An end to killing kids

Mar 2nd 2005
From The Economist Global Agenda

America’s Supreme Court has abolished the death penalty for those under 18 when they committed their crimes. It is just another nibble at the edge of still-popular capital punishment—but does it show that America can sometimes be swayed by world opinion?

WHICH country seems the odd one out in this list: China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, Yemen and the United States? These eight countries are the only ones in the world that, since 1990, have executed citizens who were under 18 when they committed their crimes. Now, at last, the world’s self-proclaimed beacon of freedom will be able to take itself off the list. On Tuesday March 1st, America’s Supreme Court ruled, by five votes to four, that putting to death those who were minors at the time of their crimes is unconstitutional. The move reprieves 72 juvenile offenders on death row.

Of course, the death penalty will remain in place for convicted murderers in America. Indeed, it remains popular—two-thirds of Americans support it (though this number drops to half when life imprisonment without parole is offered as an alternative). Despite this week’s ruling, America is clearly still out of step with most of the countries it considers its friends.

More than half of the world’s countries have either abolished the death penalty for normal crimes or have imposed moratoriums, according to Amnesty International, a non-governmental organisation that campaigns against capital punishment. These include all but two countries in Europe and Central Asia (Belarus and Uzbekistan), as well as both of America’s neighbours, Canada and Mexico, and like-minded countries such as Australia and New Zealand. Among large democracies, only India, South Korea and Japan still practise capital punishment. But it is rare in those places. According to Amnesty, in 2003, 84% of the world’s known executions took place in just four countries: China, Iran, Vietnam and America.

Though America’s polls do not show it, the tide may be creeping against the death penalty. One reason to think it will not last forever is that in most of the countries where it has been abolished, a majority of the public remained in favour of keeping it at the time. In most cases, crime rates failed to shoot up after abolition—thus putting paid to the argument for execution as deterrence—and populations came to believe that judicial killing was wrong under any circumstances. Only one formerly abolitionist country has resumed executions—the Philippines—though it has since suspended them again.

A second trend is the gradual nibbling away at the death penalty within America itself. In 2002, the Supreme Court ruled that most Americans now regarded the mentally retarded as “categorically less culpable than the average criminal”, and banned executing them. Ten years earlier, Bill Clinton, then a presidential candidate, had burnished his law-and-order credentials by letting the execution of a retarded man go ahead in Arkansas, where he was governor. But more recently, another governor with a national profile, George Ryan of Illinois, put a moratorium on his state’s use of the death penalty, and later granted clemency to all prisoners on death row. He was concerned about the number of inmates exonerated by DNA evidence after already having been sentenced to die.

A third trend against the death penalty in America is the increasing attention paid to moral views elsewhere. In the Supreme Court’s majority opinion, written by Justice Anthony Kennedy, the court acknowledged “the overwhelming weight of international opinion against the juvenile death penalty”. While the court explicitly said that foreign opinions, legal or moral, are not binding in American law, they were nonetheless “respected and significant confirmation” for Tuesday’s ruling. Antonin Scalia, the leading conservative on the bench, stoutly rejected any such notion. “Though the views of our own citizens are essentially irrelevant to the court's decision today, the views of other countries and the so-called international community take centre stage,” he raged.

But it is not the first such case. In the 2002 ruling in Lawrence v Texas, the Supreme Court struck down a state statute forbidding private homosexual conduct. The court ruled that: “Where a case’s foundations have sustained serious erosion, criticism from other sources is of greater significance…[T]o the extent Bowers [a previous case that had upheld the anti-sodomy law] relied on values shared with a wider civilization, the case’s reasoning and holding have been rejected by the European Court of Human Rights, and other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct.”

In other words, courts have previously cited other countries, or sometimes pre-American traditions, in making their case. The anti-sodomy Bowers decision had argued that prohibitions on homosexuality went back to biblical times from which much of Western ethics and morality is drawn. The Lawrence decision essentially replied that shared tradition is shared tradition, and that if the rest of the Judeo-Christian world is changing, America should not be blind to it. But conservatives are bound to be furious when they feel that more liberal societies’ values are being foisted on a fundamentally different America.

The death penalty is far from dead in America. The capture last weekend in Kansas of a serial murderer who had taunted his victims’ families and the police for decades will remind Americans that sometimes evil is just evil. “Victims-rights” groups remain potent. And anyway America remains happy to swim against the Western cultural mainstream in a host of areas. At a United Nations conference this week on women’s rights and health, for instance, the American delegation insisted that any declaration explicitly rule out the creation of “new international human rights”, a reference to a putative right to abortion.

America may be happy to differ sharply from the world’s other democracies on some moral and ethical issues, and this often irritates its closest friends. But this week’s death-penalty ruling seems to show that even a superpower can sometimes be swayed, even if just a bit.

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