The European Prescription for Ending the Death Penalty

Electronic copy available at: http://ssrn.com/abstract=1781412

BOOK REVIEW

THE EUROPEAN PRESCRIPTION FOR ENDING THE DEATH PENALTY

WILLIAM W. BERRY III* ANDREW HAMMEL, ENDING THE DEATH PENALTY: THE

EUROPEAN EXPERIENCE IN GLOBAL PERSPECTIVE (Palgrave Macmillan 2010). 260 pages. £55.00.

Introduction ................................................................. 1004 I. Ending the Death Penalty: The European Experience ......... 1006 A. Germany .......................................................... 1008 B. Great Britain ..................................................... 1009 C. France ............................................................. 1011 D. Lessons from the European Experience ..................... 1012 II. Why the European Model Has Not (So Far) Led to American

Abolition .............................................................. 1014 III. What the European Experience Says about the Persistence

Debate and the Likelihood of Abolition .......................... 1020 A. The Debate ....................................................... 1020 1. Cultural Conceptions ........................................ 1020 2. Anti-exceptional Conceptions .............................. 1021 B. Insights from the European Experience ...................... 1023 C. A Path to Abolition ............................................. 1023

[America’s] stubborn attachment to capital punishment puzzles Europeans, who see abolition as a logical outgrowth of democratic development and who are mystified about why a country so similar to themselves in so many ways can behave so differently.1

* Assistant Professor, University of Mississippi School of Law; D. Phil. Candidate, University of Oxford (UK). J.D., Vanderbilt University School of Law; M.Sc., University of Oxford (UK); B.A., University of Virginia. I would like to thank Allen Boyer for his helpful suggestions and Kathleen Ingram for her excellent research assistance on this Book Review. 1. William A. Schabas, Introduction to HANS GÖRAN FRANCK, THE

BARBARIC PUNISHMENT: ABOLISHING THE DEATH PENALTY 1, 21 (William A. Schabas ed., 2003).

Electronic copy available at: http://ssrn.com/abstract=1781412

1004 WISCONSIN LAW REVIEW

INTRODUCTION

The United States of America remains the only Western democracy that continues to use capital punishment.2 Europeans, particularly in the academic community, continue to express outrage and disbelief at its persistence, especially given America’s twentieth-century role as the world leader in challenging abuses of human rights.3

This sociological question—why the United States retains the death penalty—has spawned a burgeoning academic literature.4 This literature has both deepened cultural understandings of the death penalty and raised questions concerning the degree to which (and in what ways) the United States is “exceptional” when compared to other Western democracies.5

What has been missing from these discussions is a thorough account of the abolition of the death penalty in European nations.6 Such

2. See, e.g., ROGER HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A

WORLD-WIDE PERSPECTIVE 23–27 (4th ed. 2008). 3. Id. at 125–28; Schabas, supra note 1. 4. See, e.g., DAVID GARLAND, PECULIAR INSTITUTION: AMERICA’S DEATH

PENALTY IN AN AGE OF ABOLITION (2010) [hereinafter PECULIAR INSTITUTION]; ANDREW HAMMEL, ENDING THE DEATH PENALTY: THE EUROPEAN EXPERIENCE IN

GLOBAL PERSPECTIVE (2010); JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL

PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE (2003); FRANKLIN E. ZIMRING, THE CONTRADICTIONS OF AMERICAN CAPITAL PUNISHMENT (2003); Susan A. Bandes, The Heart Has Its Reasons: Examining the Strange Persistence of the American Death Penalty, in CRIMINAL LAW CONVERSATIONS 635 (Paul H. Robinson, Stephen P. Garvey & Kimberly Kessler Ferzan eds., 2009); William W. Berry III, American Procedural Exceptionalism: A Deterrent or a Catalyst for Death Penalty Abolition?, 17 CORNELL J.L. & PUB. POL’Y 481 (2008); Nora V. Demleitner, The Death Penalty in the United States: Following the European Lead?, 81 OR. L. REV. 131 (2002); David Garland, Capital Punishment and American Culture, 7 PUNISHMENT & SOC’Y 347 (2005) [hereinafter Capital Punishment and American Culture]; David F. Greenberg & Valerie West, Siting the Death Penalty Internationally, 33 LAW & SOC. INQUIRY 295 (2008); Schabas, supra note 1, at 21–24; Carol Steiker, Capital Punishment and American Exceptionalism, in AMERICAN EXCEPTIONALISM AND

