When Capital Punishment is a Crime: the Atlantic Divide Over the Death Penalty

10/18/2010 05:19 pm ET | Updated May 25, 2011

Europeans and Americans often feel uneasy about each other's attitude towards capital punishment -- a punishment that many in the US openly support but which Europeans consider abhorrent to the point that 'executions per capita' is quite frequently used as a negative global measurement of political and human rights. Curiously, old Europe has proved remarkably modern on the abolition of the death penalty, while youthful America's attachment to the practice places it decidedly at odds with its closest allies and with countries that share its liberal and democratic ideals. Ironically, the United States share a common creed with a large number of non-democratic states; huddled together with Japan, South Korea and India -- countries with very distinctive ideas of justice based on honor, retribution and religion -- America sits uneasily in the waiting-room of executioners.

Can we speak of an "American exception" in respect of capital punishment? A cocktail of factors, consisting of the power of public opinion, decentralization of political institutions and an entrenched conservative opposition to both major political parties, seems to go some way to explaining the remarkable endurance of the policy.

The need for politicians to court public opinion might seem the most obvious explanation: in the US, polls suggest that more than 70% of the population support capital punishment; and, far from being in decline, the figure has increased from support of around 60% in the 1950s and 45% in the 1960s and '70s. Demographically, support is disproportionately high among white Southern men of middle income who vote Republican. And yet this explanation in terms of public opinion seems insufficient when we look at the circumstances surrounding the abolition of capital punishment in Europe. French President Mitterand abolished the death penalty in 1981 despite the fact that 62% of the French population were in favour of retaining it. Perhaps reflective of a growing lack of trust in the French police and justice system, support for the penalty only recently became a minority. Moreover, there is currently popular support for reinstating the punishment in other abolitionist countries -- some 70% of Britons and 62% of Canadians, for example, are favourable. All this suggests that public opinion in itself does not explain US exceptionalism; rather, it is the relative place of public opinion vis-à-vis the political decision making process.

In Europe, public opinion has been more passenger than driver compared to the US. This in turn raises the question of whether the real explanation for the Atlantic divide lies in our different political institutions. In contrast to the US, European political elites have had more autonomy to pursue unpopular policies -- suggestively, capital punishment was abolished at the start of a seven-year presidency in France. Another obvious difference in our political systems is that European countries are far from centralized and their parliamentary systems discourage regional and single-issue politics. As a result, European governments have been able to impose such an unpopular reform because bipartisan action and strong political parties provided cover against voter disapproval. A corollary of this is a political culture in which the populations grasp that not every political decision ought to be a referendum, literally or though politicians chasing the polls. The European Convention of Human Rights has further entrenched and extended abolition.

The Supreme Court almost suppressed capital punishment in Furman v. Georgia in 1972, but in reality any central government initiative would involve the daunting task of changing the Constitution. Any federal action to limit capital punishment would de facto face super-majority rules in the Senate. Since criminal law is largely in the hands of the individual states, any effort to ban the death penalty must coordinate legislative, electoral and judicial actions in the thirty-five states that continue to impose capital punishment. The only centralized political means for abolition would be to declare capital punishment unconstitutional. Any momentum in this respect in US courts was reversed by conservative federal courts after the late 1970s. Since prosecutors and judges are elected -- a politicization of the judicial process entirely foreign to Europe -- they generally follow their committed voters.

It is tempting to point to deep-seated, historical conservative values in order to explain the survival of capital punishment in the United States. A long legacy of local violence and retributive justice dates back from its origins as a frontier land, it might be claimed. For instance, execution was widely and extensively adopted in the South in the nineteenth century as proportionate to the crime of murderers, rapists, runaway slaves and their accomplices -- arguably, this culture not only survived but spread with migrations to the West. Certainly this historic explanation maps relatively neatly onto the geographic distribution of states with the greatest proclivity to execute: two thirds of executions over the past generation have taken place in just five southern states, Florida, Georgia, Louisiana, Texas and Virginia. Similarly, this is consistent with different levels of support for the punishment in different states. For these reasons it could provide a prima facie account of the divide between the United States and Europe.

In searching for explanations there is a danger that the premise of pro-capital punishment America and anti-capital punishment Europe is reinforced rather than questioned. In reality the divide is a relatively recent development, perhaps set in stone in perceptions by moments of mutual cultural hostility between Europe and America. A striking antidote to the view that execution is in America's blood is provided by the historical record of various States being in the vanguard of death penalty reform: Michigan abolished capital punishment for ordinary crimes in 1846, and northern States led the way in banning public executions. The Atlantic divide, in other word, seems a relatively recent phenomenon that might quite conceivably be reversed. As with much else, the similarities between Americans and Europeans are outweigh the differences.