The Foreign Service Journal, October 2003

— protested to bar the possible use of capital punishment against British detainees being held at Guantanamo Bay. For several decades, the European Union countries have refused to extra- dite criminal defendants to stand trial here — even suspected ter- rorists — without commitments by state prosecutors to forego the death penalty. The practice has caused allies and adversaries alike to challenge our claim of moral leadership in international human rights, and probably helped contribute to the embar- rassing (if temporary) loss in 2001 of America’s seat on the U.N. Human Rights Commission. Even more troubling, the practice has provided heavy diplomatic ammunition to countries with far worse human rights records. China, for example, invariably raises America’s death penalty when criticized for widespread human rights violations. During the last administration, several state gover- nors proceeded with executions despite letters from then-Secretary of State Madeleine Albright attesting that proceeding with the execution would do damage to the ongoing conduct of U.S. foreign policy and interna- tional relations. After those executions took place, U.S. diplomats and our foreign policy absorbed the fallout in countless ways visible and invisible to the American public. Most recently, President Vicente Fox of Mexico refused to visit President Bush at his Texas ranch, in part, reportedly, because of bilateral friction over Mexican nationals held on U.S. death rows who were not accorded consular notification rights, as specified under the Vienna Convention. In any number of countries and regions, the death penalty issue is often raised when questions are asked about why foreign governments and publics are increasingly negative about the United States. Questions at Home The growing liabilities of the death penalty abroad have been matched by mounting evidence at home that has re-opened the domestic debate on capital punish- ment. New documentation suggests that, contrary to the Supreme Court’s directive, the death penalty is not in fact being administered fairly in the United States. Since 1976, and the advent of DNA testing, at least 100 people who were put on death row have been exonerated. In late 1999, the Center on Wrongful Convictions, a project developed by faculty and students of Northwestern University’s law and journalism schools, showed that 13 of the 25 inmates on Illinois’ death row were, in fact, innocent. In response to these revelations, then-Governor George Ryan, a Republican, declared a statewide moratorium on executions. In February 2002, a compelling statistical study titled “A Broken System” was completed by professors at Columbia University (see http://www2.law.colum- bia.edu/brokensystem2). In examining more than 4,500 American capital appeals between 1973 and 1995, Prof. James Liebman and his colleagues discov- ered that “courts found serious, reversible error in nearly seven of every 10 of the thousands of capital sen- tences that were fully reviewed during the period.” One of the most common problems, now acknowl- edged in speeches even by justices of our Supreme Court, is egregiously incompetent defense lawyers who fail to find — or do not even look for — important evi- dence that the defendant was innocent. The adminis- tration of the federal death penalty, resumed in this administration after a hiatus of nearly 40 years, has been equally troubling. Of the 183 defendants for whom U.S. attorneys recommended seeking the death penalty between 1995 and 2000, a startling 74 percent were members of minority groups. This troubling evidence has led political leaders and commentators across the political spectrum — includ- ing such conservative voices as the Rev. Jerry Falwell and George Will — to question whether the death penalty continues to serve any purpose. An increasing- ly active movement has arisen in opposition to the death penalty, even among families of murder victims. State legislators in many areas of the country are back- ing moratoria on the use of the death penalty. More than 300 municipalities have passed resolutions calling for a moratorium on capital punishment. Sen. Russell F O C U S O C T O B E R 2 0 0 3 / F O R E I G N S E R V I C E J O U R N A L 21 Important bilateral meetings with our closest allies were increasingly consumed with answering demarches challenging the death penalty. Continued on page 24