Unit 1012 Cover Photo

Unit 1012 Cover Photo

Thursday, May 5, 2016



John O’Sullivan

European Dignity, American Rights: Outlining a debate on capital punishment.
27 March 2012 by John O’Sullivan

For many years, a delegation of European Union ambassadors to the United States would troop off to Foggy Bottom for an annual meeting with the Secretary of State at which its members would solemnly demand that the U.S. abolish the death penalty on the grounds that it was a violation of human rights. Every year, the Secretary of State or his representative would politely explain that capital punishment was not a federal responsibility but a question to be determined by individual states. And every year this would make not an ounce of difference; the ambassadors would duly turn up the following year and make the same request.

For all I know, this quaint ceremony continues still, in all its showy pointlessness — like the changing of the guard at Buckingham Palace. The European Union has adopted the abolition of capital punishment as one of the main aims of its common foreign policy. It regularly sends out diplomatic delegations to urge lesser breeds without the law — the Philippines, Indonesia, the U.S. — to conform to its high “European values” on this matter. I suppose that, when the financial roof is falling in and the wind is howling through broken windows, giving self-righteous moral lectures to your IMF creditors is one way of keeping warm. (Not the best way, of course, but one way at least.)

Americans tend to be tolerant of such European self-regard. Probably too the diplomats advising the Secretary of State are the kind of people who would oppose capital punishment in the U.S. And being Washington bureaucrats, they may also sympathize with the seeming inability of the EU’s ambassadors to grasp that, under the U.S. Constitution, individual states enjoy genuinely independent authority. That’s not how EU federalism works — and many in Washington prefer the Brussels way. 

All this may explain why, so far as I know, the ambassadors have never been sent away with a flea in their collective ear. But it would be a fitting response — and a wonderful educational opportunity for the ambassadors — if Mrs. Clinton were to insist that they take an annual tour of all 50 state capitals so that they could address their concerns on capital punishment to the proper authorities. She would naturally have to grant them Secret Service protection since the EU has a pretty broad program of instructing other countries on what laws they have a bounden duty to pass — international gun control (“the widest possible”), abridging the First Amendment in order to regulate “hate speech” on the Internet, and, of course, abolishing capital punishment. That kind of hubris irritates American voters who are much less deferential to political elites than their European counterparts, and I would pay a scalper’s price to get tickets for a front seat when the ambassadors visited Georgia, New Hampshire, and, above all, Texas.

Okay, it’s a pipe dream to think that a progressive U.S. administration would speak harshly to the Europeans on anything, let alone defend the right of states to retain the death penalty. Some conservatives will also respond tetchily that the U.S. intervenes abroad too, so what’s sauce for the goose is sauce for the gander, Hrumpf, Hrumpf, etc., etc. But there’s a difference in principle between intervening with dictatorships to protect dissidents from being tortured and intervening in democracies to prevent voters from choosing the laws they live under.

Or so you and I might think. But the EU and its American supporters’ club have a reply to such naïveté — as the distinguished Hudson Institute scholar John Fonte laments brilliantly in his recent book, Sovereignty or Submission. The EU does not root its intervention simply on case-by-case indignation. On the contrary: its intervention on capital punishment is but the tip of an iceberg of theory.


Supporters of the Serb Radical Party (SRS) on Tuesday March 24, 2015, staged a protest in Belgrade when they burned flags of NATO, the EU, the United States, and Kosovo.
This theory holds that the EU is both the embodiment and main advocate of a new system of “global governance,” under which the ultimate sovereign authority in the U.S. should be not the U.S. Constitution but a network of international treaties on human rights administered by international courts and transnational bodies like itself and the United Nations. And the same would go for all other nation-states — now sovereign, but destined soon to be subordinate to a new structure of transnational power that is rooted in the enforcement of human rights, beginning with the rights of murderers.

So, we should take the ambassadors seriously. They are the diplomatic vanguard of an ideological assault on democratic sovereignty. Why should not the administration, or the U.S. Congress, or a coalition of the major Washington think tanks, or all three jointly invite them to a major forum for a public debate on all these issues? 

Start, first, with the issue that the EU Ambassadors have themselves raised, namely capital punishment. They threw down the gauntlet; we should pick it up. When we do so, we shall find the task surprisingly easy.


