The United States is one of the few major democracies where the death penalty remains in use. But domestic concerns over the fairness of the process and international pressure over its human rights ramifications have subjected capital punishment to a new level of public scrutiny in the United States. RFE/RL correspondent Robert McMahon looks at the issue.
New York, 17 May 2001 (RFE/RL) -- The debate over the death penalty has intensified in the United States this year as the country prepares to carry out its first federal execution in nearly 40 years and individual states re-examine the fairness of the capital punishment system.
Public attention at the moment is focused on the upcoming execution of Timothy McVeigh, convicted of the worst act of domestic terrorism in U.S. history. McVeigh's guilt is not in doubt and he expresses no remorse for the bombing of a federal building in which 168 people were killed.
Death penalty opponents acknowledge this makes McVeigh an unsympathetic figure and they are concerned his case diverts attention from what they say are serious flaws in the U.S. capital punishment system.
But the McVeigh case is bringing a new spotlight to an issue that has traditionally generated less controversy in the United States than in the rest of the developed world.
Hundreds of executions have been carried out by U.S. states in the past 20 years, but McVeigh's execution would be the first on the federal level since 1963. That exposes the U.S. government to pressures from the European Union to halt the death penalty. EU states consider capital punishment as a brutal violation of human rights, while U.S. officials maintain it is not a violation of international law and reflects the will of the American people.
The McVeigh case has also unexpectedly contributed to concerns about the way death penalty cases are prosecuted. The discovery that the U.S. Federal Bureau of Investigation, or FBI, withheld more than 3,000 pages of legal documents from McVeigh's lawyers forced a postponement of the execution date from this week until next month.
Rob Freer is an expert on U.S. death penalty policy for Amnesty International, which campaigns for the abolition of the practice. He says that on the state level, a moratorium on executions ordered by the governor of Illinois last year has triggered concern in other states about abuses in the ways capital punishment is handled locally.
Freer tells our correspondent that since the January 2000 moratorium ordered by the Illinois governor took effect, nearly 100 people have been released from death rows around the United States because of new questions about their guilt.
"People are beginning to realize that there are problems with the system, having not really questioned it for 20 years, having assumed that their courts and the prosecutorial system would make sure there were no mistakes."
New revelations of the faults in the death penalty system, Freer says, have made a growing number of Americans look at the fairness of the system, even those who still support capital punishment.
In the state of Texas, for example, legislators this year have begun to debate issues such as raising the minimum age of capital punishment defendants to 18 and improving legal representation for poor defendants. Freer says this was previously unheard of in Texas, which is one of the world's leading jurisdictions in terms of number of death penalty sentences carried out in recent years.
But Freer and other death penalty opponents do not expect any dramatic reversals in U.S. executions. Public-opinion polls show support for the death penalty is at its lowest level in 19 years, but it still has an approval rating of nearly two-thirds of Americans. U.S. states have executed more than 700 people since the death penalty was reinstated in 1976, including 85 executions last year and 30 so far this year. State corrections systems hold more than 3,700 condemned inmates and there are 20 prisoners on federal death row.
Greg Wiercioch is an attorney who has made clemency appeals for federal death row inmate Juan Garza, who was convicted eight years ago for involvement in three murders. Despite the suspension of his execution date in December by President Bill Clinton, Garza is now scheduled to die by lethal injection several days after the scheduled McVeigh execution.
Wiercioch says developments in the past year have started to change the public perception of the death penalty, especially on the issue of fairness. But he doesn't see a reversal in the practice any time soon.
"Cases that bring it to the public's attention are making it more and more difficult to support the death penalty but it still is deeply rooted, I think, in the politics of the United States."
But Wiercioch does see new opportunities to bring attention to the federal death penalty system. As a national symbol on capital punishment, the system is under extra scrutiny because of the upcoming execution dates for McVeigh and Garza.
In federal cases, it is the president, not a state governor, who decides whether a prisoner lives or dies. President George W. Bush has already received a plea from Pope John Paul to spare McVeigh's life and his secretary of state, Colin Powell, has heard complaints from EU states about the death penalty.