HUMAN RIGHTS (Michael Ignatieff ed., 2005). 5. See Schabas, supra note 1, at 21–24. The term “American Exceptionalism,” as coined by Alexis de Tocqueville in the 1830s, “has historically referred to the perception that the United States differs qualitatively from other developed nations, because of its unique origins, national credo, historical evolution, and distinctive political and religious institutions.” Harold Hongju Koh, On American Exceptionalism, 55 STAN. L. REV. 1479, 1481 n.4 (2003). Sociologists such as Louis Hartz, Werner Sombart, and Seymour Lipset further developed the modern conception of American exceptionalism, using “it to explain the strength of ‘the liberal tradition’ and the weakness of working class radicalism in the United States.” Capital Punishment and American Culture, supra note 4, at 348. 6. See Greenberg & West, supra note 4, at 312 (“[T]his literature sees the United States as exceptional and seeks to explain its distinctiveness in terms of

2011:1003 European Prescription 1005

an account helps to address a number of questions: whether culture plays a significant role in the abolition of capital punishment; whether the United States is exceptional in a way that explains the persistence of its death penalty; and whether the United States is mirroring the same trajectory of its European counterparts, albeit at a slower pace.

At its heart, the entire academic discussion is subconsciously both predictive and prescriptive. In other words, explaining the persistence of the death penalty can both predict—will the United States ever abolish the death penalty? If so, how and when?—and prescribe—is there a way to advance the United States along the path to abolition, either by following the path of the Europeans, or following a new path that takes into account the cultural distinctiveness or other exceptional features of the United States?—the abolition of capital punishment in America.

In his recent book, Ending the Death Penalty: The European Experience in Global Perspective, German law professor Andrew Hammel attempts to provide the missing piece to the conversation through a careful study of the death penalty’s demise in Europe.7 He focuses on three nations—Germany, Great Britain, and France—and provides a detailed, play-by-play analysis of the events that led to abolition of the death penalty in each country. In addition to the value of this history itself, Hammel attempts to situate these parallel developments in a broader context by linking them together to delineate the European path to abolition.8 Finally, Hammel tackles the meta- question—why these patterns have not become manifest in the United States—and outlines his view of death-penalty persistence in America.

This Book Review first describes the conclusions reached by Hammel, as drawn from his compelling narrative of three parallel abolitions. The Review then assesses Hammel’s arguments as to why the European experience has seemingly had no impact in the United States. Finally, this Review situates Hammel’s contributions within the broader debate, arguing that insights from the European experience can serve as a catalyst for death-penalty abolition in the United States.

American political institutions and culture without explaining abolition in Europe.” (emphasis added)). 7. See generally HAMMEL, supra note 4. Andrew Hammel is currently an Assistant Professor of American Law at Heinrich-Heine University in Düsseldorf, Germany, and has previously worked on capital cases as a staff attorney for the Texas Defender Service. Andrew Hammel, LL.M., HEINRICH-HEINE-UNIVERSITÄT

DÜSSELDORF, http://www.jura.uni-duesseldorf.de/aal/andrewhammel.shtml (last updated Oct. 1, 2011). 8. HAMMEL, supra note 4, at 149–88.


I. ENDING THE DEATH PENALTY: THE EUROPEAN EXPERIENCE

Before offering his case studies, Hammel frames the discussion by describing the divergence between the United States and Europe on capital punishment.9 He outlines the familiar history of the United States leading the movement toward abolition in the nineteenth century before halting its progression, while the Europeans moved toward abolition and never ceased.10 Interestingly, Hammel then explores a common question—what explains the worldwide popularity of capital punishment?—and the ineffectiveness of a common solution (improved public education about the death penalty).11

As to the popularity question, Hammel believes that popular support for the death penalty stems in part from the natural human desire for revenge, and he cites evolutionary biology and psychology to substantiate these ideas.12 Hammel conceptualizes the popular support for capital punishment in light of broader findings about the societal impulse to punish: “Another recent review of the literature on cross-cultural intuitions of justice found ‘striking’ evidence that across demographics, even ‘across cultures, humans share nuanced intuitions (1) about what constitutes serious wrongdoing, (2) that serious wrongdoing should be punished, and (3) about the relative blameworthiness of offenders.’”13

Hammel also offers a second, unrelated theory that he terms the “stabilization effect.”14 The idea is that the ongoing presence of capital punishment has a legitimating effect, both internally (in rationalizing the process for those involved in each case) and externally (in providing a sense that the extensive process is a type of “super due process”).15

