The Foreign Service Journal, October 2003

today than at any other time in the long and controversial history of this important issue. There are at least three reasons for this development. First, there is a greater recognition of the need for international cooperation and respect for the laws of other democracies, and this recognition is finding its way into decisions by the highest courts in the U.S. Second, today there is a broader intersec- tion between U.S. capital punish- ment law and the interests of other countries. Issues of extradition, the execution of foreign nationals, and the prospects of military tribunals to deal with suspected foreign terrorists often put the death penalty and inter- national human rights concerns in direct conflict. Third, while in the past the U.S. faced a diversity of views on capital punishment among its allies, today we are confronted with a near unanimity on certain aspects of the death penalty and a growing consensus con- demning its use in general. International Influence in the Past The death penalty in the earliest days of the United States was a continuation of the practice brought over from England, but less harsh. The number of crimes punishable by death was curtailed in the early colonies compared to the long list of capital offenses in England, and was gradually limited to the most violent crimes such as first-degree murder and rape. Some jurisdic- tions in the U.S. abolished the death penalty in their state systems long before that became the norm in Western Europe. The state of Michigan abolished the death penalty in 1846 and Wisconsin took a similar step in 1853. Neither state has carried out an execution since then. But the death penalty was not seriously challenged as a constitutional issue in the U.S. until the late 1960s — a time of considerable turmoil on civil rights issues here, and a time of movement toward abolition of the death penalty in Europe. This challenge resulted in the somewhat surpris- ing decision of the U.S. Supreme Court in Furman v. Georgia in 1972 finding the death penalty to be unconstitutional as it was being applied everywhere in the U.S. The five opinions of the concurring justices made scant mention of any trend away from the death penalty outside the U.S., though they rec- ognized the debt that the ban on cruel and unusual punishments owed to English law and the Magna Carta. Some of the justices measured the meaning of this clause by the “evolving standards of decency” in society, but did not look to other countries for these standards. The decisive rationale for holding the death penalty unconstitutional in Furman rested on its arbitrary and capricious use within the United States, rather than on any declining use or condemnation from abroad. In fact, a number of the justices pointed to the increasing rarity of the use of the death penalty in the U.S. as a rea- son for stopping it all together. Justice Stewart, one of the two key justices in the decision, compared the death penalty to the random act of being “struck by lightning.” Justice White, the other centrist, said that it was impos- sible to distinguish the many cases eligible for the death penalty from the few that received it. In the late 1980s, international opinion was consid- ered but largely rejected in the discussion of the death penalty for juvenile offenders. The Supreme Court banned the execution of those who were under 16 years of age at the time of their offense in Thompson v. Oklahoma in 1988, relying almost exclusively on U.S. practice at the time. When the Court was faced with the companion question regarding the execution of those who were 16 or 17 years old at the time of their crime, it not only allowed the practice, but Justice Scalia, writing for the Court, strongly objected to the use of international opinion in evaluating the evolving standards of decency to apply in the U.S., a point raised by the dissent. This sharp difference of opinion on the use of international standards set the stage for future battles on the death penalty in the Court. International influence on the U.S. death penalty perhaps reached its nadir in the dispute over the execu- F O C U S 32 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 Richard Dieter is executive director of the Death Penalty Information Center. A graduate of Georgetown University Law Center, he also teaches capital punish- ment law at Catholic University Law School. In the late 1980s, international opinion was considered but largely rejected in the discussion of the death penalty for juvenile offenders.