, where he qualified for the elimination rounds.
The transcript editor is Damien Pfister, a graduate student in Communication at the University of Pittsburgh.
FULL TRANSCRIPT OF THE PANEL DISCUSSION
Gordon Mitchell: My name is Gordon Mitchell, Associate Professor of Communication and Director of Debate at the University of Pittsburgh. I am pleased to moderate today's interview, which is designed to link members of the intercollegiate policy debate community with the wider world of academic and political discourse.
In hundreds of debates held across the country this year, thousands of American college students have been debating the issue of capital punishment, focusing on the benefits and disadvantages of the United States ratifying and implementing the Second Optional Protocol to the International Covenant on Civil and Political Rights.
The debates have ranged over a series of issues, generating some questions that the academic literature on the Second Optional Protocol does not answer. Would an approach based in international law be the best way to abolish the death penalty in the United States, or would approaches rooted in domestic action be preferable? Is the endorsement of international moral norms a sign of cultural imperialism, or a much needed affirmation of universal human rights? What are the possibilities for the anti-death penalty movement during the "war on terror"?
In today's interview, we are extremely fortunate to have the opportunity to explore these questions and others with Professor William Schabas, director of the Irish Centre for Human Rights at the National University of Ireland, where he also holds the chair in human rights law. Professor Schabas is the author of twelve books dealing in whole or in part with international human rights law, including the death penalty and has published more than 100 articles in academic journals, principally in the field of international human rights law. Professor Schabas is also editor-in-chief of Criminal Law Forum, the quarterly journal of the Society for the Reform of Criminal Law.
We are grateful to Professor Schabas for participating in the interview today, and we are also lucky to have an excellent panel of questioners that features two current intercollegiate debaters and two debate coaches.
Our first questioner is Maxwell Schnurer, Assistant Professor of Communication and Director of Debate at Marist University. Maxwell's scholarly work focuses on the rhetoric of social movements and debate pedagogy.
Next, we are pleased to be joined by Michigan State University's debate coach William Repko. Will's team is currently ranked fifth in the nation as it prepares to compete in the National Debate Tournament upcoming next week at Emory University in Atlanta, Georgia.
Our next questioner is Eric Sullivan, a junior at Gonzaga University in Washington State. We would not be here today without Eric, since back in 2002, he co-authored the proposal calling for the intercollegiate policy debate community to make the topic of capital punishment a key focus of debate for the current season. At Gonzaga, Eric is pursuing a major in international relations and a minor in criminal justice. He just returned last week from a successful tournament at the Cross Examination Debate Association national championship in Tempe, Arizona, where he qualified for the elimination rounds.
Our final questioner is Geoff Garen, a senior debater at Northwestern University in Evanston, IL. He has won numerous team and individual speaking awards in tournament competition this year, and is gearing up for the National Debate Tournament next week.
Before we should proceed, I should mention that Damien Pfister has played a key role in planning and organizing this event. Damien is a graduate student of Communication at the University of Pittsburgh. He did a lot of good behind-the-scenes coordinating to organize the panel of questioners and devise the format for the interview. He is also the editor of the interview transcript.
Now, we are going to have two segments of questioning, each one covering a different umbrella for types of questions. The first segment that we will cover will feature questions concerning specific questions relating to the Second Optional Protocol itself, and also issues of international politics—in terms of international reaction to the United States remaining one of the last nations to hold out in abolishing capital punishment and ratifying the Second Optional Protocol. Then, after we cover that, we will move into the second part of the interview, where we will take more of a general focus and look at social movement tactics, and there we can cover general questions about the death penalty abolition movement and the role of scholarship and debate in connecting with the struggle.
Will Repko is going to start us off.
Will Repko: Does the "optional" nature of the protocol do a subtle disservice to the abolitionist agenda by reinforcing abolition as something less than imperative?
William Schabas: This was a choice that was made, quite overtly with the comparable European Convention on Human Rights, where there was a much sharper debate about whether to make it an optional protocol, or what would be called there an additional protocol or amending protocol. This would be optional only for the states that actually sign or ratify or accede to the Second Optional Protocol. It would not have been viable. What an amendment to this covenant would have done would have turned the clock back and started all over again essentially the process of ratification of the whole instrument and that would not have been viable. We are at a stage now where we have 145 or 150 states party to the International Covenant on Civil and Political Rights and that would not be the case if ratification in effect meant abolition of the death penalty as it states in Article I of the Second Optional Protocol. It’s a choice to make in how high to set the bar, and the current approach of human rights law has proven to work.