9. Id. at 7–24. 10. Id. 11. Id. at 25–51. 12. Id. at 29–32. 13. Id. at 31 (quoting Paul H. Robinson, Robert Kurzban & Owen D. Jones, The Origins of Shared Intuitions of Justice, 60 VAND. L. REV. 1633, 1637, 1639 (2007)). 14. Id. at 36. For a similar argument concerning the power of procedure and its influence on the retention of capital punishment, see Berry, supra note 4, at 489–90. 15. HAMMEL, supra note 4, at 36. For more on the concept of legitimation through usage, see Berry, supra note 4, at 489–90 (arguing that belief in procedure allows for expression of retributive instincts); Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 HARV. L. REV. 355, 360 (1995) (quoting Margaret J. Radin, Cruel Punishment and Respect for Persons: Super Due Process for Death, 53 S. CAL. L. REV. 1143 (1980)).


This effect provides the public with a belief that the death penalty is fair and just.16

As to the public education solution, Hammel expresses a deep skepticism that educating the public about capital punishment can remedy the intellectual deficit that he observes in such widespread approval of capital punishment.17 In his discussion he cites and rejects the “Marshall hypothesis”—the notion “that Americans are generally ignorant about capital punishment, but would change their minds if presented with evidence of its injustice and inefficiency.”18 Hammel argues that, at least in practice, the hypothesis does not provide a successful path to abolition.19 He emphasizes this point through the historical record, noting no recorded instance of abolition by “a popular, grass-roots political movement.”20

Interestingly, then, education and rational discussion, Hammel argues, will never result in the abolition of the death penalty21 because the predisposition toward the death penalty—partly from an evolutionary, emotional need for vengeance—inhibits any popular or “democratic” movement toward abolition.22

16. HAMMEL, supra note 4, at 36. 17. Clearly, Hammel’s perspective is consistent with European academics in viewing the use of the death penalty as a human rights violation. 18. HAMMEL, supra note 4, at 41. The Marshall hypothesis comes, of course, from Justice Thurgood Marshall’s opinion in Furman v. Georgia, where he famously opined that American views against capital punishment would be different if Americans were informed on the issue. 408 U.S. 238, 362–63 (1972) (Marshall, J., concurring) (“It has often been noted that American citizens know almost nothing about capital punishment. . . . This information [about capital punishment] would almost surely convince the average citizen that the death penalty was unwise . . . . I believe that the great mass of citizens would conclude on the basis of the material already considered that the death penalty is immoral and therefore unconstitutional.”). 19. HAMMEL, supra note 4, at 46–48. 20. Id. at 49. 21. See id. at 50. Hammel does not suggest that education could never accomplish the goal of abolition; he just claims that it is highly unlikely. Id. Indeed, he identifies six preconditions to public education resulting in political change: (1) “Large numbers of capital punishment supporters must decide that educating themselves about the issue is a worthwhile investment of their time”; (2) such individuals “must expose themselves primarily to information that tends to undermine support for capital punishment” (information about innocent individuals on death row) as opposed to “information that reinforces support for it” (reports of violent crimes); (3) they must assimilate such information without bias; (4) “[t]hey must . . . change their opinion” by “find[ing] the arguments against capital punishment persuasive”; (5) “[t]hey must maintain their . . . stance against capital punishment in the face of . . . opposition” of peers and family; and (6) “[t]hey must decide that capital punishment is such an important issue that it will decisively shape their political behavior.” Id. 22. See id. at 29–34. Indeed, a majority of Europeans still support the use of capital punishment. Id. at 26–28.


If Hammel is correct in his framing of the problem—i.e., how does one achieve what is “morally right” (abolition of capital punishment) in a democratic society when implementing such a change will never enjoy majority support—then the story of how three European democracies abolished the death penalty becomes all the more interesting (and perhaps instructive) to the question of death-penalty persistence in the United States.