But there does not appear to be domestic support for any drastic moves against the death penalty on the federal level. Leaders of both major U.S. political parties have voiced their support for capital punishment. It was not an issue in last year's presidential race between Vice President Al Gore, a Democrat, and Bush, a Republican who as Texas governor presided over 150 executions.
Rory Little, an expert on the federal penalty at Hastings College of the Law in San Francisco, says there remains a deep-rooted feeling among average Americans that capital punishment is just for the most serious crimes.
Little tells RFE/RL that European concerns over the death penalty appear to be reflected in much of the U.S. media, academia, and parts of the legal community. But he says there is a major gap between these groups and average Americans in the way the issue is perceived.
"Most Americans don't see that as a human rights issue. They just see it as a justice issue."
Little -- a former U.S. deputy assistant attorney general who served on a review board of death penalty cases -- says many Americans also seem to accept the fact that capital punishment is administered unequally in the United States. Capital punishment is legal in 38 of the 50 U.S. states, and some of them, such as Texas, pursue death sentences much more vigorously than others.
The United States has 94 judicial districts and they employ a wide range of standards on death penalty prosecutions. Little points out that a violent murderer in a state such as New York could be put to death because the state has legalized capital punishment. But if the same crimes were committed across the border in neighboring Massachusetts, he says, the defendant could not be put to death because that state does not allow the practice. Wiercioch, the attorney for federal death-row inmate Garza, says there is a need for further review of both geographic and racial disparities in the federal system of capital punishment before pending sentences are carried out.
"There has never been anyone in the federal system convicted from a state that doesn't have the death penalty -- because your U.S. attorneys in those states are less likely to pursue federal capital charges against somebody unless it meets a very high standard."
The U.S. Justice Department conducted its own review of the system and last September released a report showing racial and geographic disparities in the federal death penalty. The findings led President Clinton in December to grant a six-month reprieve to Garza, who is Hispanic and from Texas.
The U.S. Justice Department is investigating possible causes for this disparity. At the same time, U.S. officials have tried to stress their commitment to due process of the law in prosecuting death penalty cases, in connection with the latest developments in the McVeigh case.
Bush told a news conference last week that the decision to delay the McVeigh execution reflected an obligation to ensure fairness in the system.
"The very foundations of our democracy depend on our ability to assure our citizens that in all criminal cases, and especially in the death penalty, defendants have been treated fairly. "
But death penalty abolitionists say they are disappointed that U.S. leaders are not swayed by moral arguments against capital punishment. And European leaders have expressed alarm that the first federal execution since 1963 is going to be shown on closed circuit television to a group of relatives and survivors of McVeigh's victims. U.S. officials defend this as a commitment to victims' rights, but European officials deplore it as state-sanctioned vengeance.
The European Convention on Human Rights bans execution. Countries that seek to gain membership in multilateral bodies such as the Council of Europe and European Union are required to abolish the death penalty.
Amnesty International's Freer thinks the continuation of the practice in the United States makes it an increasing anomaly among developed nations. He says it undermines the U.S. position as a defender of human rights.
"It (the U.S.) proclaims itself to be a champion of human rights and a leading light in the world for human rights, and it cannot wear that badge while it's at the same time doing something which in more than half of the countries of the world is now seen as cruel, inhuman, degrading, unreliable, ineffective, and a human rights violation."
U.S. officials regularly defend the policy at international bodies. U.S. Ambassador George Ward told a meeting of the Organization for Security and Cooperation in Europe last October in Warsaw that the U.S. practice is consistent with international law. Ward said the International Covenant on Civil and Political Rights recognizes the right of states that have not abolished the death penalty to impose it.
Ward said the U.S. position was that in a democratic society the criminal justice system should reflect the will of the people. He noted that the death penalty has been abolished in many countries and is an emotional issue in the United States subject to ongoing debate. But so far, Ward said, the democratic processes of the United States have confirmed it as legitimate policy.