Compare this to the paradigm of the European human rights system, where you have a convention adopted in 1950 with a provision not dissimilar to Article VI of the Covenant on Civil and Political Rights. It is followed by a Protocol that abolishes the death penalty in peacetime in 1983. Followed that was a second protocol—an optional protocol, like the one for the ICCPR—that abolishes the death penalty at all times, wartime and peacetime, which was adopted in 2002 and has not even come into force. Meanwhile, we now have the European Court of Human Rights making that almost unnecessary because in their ruling a couple of weeks ago in the Ocalan case the European Court of Human Rights said the convention is implicitly amended to remove the reference to the death penalty. That might happen at some point in the future with the ICCPR, but because it has a universal vocation, you would have to have a much greater international consensus. You can get that in Europe although you could not get it five years ago.
So, approaching abolition in terms of stages has been a positive step and has moved forward the abolitionist agenda rather than set it back. Between the Second Optional Protocol, the protocol for the European instrument, and the Latin American protocol, we have about 70 states that have bound themselves as a matter of international law to abolish the death penalty, and none of that existed even 20 years ago. So, it is a gradualist approach, moving step-by-step, but it has been positive.
There is a point where the protocol route can be a bit of a trap. It was argued by Turkey in this recent Ocalan case before the European Court of Human Rights that there was a measure of tolerance for the death penalty in international law because the protocols (and they were referring here to the European Protocols, but you could argue with respect to the Second Optional Protocol) do not take a moral position against the death penalty since it tolerates the death penalty in wartime. That argument has been made, but it has not been terribly successful. It does pass the "straight face" test of advocacy—because the Second Optional Protocol maintains the death penalty in wartime, it does not totally take a principled position against the taking of life by the state.
Eric Sullivan: If the United States were to ratify the Second Optional Protocol, and make a declaration that even in times of war it would not use the death penalty, do you think that would more successfully make a principled moral statement? Could the United States advance that moral claim better by refusing to utilize the death penalty during wartime?
William Schabas: That’s interesting, and there is at least some precedent for that in international law. It is a little different then the case that you describe, but it is kind of the same idea. The Convention on the Rights of the Child has a provision that deals with recruitment of child soldiers, and as a result of the very difficult debate during the drafting of the instrument, officially set the age at 15 as the threshold for the prohibition on the recruitment of child soldiers. Some members of the convention believed 18 should be the age for the application of the prohibition on recruitment. Some of the Scandinavian countries and the Holy See made declarations when they ratified the Convention on the Rights of the Child saying that they thought the age limit should be 18 years, rather than 15. It is a declaration that looks a bit like a reservation, except that rather than limit the state’s obligations under the treaty, which is the purpose of reservations, it sort of does the opposite, highlighting that the instrument does not go quite far enough. It is a moral statement. It is a political statement. It probably could be argued that it binds that state, but it certainly does not change anything with respect to the instrument or the obligations of other states. The Second Optional Protocol allows for states to take that position, but in doing so, they are looking at the international instrument and saying to the international community "we can do better than this" and there is some precedent for that with respect to the Convention on the Rights of the Child.
Eric Sullivan: What are the benefits or drawbacks of U.S. abolition based on a Supreme Court decision which would apply customary international law to abolish the death penalty as opposed to signing an international treaty like the Second Optional Protocol?
William Schabas: I have always felt that the most hopeful route for abolition in the United States was through a Supreme Court decision. Actually, the Supreme Court has come close on at least a couple of occasions. First, in the Furman case, where it would have been total abolition had the three swing judges in the Furman case written slightly stronger opinions. It would have been also a done deal in the McCleskey case in 1987 that challenged the death penalty with statistical evidence showing that the race of victim was skewed and that there was an inherent racism in the way the death penalty was applied in the United States. The Supreme Court actually conceded the point that maybe some of that was inevitable, but there was a swing vote, Justice Douglas, and so it was a 5-4 decision to maintain the death penalty. Douglas later said in his memoirs that he regretted that decision for the rest of his career. Had he swung the other way it would have in effect abolished the death penalty forever. The inevitable racism in application would not be the kind of thing that states or the federal government could fix with legislation, the way they were able to fix the death penalty after the Furman case. The only way to get around a Supreme Court decision once you admit that there is a racist method in which the death penalty is being imposed would be through a Constitutional amendment, which is a very, very unlikely event.