A. Germany

Hammel’s first case study discusses Germany, which abolished capital punishment abruptly in the aftermath of the Second World War.23 As Hammel explains, Germany ironically put the “cart before the horse” and abolished the death penalty in a reactionary moment, placing it in a difficult-to-amend constitutional provision that resulted in a fifteen-year political debate over its abolition.24

Despite the uniqueness of the German situation—specifically the country’s sudden abolition of the death penalty and the influence of its recent history—Hammel identifies a number of themes in the German debate on abolition that were present in other abolitionist countries.25 For instance, the debate in Germany dismissed public opinion entirely, despite the popular support for reinstatement during the debates of the 1950s.26 The reasons for ignoring public sentiment, according to Hammel, included the public’s lack of expertise in criminological matters, the variability of public opinion, the belief in the parliamentarian system (a sort of “Burkean trusteeship”), and the notion that public support for the death penalty rested on emotional reactions to crimes rather than reasoned, progressive thought.27

Importantly, elites on both sides of the debate concurred in excluding popular sentiment concerning capital punishment from the conversation.28 Hammel explains, “[h]ere we see members of the elite, speaking of and to themselves, drawing a clear line of demarcation between the kinds of arguments that ‘should’ count among highly

23. Id. at 63. Abolition occurred after Germany adopted a prohibition against the death penalty in Article 102 of the German Basic Law. Id. Article 102 states, “[c]apital punishment is abolished.” Id. 24. Id. at 82–83. 25. Id. at 82–84. 26. Id. at 83. 27. Id. at 83–84. Edmund Burke’s model of representative democracy views representatives as “trustees” of the people with sufficient autonomy to deliberate and act in favor of the greater common good and national interest, even if it means going against the short-term interests of their own constituencies. Id. 28. Id. at 84–85.


educated jurists and civil servants, and those that one encounters on the pages of a tabloid or in a bar-room debate.”29

The story of Germany’s abolition of the death penalty, according to Hammel, is one of reactionary abolition in the aftermath of World War II followed by a debate of the elites concerning its propriety, never reaching a sufficient super-majority to reverse the constitutional provision.30 The most important point Hammel emphasizes here is that abolition occurred and persisted independent of, and perhaps in spite of, pro-death-penalty public opinion.31

B. Great Britain

The abolition of capital punishment in Great Britain is the story of a gradual two-century process in which cultural elites slowly changed the opinions of the elites in Parliament.32 Hammel begins by describing the harsh and arbitrary use of the death penalty in the eighteenth century under the “bloody codes,” which provided a mandatory death penalty for more than two hundred crimes.33 The first small step toward abolition occurred in the middle of the nineteenth century, when Britain eliminated the death penalty for two-thirds of capital offenses.34 Hammel attributed this parliamentary opposition to the widespread use of the death penalty to a rising class of elites influenced by Sir Samuel Romilly, and later by utilitarian philosopher Jeremy Bentham.35 Romilly opposed the mandatory death penalty for many years in numerous speeches to the House of Commons, and Bentham’s influential writings on capital punishment continued to provide

29. Id. at 85. 30. Id. at 82–85. 31. Id. 32. Id. at 86–115. Hammel importantly points out that the English legal system, unlike the French and German legal systems, was a common law system, not a civil law (code-based) system. Id. at 86. 33. Id. at 87. To capture the cruelty of the “bloody code,” Hammel cites English legal scholar William Blackstone who observed at the time that “[i]t is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than a hundred and sixty have been declared by act of Parliament to be felonies . . . worthy of instant death.” Id. (quoting 2 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 286 (Chicago, Callaghan & Co. 3d. rev. ed. 1884)). 34. Id. at 91. 35. Id. at 90–91. Hammel also discusses the influence of death-penalty advocate John Stuart Mill, who was in favor of limiting the death penalty but adamantly opposed to abolition. Id. at 94–96.


philosophical support for reducing use of the death penalty in Great Britain.36

A second shift occurred in the twentieth century, when abolition of the death penalty became a serious possibility.37 Hammel’s narrative focuses on the influence of politician Sydney Silverman.38 Silverman, “a resourceful and indefatigable parliamentary operator,” continually advanced the cause of abolition in Parliament over the course of two decades.39 As with Germany, Parliament’s debates invoked the concept of Burkean trusteeship, overtly ignoring the “fickle” public opinion concerning the death penalty.40

Over the course of the 1950s and 1960s, the views of British elites began to shift in the direction of abolition.41 In particular, the rise in crime in the 1950s resulted in the creation of “penal welfarism,” blurring party lines as Parliament grappled with the need to improve its criminal-justice policies.42 Part of this “modern” approach to criminal-justice policy, which eschewed public opinion, was a continued questioning of capital punishment and increased open-mindedness toward abolition among the parliamentary elites across party lines.43

When the Labour Party won a narrow majority in 1964, the government of new Prime Minister Harold Wilson—along with the leadership of Silverman—passed a temporary abolition bill in 1964.44 Parliament then abolished the death penalty permanently in 1969, one year after Silverman’s death.45

