I. INTRODUCTION: THE THEME OF "CHANGE"
The idea of "change" in public policy is everywhere in the United States today. In significant measure, this is because of the Presidential candidacy of Senator Barrack Obama and his nomination battle with Hillary Clinton. Even the Republican candidate, 71-year-old John McCain, is attempting to recreate himself as an "outsider" and "change" candidate. Unfortunately, this public theme of change has not reached America's continuing practice of state execution of capital defendants. My lecture this evening will explore the legal changes that have taken place in death penalty law and practice in the United States in recent years, indicate how international law has influenced this change, and comment on how world opinion can affect change in the future.
Richard Dieter, Executive Director of the Death Penalty Information Center (DPIC) in New York City, observed: "capital punishment is unlikely to be undone for any one reason. Like snow on a branch, it is not any one flake that makes the branch break, but rather the collective weight of many flakes accumulating over time." (2)
I can confidently report that international law and the practices of nations constitute one of the snowflakes, a very, very, large one, which is weighing down the branch of American death penalty law. I hope it will eventually break that branch!
That is because the death penalty is a fatally flawed form of criminal punishment. Nobel Prize winner Archbishop Desmond Tutu of South Africa put it best when he said:
The time has come to abolish the death penalty worldwide. The case
for abolition becomes more compelling with each passing year.
Everywhere experience shows us that executions brutalize [sic] both
those directly involved in the process and the society that carries
them out. Nowhere has it been shown that the death penalty reduces
crime or political violence. In country after country, it is used
disproportionately against the poor or against racial or ethnic
minorities. It is often used as a tool of political repression. It
is imposed and inflicted arbitrarily. It is irrevocable and results
inevitably in the execution of people innocent of any crime. It is
a violation of fundamental human rights. (3)
At least one sitting Justice of the United States Supreme Court, Justice John Paul Stevens, has concluded that the death penalty represents "the pointless and needless extinction of life," produces "only marginal contributions to any discernible social or public purpose," and should be abolished. (4)
II. CAPITAL PUNISHMENT BASIC PRINCIPLES
In order to understand the influence of international law on the death penalty debate in the United States, one must first have a basic understanding of how death penalty law is made and appreciate the critical role played in that process by the U.S. Supreme Court. The Court will be the primary focus of my lecture.
In our federalist system, capital punishment laws are the product of legislation. Each of the fifty states, and the U.S. Congress, is free to pass a law imposing a death sentence for the commission of extremely serious crimes (deliberate murder; terrorism; child rape). Presently, thirty-six states and the U.S. Government have such laws on the books. (5)
Once a defendant is convicted and sentenced to death pursuant to these laws, an elaborate system of appeals takes place. Kennedy v. Louisiana, (6) now pending decision in our Supreme Court, is a good example. Patrick Kennedy, a 43 year old black man, was convicted in a Louisiana state court of raping his eight year old stepdaughter. Under Louisiana law, aggravated rape, defined at the time as sexual relations with a child under the age of twelve, (7) was a capital crime and Kennedy was sentenced to death. He appealed this sentence through state courts and lost. (8) He then appealed to the U. …