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John
O’Sullivan
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INTERNET SOURCE: http://www.nationalreview.com/article/294497/european-dignity-american-rights-john-osullivan
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.
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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.
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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.
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Serb ultranationalist
leader Vojislav Seselj holds a burning European Union flag in front of the High
Court building in Belgrade, March 10, 2016.
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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.
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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.
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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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