36. Id. at 89–92. 37. Id. at 96–109. 38. Id. at 97. 39. Id. at 98. As described by Hammel, Silverman’s success was measured, challenging first the use of hanging and later pushing for abolition, but he continued to push the issue before Parliament. See id. 40. Id. at 97–99. 41. Id. at 108. 42. Id. Hammel cites the work of scholar Tim Newburn for this idea. Id. at 111–12 (quoting Tim Newburn, The Abolition of Capital Punishment in Britain: Political, Cultural, and Penal Change in the Mid-Twentieth Century (forthcoming 2011)). Specifically, the rise of the social science disciplines criminology and psychology served as means for the elites to understand criminal justice and as a basis for making criminal-justice policy. Id. at 111. 43. Id. at 108–12. Part of the British elites’ disdain for public opinion was its responsiveness to current events. Sentiment for abolition would rise with the presence of injustice and would fall with the presence of particularly brutal crimes. Id. at 111. 44. Id. at 110. 45. Id. at 112.


C. France

In France, like England and Germany, Hammel describes the death penalty’s demise as unilateral action by political elites whose opinions evolved gradually in favor of abolition.46 Elites, over time, became increasingly disenchanted with both the guillotine and the death penalty generally.

As with Germany and Great Britain, Hammel again emphasizes the importance of cultural voices influencing elitist opinion in favor of abolition.47 Hammel argues that Victor Hugo’s novel, The Last Day of a Condemned Man, had a lasting effect on the view of capital punishment among French elites.48 According to Hammel, Hugo’s deontological approach emphasized the human dignity of the condemned, separating the crime from the act of execution.49 In addition, Hugo’s novel highlighted the torture involved in waiting for death while subtly suggesting that the inevitable progress of society would one day lead to the abolition of such barbaric practices.50 While the nineteenth century saw the opinion of the French elite swing for and against abolition, Hammel believes that Hugo’s underlying themes and unitary focus set the stage for French abolition.51

In the final push to abolition in the twentieth century, Hammel focuses on the writing of Albert Camus and the work of Robert Badinter as key motivating forces.52 In 1957, the same year that he won the Nobel Prize, Camus wrote an influential essay, “Reflections on the Guillotine,” that emphasized, like Hugo, the impact of execution on human dignity.53 Badinter, a French professor and lawyer, became increasingly involved in promoting the cause after defending several capital defendants.54

According to Hammel, these influences did little to affect the pro-death-penalty public opinion in France during the mid-twentieth century, as a series of brutal crimes continued to ferment opposition. Badinter himself recognized that grass-roots efforts to abolish the death

46. Id. at 116–45. 47. Id. at 116. Hammel also suggests that the writings of Voltaire, Beccaria, and Rosseau, among others, influenced the elite philosopher class of French leaders. Id. at 116–19. 48. Id. at 120–29. 49. Id. at 124–25. 50. Id. 51. Id. at 120–29. 52. Id. at 133–45. 53. Id. at 133–34. 54. Id. at 135.


penalty through public support were futile.55 Badinter thus made alliances within the elite, including Socialist Party politician Francois Mitterand, who was elected prime minister in 1981.56 Capitalizing on the political shift to the left and the consensus among political elites, France abolished the death penalty in September 1981, despite public opinion that favored retention.57

D. Lessons from the European Experience

Drawing on his case studies, Hammel synthesizes the European model of abolition in three different conceptual frames—phases of abolition, the need for political professionals, and structural preconditions for abolition.58 According to Hammel, abolition requires two preliminary phases: (1) taking distance from vengeance and (2) identification with the offender.59

The former concept emerges from an Enlightenment understanding of punishment based on rational thinking rather than emotional instinct.60 Hammel explains, “[t]he common man might react to descriptions of heinous crimes with an atavistic cry for vengeance, . . . but the thinking man showed self-control by distancing himself from his initial emotional reaction and subjecting it to critical analysis.” 61

The latter concept becomes important, Hammel suggests, because the offender moves from being a monster to a subject—a person who also becomes a suffering victim.62 Once the paradigm had shifted from viewing the condemned as the appropriate object of vengeance to a

55. Id. at 138. Badinter explained: To all the arguments that a person could reform, that there was the risk of judicial error, that the lottery of the criminal court meant a man’s life depended on a thousand imponderable factors, to all the moral, historical, scientific, and political considerations, the supporters of the death penalty had one constant response: the criminals must die because death is the only suitable punishment for such crimes.