Relying on the court system to ban the death penalty is one that has found a lot of favor in countries that are moving towards abolition—the best examples of this are found in Eastern Europe. In effect what has happened in Eastern Europe, in places like Ukraine and Albania, is that authorities have acknowledged that they want to abolish the death penalty, but there is no way that they will ever do so legislatively. So they amend the constitution in a way that opens the door to the constitutional court and lets them decide. It is a long way towards abolition, but the politicians can always then turn around to their public and say "we like the death penalty but what do you want us to do—the constitutional court says it is against the constitution, so we are kind of stuck." And of course, that is the route that they went in South Africa as well.
Sometimes executives and judges have emphasized international legal norms, and used those norms as justifications for taking the legal steps internally. That was done in Canada, it was done in South Africa, and in the countries in Eastern Europe. The constitutional courts bolstered their arguments by speaking about the international obligation. There is no example that comes to mind where the ratification of the treaty itself was the means to abolish the death penalty. It is not unlike the constitutional court route in that it is done by an elite treaty-it’s an elitist way of doing it. The problem being with the executive route is that if the elite abolish the death penalty and the people do not like it, then suddenly you have an election issue. The beauty of the constitutional court is that it is so immune from electoral interference and that is why it has worked in other countries.
I was in a conference on this in Chicago about three years ago where we were really split between those people that took the ultra-democratic route to abolition and those advocating a more elitist route. The "ultra-democrats" said the way abolition will come about in the United States is to keep doing outreach and campaigns, and ultimately win the public opinion poll when 51% of American people are in favor of abolition. Then abolition can occur legislatively. There were those that said it is very, very hard on questions like this to win over a majority of public opinion, because it is an issue that is so vulnerable to politicking and demagogy. This issue does not lend itself to a sane, healthy, public debate, and so better to go through what is in some ways an elitist route, which is the constitutional court. I would think it would be better if in the United States, if we could get 5 justices on the Supreme Court to do vote for abolition, it would be pretty hard to turn around. Look at Roe v. Wade: if you put that back to democratic institutions, for that matter, if you put it back to the Supreme Court and said we are going to rip up Roe v. Wade and you can debate it all over again, you would not have the same results as in 1972 on abortion.
Eric Sullivan: You mentioned how if the Supreme Court decided for abolition on its own it would be political cover for other politicians. I wonder would that also give those politicians cover for then ratifying the second optional protocol for being involved in international law, since the court had already decided that it was part of our constitution?
William Schabas: Probably. In some countries the ratification of the treaty like this is a purely executive act. That is the way it is in the United Kingdom, that’s the way that it is in Ireland, that is the way that it is in Canada. They don’t even have to ask the politicians before they ratify the treaty. Of course, then the treaty doesn’t have the kind of effect that it might have in U.S. law being a self-executing treaty. If the senate were to ratify or give consent to the ratification of the protocol without a Supreme Court judgment, some of the senators might find themselves having a tough time with it next time there were elections. If it went the other way around, the Senators could just say "well look, we are just going to give effect to the state of the law in the United States in any case there is a supreme court judgment". This is a difficult thing for politicians to do and I think that most countries you find that it is not generally the route they take in abolishing the death penalty. Some of them have constitutional court decisions that do it. Some of them go about it with what amounts to an executive fiat, kind of what happened in Illinois, where you have whoever in position to commute the sentence just stops doing it. So courts continue to impose the death penalty, but the authorities just won’t let it happen, and people just get it out of their system and they get used to a country where there aren’t executions. But asking legislators to do this on their own hook is a difficult thing to do in any country and I think it will be difficult to go that route in the United States.
Gordon Mitchell: Max, do you have a question on the Second Optional Protocol?