Serb ultranationalist leader Vojislav Seselj holds a burning European Union flag in front of the High Court building in Belgrade, March 10, 2016.
The European Union is so certain of its own virtue that it simply parades a set of moralistic precepts on the death penalty that the unobservant might confuse with arguments. Its statement of principles on the issue — here — is intellectually trivial and ignores strong points on the other side. For instance, the statement makes the usual self-confident claim that there is no evidence that the death penalty has a unique deterrent effect in combating crime. There is, in fact, quite a lot of statistical evidence to this effect. However, even if we let that go, there remains an irrefutable case that the death penalty prevents second murders by those who have been previously convicted of the crime. This is the so-called incapacitation effect. In a phrase: Dead men commit no murders.

How many lives might be saved by the incapacitation effect of the death penalty? Up-to-date U.S. figures are hard to find, but earlier statistics show that the gain in innocent lives would be substantial. Professor Paul G. Cassell pointed out in testimony to the House Judiciary Committee in 1993: “Of the roughly 52,000 state prison inmates serving time for murder in 1984, an estimated 810 had previously been convicted of murder and had killed 821 persons following those convictions. Executing each of these inmates following their initial murder conviction would have saved 821 innocent lives.” This effect goes unmentioned in the EU statement.

More recent figures from the British Home Office show that, between 1997 and 2007, no fewer than 30 murderers committed a second murder when they were either on parole or had served a custodial sentence and been released. That translates into about 150 innocent victims of second-time murderers in a population of U.S. size — and somewhat more in a population of the size of the entire EU.

These victims go unmourned by bien pensant opinion. In the British debate on capital punishment, we hear constantly — and rightly — about the two men executed in the 1950s for murders of which they are now considered wholly or partly innocent. But we do not even know the names of the 30 victims of our abolitionist penal policy over the last 15 years.


Supporters of the Serb Radical Party (SRS) on Tuesday March 24, 2015, staged a protest in Belgrade when they burned flags of NATO, the EU, the United States, and Kosovo.
Well then, abolitionists usually respond at this stage of the debate, let us keep murderers in prison forever to protect the public. This sounds suitably hard-hearted, but it neglects the fact that some second murders occur in prison. Even if we were to impose life imprisonment without parole, we would not be able give absolute protection to prison guards and other inmates who form a small but important minority of the victims of second-time murderers. Life without parole is, therefore, no solution, unless we don’t mind if guards and common criminals are murdered. I do mind.

To be fair to the EU’s statement, it does not take refuge in the concept of life without parole. Instead, after a good deal of hemming and hawing, it declares with unwise candor that “a crime prevention policy which admits maintaining imprisoned for life a convicted person who has served in prison a term corresponding to the gravity of the committed crime and is no longer a danger to society, would fail to meet either recognized minimum standards for the treatment of prisoners or the goal of social rehabilitation . . . blah, blah, blah.”

This declaration pushes the EU into an extreme position. If life without parole would violate our commitment to “recognized minimum standards” or the “goal of social rehabilitation,” why does that change when a murderer commits a second or a third murder? The answer is that it doesn’t. So the EU would have to release a serial killer after his third, fourth, or fifth murder once he had served the usual kind of sentence (i.e., six to eight years.) 

In practice, of course, they would probably cheat and keep him inside with an excuse — insanity, usually. But in their own eyes they would be violating his human rights and human dignity. And insofar as they remained true to their idealistic principles, they would be sacrificing the actual lives of an unknown but perhaps significant number of innocent people to the human dignity of someone guilty of one or more great crimes.

That is where following the advice of the EU ambassadors would get us. How might they argue that such a preference is more moral or civilized than saving innocent lives at the expense of guilty ones? Let’s find out.

The second topic for our debate might be democracy. The final paragraph in the EU’s statement above is an appeal to the world and, in particular to the U.S., as follows:

Long ago European countries, either in practice or in law, made a choice for humanity, abolishing the death penalty and thus fostering respect for human dignity. And this is an ultimate principle that the EU wishes to share with all countries, as it shares other common values and principles such as freedom, democracy, and the rule of law and safeguard of human rights. 

In fact, very few European countries, if any, made this choice. Their political elites made the choice for them — and usually did so knowing that public opinion in their countries was strongly opposed to their decision and would reject it in a referendum if given the chance. Many would still do so.

How many? Opinion polls fluctuate on the death penalty in European countries as elsewhere. It rises and falls. But in countries as different as Britain, the Czech Republic, Poland, and Sweden, support for the death penalty since 1945 has usually been a majority, sometimes a plurality, and almost never second to abolitionism. It has strong popular support in every country in the European Union.

The persistence of this support over and against the passionate disapproval of cultural and political elites, their refusal to allow free and open debate on the question, their attempts to ensure that the democratic reinstatement of the death penalty is made impossible by treaty restraints, and above all their constant assertion that rejection of the death penalty is a “European value” demonstrates, paradoxically, that the death penalty in fact has deep roots in democratic opinion.

