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article is written by the author itself and not by me, I am not trying to
violate their copyright. I will give some information on them.
PAGE
TITLE:
The National Review Online
ARTICLE
TITLE:
European Dignity, American Rights: Outlining a debate on capital punishment.
AUTHOR: John O’Sullivan
AUTHOR
INFORMATION: John O'Sullivan CBE (born April 25, 1942) is a leading
British conservative political commentator and journalist and currently Vice
President and executive editor of Radio Free Europe/Radio Liberty. During the
1980s he was a senior policy writer and speechwriter in 10 Downing Street for Margaret
Thatcher when she was British prime minister, and remains close to Thatcher
until this day.
DATE: Tuesday 27 March
2012
 | |
| 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.
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.
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.
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.
http://www.nationalreview.com/blogs/print/294497
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