Maxwell Schnurer: Many other nations and cultures stand pretty firmly culturally behind the death penalty and use cultural arguments as their primary defense. How do you respond to criticisms that the push for global abolition is another example of Western cultural imperialism?
William Schabas: This is an argument that is frequently made and it takes a variety of forms. In China, where I do a lot of work, the suggestion is that, yes, abolition is a European value. Abolition is not framed as a cultural imperialism issue, it is presented more as a question of the levels of development of society. So they say, "China is not yet a Developed Country, when it is—we too will abolish the death penalty the way you have done in Europe. But unfortunately, we are still a Developing Country—we have an enormous peasantry, very poor people, and they are backward and primitive and they insist on the death penalty." So there is the view that abolition will come with economic development, in other words in not a culturally imperialistic way as if the value is being hoisted on them. Abolition is just a value that is consistent with Developed economies; it is something that will happen inevitably with development, but they are just not there yet.
Then, there are the Cultural Relativists, which you get particularly in Islamic countries. They argue that "the death penalty is part of our religion and so you are just trying to impose your religious values on us". Of course it can also be argued—and there are people in the United States and elsewhere that do so—who will find support for the death penalty in the Bible and will argue that it is part of the Judeo-Christian tradition as well. There is plenty of authority for the other view; there are certainly many ways that you can develop arguments that Islamic Law also ultimately can dispense with the death penalty. There is a range of practices in Islamic countries that suggest that we are not really talking about a firm religious norm so much as political choices taken by governments which are by-and-large quite oppressive and so its not at all surprising or inconsistent that they use the death penalty.
Another thing about cultural values is that we see very strong support for abolition probably even more in Latin America than in Europe—in what were Developing Countries rather than Developed Countries. Latin America has been by and large hostile to the death penalty. Africa, which has been more or less split on the subject, is about 50-50 abolitionist and non-abolitionist, certainly if you cut a little slice off the top to eliminate the Arab and Islamic countries. You find what people sometimes call "Black Africa" or "Sub-Saharan Africa," that is about a 50-50 split between those States that use the death penalty and those that do not. There is a lot of wavering, so you have a country like Rwanda—which has not used the death penalty since the early 80’s, then had a little flirt with it in 1998 with I think 22 people being convicted of genocide—and then have not used it since then. Rwanda has not executed anybody for a common crime in more than 20 years. Kenya has used the death penalty in small doses over the years. Now the President of Kenya says he intends to abolish it. So Africa should be about a 50-50 spilt.
In Asia, we find a much greater constituency for the death penalty, but in some of the more populous countries, like India, it’s actually rarely used. So it is hard to make a cultural pattern here. Even 10 years ago the countries at the top of the list would have been China, the United States, Iran, Iraq, Russia, Ukraine, and South Africa. Russia, Ukraine and South Africa have eliminated it. So at the top of the list what we have is really are culturally quite diverse countries the United States, China, Iran, and Iraq. I do think that human rights norms generally do deserve a culturally sensitive interpretation. Set aside the question of the death penalty for a minute and look at something like torture. In the case law, there are major differences within Europe about whether for example corporal punishment of adolescents is cruel or unusual punishment. You have English judges say it is not and you have French and German judges saying it is. In North America, you have a Constitutional Court in Canada, the Supreme Court of Canada, saying that sending people to an automatic prison sentence for trafficking or importing narcotic drugs is cruel and unusual punishment. In the United States it is widely accepted just across the river from Windsor, in Detroit, you get twenty-years minimum for trafficking in significant quantities of narcotic drugs. So, there are cultural differences there.
I think you would also find with respect to the death penalty, you would probably find a pretty broad consensus that the general norms in the Covenant of Civil and Political Rights in Article VI are universal. So on one of them, for example, where the US is just way out on a limb–essentially alone in the world now–is the execution of juveniles. If you ask the Chinese about executing 16 years-olds they would say "well that is barbaric." If you went to Pakistan or Iraq or even Saudi Arabia about executing 16 year-olds they might say the same thing. So you have actually a fairly good consensus that would be a universal norm. Another example might be the agreed upon norm against executing pregnant women. Most societies would think that these are not culturally imperialist, and yet the origin of it is the same, it was conferences in Europe of essentially the European and Western lawyers agreeing on these principles.