In particular, proclaiming the abolition of capital punishment as a European value is a self-refuting absurdity so transparent that it scarcely needs pointing out. If it were actually a European value, the claim would not need the reinforcement of constant repetition because it would be taken for granted by all. Since it is repeatedly opposed by large numbers of non-elite Europeans despite this constant reinforcement, it is not a European value at all but merely the policy preference of some influential Europeans. European ambassadors in international forums, while perfectly entitled to defend the abolition of capital punishment as the policy of their governments, are lying when they present it as the settled conviction of their peoples.

By contrast, democracy is a European value — or, at the very least, it is accepted as such by the great majority of Europeans. It even has a walk-on part in the EU statement on capital punishment. But the imposition of abolitionism on Europeans by a combination, hopefully unique, of stealth, moral bullying, and legalist trickery is a manifest subversion of democracy. It demonstrates that when there is a conflict between democracy and strong elite preferences, the EU comes down on the side of the elites.

The reason that capital punishment survives in America but has perished in Europe is not that America is less civilized than Europe, but that it is more democratic than Europe. There is quite a lot of evidence for this on other political topics. Maybe, therefore, the State Department should instruct U.S. ambassadors in Europe to mount an annual protest about the erosion of democracy throughout the EU. It can’t do any harm.

A third possible topic for the debate is the legal agreement among EU counties not to extradite to the U.S. any criminals, whatever their crimes, who might face the death penalty here. This is dressed up as a matter of principle and compassion again, but it is plainly an attempt to dictate law and penal policy to the sovereign United States.

Instead of railing indignantly against it, however, maybe we should take the EU’s arguument at face value and propose an extension of its underlying principle. Quite simply, that principle is that the European Union has a moral obligation rooted in human rights to extend sanctuary to anyone facing the death penalty in another jurisdiction. As it happens most such people happen to be in America. It is also a matter of accident that the principle has so far been invoked by European governments in extradition cases where the convicted person has been seeking to avoid deportation to trial and/or execution. But the principle itself is capable of wider and more generous application. After all, the distinction between not exporting convicted murderers from Europe to America and importing convicted murderers from America to Europe is essentially a navigational one. The U.S. might therefore propose an imaginative extension of the sanctuary principle (making due allowance, of course, for the federalist caveat that individual states would have to consent to this new legal provision for it to be enforced in practice). That qualification aside, the U.S. would propose formally to the EU that, whenever a criminal was found guilty of a capital offense in an American court, he would be allowed to choose between immediate execution and deportation to the European country most to his taste in living.

Like execution itself, this would be a once-for-all decision. The reprieved murderer would lose his U.S. citizenship and any right to return to America. He would become a citizen of his new country — initially, perhaps, a prisoner within it too — but given “recognized minimum standards” and “the goal of social rehabilitation,” we can reasonably assume that he would be walking the streets before long.

On present trends, not many murderers and rapists would be given this chance of a new life in Europe — probably fewer than 1,000 annually. It is possible, however, that when this new legal provision became widely more known, the number of both capital cases and guilty pleas would increase substantially. This change would also, hopefully, introduce a new and cooperative element into plea-bargaining and clear up the heavy backlog of death-row cases on appeal. Complaints of police coercion of confessions would also likely diminish in number.

Some thought would have to be given, admittedly, to the avoidance of any unintended incentive to homicide that might be entailed by this proposal — at least in the United States. Within the European Union, the entrenched regime of human rights and the associated concern for human dignity mean that such considerations long ago ceased to be relevant. Europe’s reaction to such an imaginative exercise in abolitionism can surely be taken for granted . . . 

Okay, I know, I know — none of this is going to happen. No U.S. administration is going to put the Europeans on the spot with such intellectual guerrilla tactics, and no bold assertion of American prerogatives will emerge from the State Department. At best, Heritage, AEI, Hudson, and Cato — with perhaps a little covering fire from Brookings and SAIS — might provide the forum and invite the ambassadors for a civil debate, which the latter will succeed in politely postponing to the Greek kalends.

That, however, isn’t the point. If we merely raise such topics, if we discuss such undiplomatic responses in the media, if we threaten fire with fire (or even just with cold water), we change the balance of debate both across the Atlantic and within individual European countries. We strengthen democracy, we hinder global governance, and we blow away nonsense.

There is, as it happens, a fourth tactic that has the advantage of being entirely serious, entirely practicable, entirely embarrassing to any European concerned with real human rights and human dignity, and entirely capable of being raised and pursued by the U.S. State Department.

But it will have to wait until next week.

John O’Sullivan is editor-at-large of National Review.

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