The most important aspect of the recent U.S. Supreme Court ruling on the constitutionality of executing juveniles was its consideration of evolving international views of “cruel and unusual punishment.” The court wisely noted the rising global tide of revulsion against governments killing their younger citizens, no matter what their crime, and ruled that juvenile death sentences in the United States are unconstitutional. Similarly, in the future, the court should heed burgeoning world condemnation of the U.S. death penalty for persons of any age.
Since 1990, the United States has been in the deplorable company of the few remaining nations—Iran, China, Congo, Yemen, Nigeria, Pakistan, and Saudi Arabia—that still put young people to death for crimes. America, famous for the extent of its individual freedoms, should not be on any list with such despotic third world abusers of human rights. In fact, Justice Anthony Kennedy, who wrote the majority opinion for the court, noted the “stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”
Yet why stop at ending the death penalty only for juveniles? The United States is also one of a small group of countries, many of which are severe abusers of human rights, that allow the death penalty to be used at all. The United States needs to exit this nefarious club, too.
As discussed at a recent Independent Institute policy forum, “The Death Penalty on Trial,” rising world opposition to the death penalty is not the only reason for ending it within U.S. borders; opposition to this ultimate sanction is also increasing domestically. The principal reason is the incompetence of the government in carrying out the penalty. DNA tests of inmates on death row have exonerated a sizeable number of individuals. Add to this the disproportionate and unfair sentencing of African-Americans to death. Finally, rigorous studies have shown that the death penalty does not deter future capital crimes.
Then despite the softening of public support for capital punishment, why do many Americans still support a barbaric penalty that belongs in a previous century? The answer is simple: a desire for revenge. Many people believe that violent individuals who commit heinous crimes—such as Christopher Simmons, the 17-year old defendant in the case before the Supreme Court, who broke into a woman's house and murdered her by throwing her into a river bound and gagged—deserve to be executed.
Simmons, and individuals like him, deserve to be severely punished for their atrocious deeds. As an opponent of the death penalty, I have been asked whether I would desire revenge on the murderer of a close friend or family member. That question is not the relevant one though. The critical question is whether society is better off if I take revenge or if the state does it for me. The answer is an emphatic “no.”
It is dangerous to give governments—whether state or federal—the power to kill people. And it's not only because of their aforementioned incompetence in convicting the right people. Today, such governments within the United States have vastly more power than the nation's Founders originally intended. They could easily misuse that power to execute people for political reasons. If you think this possibility is remote in the United States, just think about political pressures after 9/11 to do something about “terrorists.” The Bush administration jailed people indefinitely without charging them, giving them access to a lawyer, or trying them in an independent court that would give them due process. The administration's kangaroo military tribunals—which have been specifically created outside the normal civilian or military justice systems, don't meet such standards of due process, and are run by people who ultimately report to President Bush—can hand down death sentences. And, in the wake of another catastrophic terrorist incident, the political pressure for the government to mete out death sentences would be intense.
Yet significant numbers of people held after 9/11 without due process have already been released because they ultimately were not found to be terrorists. Therefore, in the wake of a future 9/11-style terrorist attack, if the death penalty has not been abandoned or ruled unconstitutional, many innocent people could be rounded up and executed for political reasons—that is, to show the public that the government is “doing something” about terrorism. Unlike the use of other sentences, the death penalty does not permit errors to be corrected after the fact.
In a new century with world opinion changing, it is dangerous to allow usually inept governments to have the authority to kill their citizens for any reason, especially when the death penalty does not deter future violent crime, is applied unfairly on the basis of race or religion, and is not reversible. In forbidding the use of death sentences for juveniles, the Supreme Court is following enlightened trends in popular opinion. The court should also note the growing public disapproval of capital punishment in general. This anachronistic and barbaric practice should be ended so that America—one of the freest nations on earth—can rejoin the civilized world.
Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute in Oakland, CA, and author of the book, Putting “Defense” Back into U.S. Defense Policy. His newest book is, The Empire Has No Clothes: U.S. Foreign Policy Exposed (Independent Institute Books, 2004)
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