Will Repko: This all seems to beg the question of a strict abolitionist agenda versus a flexible abolitionist agenda. Professor Schabas, the EU uses more of a strict abolitionist agenda, you have said that they don’t have reservations, and its sort-of "less Optional." It seems to me that you are saying that the very success of the Second Optional Protocol rests in its ability to relax the strict abolitionist agenda in favor of allowing States the sovereign right to proceed gradually. Does this present a bit of a contradiction for the human rights agenda at-large, namely the balancing act between State sovereignty and universal human rights?
William Schabas: One of the principles of human rights of course is that you look beyond the veil of State sovereignty; it is not considered a violation of State sovereignty for the international community to interest itself in what that State is doing within its own borders. Of course, there is no question of enforcing it, and I think that’s where State sovereignty is perhaps brought to bear. When you start saying "you are violating human rights norms, so we are going to go in and enforce them in some way or another" that is where we start to bump into issues of State sovereignty. I think there is probably acceptance internationally now, fairly widespread acceptance, that a country that was committing genocide or a government that was committing genocide against a group within its own population, probably most countries would say "well they can’t hide behind State sovereignty". But, I don’t think that anybody has ever tried to stretch that to the issue of the death penalty. So the real issue is whether or not the treaty is just about talk at this point. It is about whether in a body like the Commission on Human Rights of the United Nations you can talk about how states are imposing the death penalty and whether that is violating the UN charter or whether that is meddling, and I think most people in the human rights community would hesitate at that kind of a suggestion.
The other part of your question deals with whether we go step-by-step or whether we take an absolutist approach. There is a lot of debate within international law and the international human rights community about this, and I have colleagues for whom I have great respect, who don’t like things, for example, like the moratorium that was implemented in Illinois and perhaps a few other states. They said "well that is terrible because all you do there is fine tune the death penalty to allow it to survive better," and I do not really think that is the case. I think that chipping away at it through various refinements or improvement of it is actually a very positive development. I think that focusing energy and attention on things like execution of juveniles ultimately just draws attention to what a barbaric penalty it is—so that it is ultimately positive. But others will argue you will get to a point where you have eliminated the death penalty for juveniles so you have made the death penalty stronger and more resistant than total abolition. These are things I guess reasonable people disagree on, but I come down on the side of the step-by-step approach actually works, so I am favorable to it.
Eric Sullivan: What is the probability of economic sanctions being used by foreign governments, particularly in Western Europe, against individual states that utilize the death penalty against foreign nationals? Do you think that the death penalty, which causes so much friction with our allies may eventually cause serious diplomatic ruptures that could hurt other parts of US foreign policy?
William Schabas: There has been talk of economic sanctions on and off over the years, and I do not think that much has come of it. I remember during the Atlanta Olympics, there was talk of trying to put pressure on Georgia. So far it has been more talk than anything, but at some point it might play an important role. Europe, certainly, has been very committed and almost shrill on this issue. When I say Europe, we are talking about the Council of the European Union—the 15 states of the European Union. The expansion to Eastern Europe, which is oddly enough a little more gentle with the United States on these issue, might shift the balance within the Council of Europe, not on the position it takes on the death penalty, but in how aggressively it would want to push it with the United States and perhaps other countries.
As for the foreign policy consequences, these are "soft" issues. States will disagree about them. Will it ever get to the stage like apartheid was in South Africa? Perhaps not, but who knows. It might depend on how much more of a pariah the United States becomes. If China were to abolish the death penalty and Iran were to abolish the death penalty, and they were to join a consensus in the United Nations, then the U.S. would become increasingly isolated on that issue, but that is certainly an unlikely scenario. But the death penalty does not help United States relations with Europe, which are probably not as healthy as they were three months ago, but maybe that is just a temporary thing. Historically, the United States and Europe have always been joined at the hip in terms of foreign relations.
Will Repko: Does the inability of the US to secure extradition of 9/11 suspects particularly from Europe stands to put the United States where it would reconsider the existence of capital punishment?
William Schabas: I am not aware that capital punishment is a real obstacle to extradition. It has become an issue only in that mostly European states have made [agreements not to pursue capital punishment] a condition [for extradition], but my understanding is that when the condition has been requested of the US, it has not been an issue, it has always been granted. The same thing applies not just to extradition, but also to mutual legal assistance in terms of obtaining evidence. In the Moussaoui case there was an issue about France giving evidence about his childhood and providing that to the United States. I do not think it has been an obstacle.
