The Foreign Service Journal, October 2003

tries: China, Iran and the United States. The United States has carried out more executions of juvenile offenders since 1989 than any country in the world. Only six countries have admitted to executing juveniles since 1990 — Iran, Nigeria, Pakistan, Saudi Arabia, Yemen, and the United States. In 1999, the only country, other than the United States, to execute a juvenile offender was Iran. Most of us are accustomed to thinking that America’s human rights practices set the standard for the world. In many respects this remains true. But in our time as State Department officials, we found that our administration of the death penalty increasingly presents a glaring exception to that rule. Many forget that the U.S. Supreme Court actually suspended the death penalty in 1972, on the grounds that its imple- mentation was unconstitutional. But in 1976, the U.S. Supreme Court allowed the states to resume capital punishment, so long as they adopted and followed more rigorous judicial procedures. Since then, the Court has taken a largely hands-off approach to adminis- tration of the death penalty by the states, 38 of which current- ly have death penalty statutes. Far from upholding exacting standards, it has rejected chal- lenges based on well-founded claims of racial and class bias, inadequate legal representa- tion, lack of consular notifica- tion, and defendants’ mental incapacity. Yet even while American courts have allowed state executions to proliferate, the rest of the world has moved in the opposite direction. At last count, 111 countries have abolished the death penalty in law or in practice. European regional organizations have made abolition of the death penalty a prerequisite to joining the “new Europe,” and a cornerstone of European human rights policy. The Diplomatic Fallout Increasingly, this issue has placed America and Europe on a collision course in global diplomacy. During our time in the State Department, both in bilat- eral meetings with scores of nations and at various mul- tilateral fora, we became aware that the United States' continuing adherence to the death penalty was becom- ing a growing issue and source of direct approaches to the United States by other nations. For example, important bilateral meetings with our closest allies — particularly from the European Union, Central and Eastern Europe, and Latin America — were increas- ingly consumed with answering demarches challenging the death penalty. The European Union now regularly criticizes U.S. death penalty practices in diplomatic demarches and sends pointed letters protesting specific executions. In many European capitals, outrage over American capital punish- ment has triggered street protests and angry public demonstrations. One distinguished former U.S. ambas- sador, Felix Rohatyn, reported in February 2001 that his consulates in France were frequently besieged by death penalty protesters, and that his embassy had received an anti-death penalty petition signed by 500,000 local citizens. Recently, the British government — our closest ally 20 F O R E I G N S E R V I C E J O U R N A L / O C T O B E R 2 0 0 3 F O C U S Harold Hongju Koh is Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale University. From 1998 to 2001, he served as assistant secretary of State for Democracy, Human Rights and Labor. He served as counsel of record for nine former U.S. diplo- mats before the U.S. Supreme Court in Atkins v. Virginia and as counsel of record for former U.N. High Commissioner for Human Rights Mary Robinson and human rights organizations before the Court in Lawrence v. Texas . Prof. Koh recently received the 2003 Wolfgang Friedmann Award from Columbia Law School for outstanding contributions to international law. Thomas R. Pickering, a career ambassador, served as under secretary of State for political affairs, assistant sec- retary of State for Oceans, Environment and Science, U.S. ambassador and permanent representative to the United Nations in New York, and as ambassador to the Russian Federation, India, Israel, El Salvador, Nigeria and Jordan. He retired in 2001. In 2002, Amb. Pickering received the American Foreign Service Association’s Award for Lifetime Contributions to American Diplomacy. While American courts have allowed state executions to proliferate, the rest of the world has moved in the opposite direction.