If I were a law enforcement official in the United States, I would look at capital punishment as a nuisance. I have seen studies done on police chiefs on their attitudes towards capital punishment and the results might surprise some, but when you think about it, the results are perfectly logical. They say "our business is law enforcement and the amount of energy that we devote to prosecuting capital cases, as opposed to the amount of energy we would have to devote if all we were doing was sending people to prison is so enormous and disproportionate to the benefit we might get." Even if there were some deterrent effect, the police chief would argue that capital punishment is not enough to justify the enormous investment of resources. They would much rather have the resources to put more cops on the beat and develop better detectives and better resources. We would probably get a much better result from law enforcement. I would think that if I were a Justice Department lawyer or someone working on mutual legal assistance, I would view capital punishment the same way: this is a big nuisance that some governor in Texas or somewhere else is foisting upon us, and if we didn’t have to worry about it, we could get our job done much more efficiently and effectively. I suspect that more and more there is that sentiment.
Gordon Mitchell: That might be a good segue into our second segment that is designed to explore some more general questions about the death penalty abolition movement, as well as the role of scholarship and debate in connecting with that struggle. Geoff Garen has a question about that general area.
Geoff Garen: One of my main interests is with the nature of activist involvement in politics and the death penalty especially given that it is so difficult to predict future legal changes. If in 5 or 10 years the death penalty is still on the books in America, will abolitionist activism have been a failure here or might we say that there is something to be said for the process of dissent itself—for being part of a community that says no to the death penalty and attempts to encourage others to do the same?
William Schabas: I have always had great admiration for abolitionists in the U.S., because it is a pretty difficult road to hoe and I know that over the years lots of them have found it to be quite demoralizing. It was rather exciting in the last year or two to see the smiles on their faces as we had these little blips indicating that perhaps things were shifting. The decision in the Supreme Court on the mentally disabled, the moratorium and commutations in Illinois, and statements by some of the justices on the Supreme Court, like Justice O’Connor that suggest that maybe there was something afoot. Among the abolitionists they have a saying that support for the death penalty is a mile wide and an inch deep and it is probably fairly accurate. It is a metaphor that recalls ice on a lake about this time of year; you look out one day at the frozen lake, and then three hours later you go back and there is water. I suspect that abolition will happen rather quickly in the United States. Will it happen in 2 years or 10 years or 20 years? That is really hard to predict. Internationally speaking, of course, it is a very encouraging picture.
I have been involved in this issue for about a dozen years on and off. In that time, I have seen really phenomenal changes. I have seen the numbers go internationally in 1989 from just 40% of the world’s states abolishing the death penalty, and even still some of those states used the death penalty during wartime, to now, where the numbers are more like 60-65% have abolished the death penalty. That is a very significant shift in about a decade. I can remember ten years ago sharing a platform with lawyers from South Africa and Russia who were talking about their efforts towards abolition. Then, they still had the death penalty in their countries, and they do not any more. And these are big countries we are talking about, big chunks of the international landscape and very important and influential players because of who they represent. So, it is encouraging in many ways.
The changes in the death penalty since 1948, which is kind of a starting point for international human rights with the adoption of the Universal Declaration of Human Rights, and today, one of the most demonstrable areas of progress is the subject of capital punishment which is only referred to implicitly in the Universal Declaration of Human Rights through the segment that just says everyone should have the right to life. The Universal Declaration of Human Rights avoided saying anything overt, because people like Eleanor Roosevelt said "we wouldn’t want to put anything in here that would freeze development in international law." And so we have this really quite phenomenal shift over 50-55 years, and I do not see any reason that would not continue. I think that’s rather encouraging when people look at this thing.
Now, looked at from the United States’ perspective, it is a bit more troubling. The United States, with respect to international human rights law has had a difficult position going way back to 1948. You had Eleanor Roosevelt there chairing the Human Rights Commission that got all of this going, but she was on her way out when the Administration changed in 1953, and then the Bricker amendment and the position that John Foster Dulles took, the U.S. became rather hostile to international human rights instruments, and that continued until Kennedy a little bit, and then Jimmy Carter tried to turn it around. Reagan came back and put the brakes on the development of international human rights law. Then George Bush, Senior was rather positive about human rights and got it all going again, because he was rather more committed then his progeny to multilateralism and to the United Nations’ institutions. Clinton pushed a little harder on international human rights, and then Jesse Helms, when he got control of the Senate Foreign Relations Committee, he sort of put a brake on it, which I think is still on. But the United States has sort of run hot and cold on international human rights. I think when it starts to run hot again, international human rights will certainly make a significant contribution to how things are unfolding within the U.S. on this issue. But right now it is rather dismal on this issue. For some individual to invest their life in this, as opposed to legalizing marijuana…I am not sure where they should put their energy.
Maxwell Schnurer: Professor Schabas, the intercollegiate debate community has been debating about the second optional protocol for the entire year. In classrooms all across America you and other abolitionist scholars have been quoted hundreds of times for support of this treaty. What kind of do you place on this kind of academic exploration? Do you think it does a service for the abolitionist cause or undercuts it in some way?
William Schabas: Well, I think the death penalty is obviously subject to a lot of emotions. My experience in talking with people is that the better informed they are, the more skeptical they are about its value and utility. I think Thurgood Marshall said that in the Furman decision. He said that he wasn’t against looking at public opinion polls, but that he liked public opinion to be well informed. So to the extent to which people are studying abolition, I would expect that they are better informed and I would think that would tend to make them more skeptical about the value of the death penalty in the United States. Of course, every time that we discuss these things in a healthy context, you have people who go both ways. So I’m sure there might be a few people who were against the death penalty and after a year of thinking about it have changed their mind and are in favor of it. But I would expect that the more genuine and serious the discussion is, that probably on balance, more people would be opposed to the death penalty.
Look at the incremental changes. I was at the Carter Center a few years ago for a session they had on the death penalty. Jimmy Carter was the Governor during the Gregg and the Furman cases, so he presided over the death penalty in the state that was the center of it all in terms of the case law of the Supreme Court of the United States. He was not prepared to come out with a statement against the death penalty. His wife was, Rosalyn was prepared to do it. But Jimmy Carter said that he was troubled by the racist dimension of the application of the death penalty and for that reason he did not see it as productive. The more people think about it and become aware of these things, they see that maybe its just not worth it. You can always make arguments in favor of it. It may sound facetious to say it, but I’m always willing to concede that the death penalty is a specific deterrent. Because anybody you execute, they aren’t going to commit any more crimes, so it definitely works at that level. For everything it purportedly gives to the justice system, it takes away so much. I would just think from what you tell me, without even knowing what the results are, that I would assume that it is fundamentally and on balance a positive from the standpoint of abolition. Thanks for doing it!
Maxwell Schnurer: You seem to view the value of conversation in academic circles as educational, almost as a type of training, in the hopes that there would be a second level of action implicit in this. Is your hope that individuals would educate themselves and eventually go on to provide pressure for the abolitionist cause?
William Schabas: Everyone does what they do in life. I am an academic and I write books and people use them the way that they want. I am not sure how in different countries abolition comes about. As I said early in our discussion this afternoon, there is an elitist dimension to some of it, which I don’t mind at all, and some people find to be offensive. I am not sure whether it is going to come about in the States because you have more people holding candles at vigils in Huntsville penitentiary than you have those arguing in favor of it. I don’t quite know what will do it.
Sister Helen Prejean’s book and movie may have done a great deal. Although, my mother watched Dead Man Walking and she came away saying she thought she was an abolitionist but she was troubled now by the movie. She felt that maybe the movie showed that the death penalty did get Sean Penn’s character thinking more about what he had done. And I know a few other people who have said at as well.
I don’t know how it all comes about. I like to encourage people to be an activist and everything. You know when I go to abolitionist meetings like Amnesty International they are always telling us to get out into the streets and march into the streets. I did that when I was a student in the sixties and seventies. The work I do is writing and where people take it, well that is what they do with it.
Gordon Mitchell: Our time is up. I want to thank everyone for this illuminating conversation. Especially Professor Schabas for taking time out of your busy schedule and speaking with us. Thank you.