ROBERT BADINTER, ABOLITION: ONE MAN’S BATTLE AGAINST THE DEATH PENALTY 11 (2008). 56. HAMMEL, supra note 4, at 141–42. 57. Id. at 140–43. 58. Id. at 149–88. 59. Id. at 149–61. 60. Id. at 149–50. Beccaria offers perhaps the most famous of such critiques against the tradition of harsh punishments in Europe, focusing in particular on the use of capital punishment. Id. 61. Id. at 150. Indeed, Hammel notes that such opposition to capital punishment became “a mark of social distinction” among European elites and became central to the movement toward abolition. Id. at 151. 62. Id. at 152–57.


subject entitled to human dignity, European elites exhibited a growing disgust toward the death penalty.63

In addition to the two phases of abolition, Hammel emphasizes the presence of liberal professionals as essential to the European model.64 These elite individuals, namely lawyers, bought into three distinct tropes taken from nineteenth-century thinkers, which convinced them of the need for abolition.65 First, European elites focused “on the needless suffering of the condemned, [which] prompted [both] growing disgust at the inhumanity of execution and growing interest in the subjective experience of the [sentenced].”66 Second, there was a growing “liberal political critique of capital punishment as a trapping of absolutist rule no longer suited to Europe’s increasingly democratic political landscape.”67 Finally, and perhaps less important for Hammel, some elites embraced a parallel “radical . . . critique of capital punishment as a tool of oppression used by the bourgeois to keep the dispossessed in check and enforce unjust property relations by state terror.”68

Hammel explains: “The story of abolition in the countries under review here is the story of how abolitionist arguments and attitudes very gradually spread among elites.”69 The lawyers, following figures such as Silverman and Badinter, played an increasingly prominent role in abolition in the twentieth century, both as legislators and litigators, influencing the sentiment of the elite in favor of abolition.70

Finally, Hammel argues that two necessary structural preconditions must exist in order for abolition to occur: a centralized parliamentary political system and a cohesive group of elites.71 The centralized parliamentary political system provides the benefit of convincing only one national legislature to support abolition.72 The concentration of the ruling elites in one city—as was the case in Paris and London—provides an added benefit by mitigating various external, regional influences.73 While the right fringe of center-right political

63. Id. at 152–53. Hammel points out the work of Hugo, Thackeray, and Dostoyevsky as central to communicating this theme through their influential novels. Id. at 152–54. 64. Id. at 159. 65. Id. at 161–62. 66. Id. at 161 (internal quotation marks omitted). 67. Id. (internal quotation marks omitted). 68. Id. (internal quotation marks omitted). 69. Id. at 162 (emphasis added). 70. Id. at 164. 71. Id. at 169–78. 72. Id. at 169. 73. Id. at 169–70.


parties still advocated retention, the issue of abolition was largely one of consensus among the elites by the middle of the twentieth century.74

Thus, for Hammel, while each country’s abolition of the death penalty was essentially the result of national circumstances and priorities, the common elements identified above were prerequisites to—or at the very least, facilitated—the abolition of the death penalty in these three European countries.

II. WHY THE EUROPEAN MODEL HAS NOT (SO FAR) LED TO AMERICAN ABOLITION

In the thirty years since 1981, when the European Union states abolished the death penalty, European countries have become increasingly surprised at its retention outside of Europe, particularly in the United States. Franklin Zimring summarizes this modern view:

[T]he modern European view is adamant that no civilized state should be permitted the power to employ execution as a criminal punishment. In the European rhetoric, the absence of a death penalty is a defining political matter, a question of the proper constitution of a modern state, not a criminal justice policy choice.75

Nonetheless, this perspective appears to have had little influence on the United States, at least with regard to the ultimate decision of abolition. As Hammel explains, the United States and the European countries followed the same general path through the nineteenth century, and even into the twentieth century.76 The 1960s were a time of continued convergence, but in the 1970s the United States began to diverge from the European trajectory.77 America followed the reinstatement of its death penalty in the 1970s with a wave of legislation resulting in a dramatic increase in the American prison

74. Id. at 170–72. 75. ZIMRING, supra note 4, at 45. 76. HAMMEL, supra note 4, at 202. 77. The United States almost abolished the death penalty despite the divergence. The Supreme Court’s decision in Furman v. Georgia, which held that the death penalty as applied constituted “cruel and unusual punishment,” had the temporary effect of banning the death penalty in the United States. 408 U.S. 238, 239–40 (1972) (per curiam). The Court, however, reaffirmed the use of capital punishment in Gregg v. Georgia and several companion cases four years later. 428 U.S. 153, 206–07 (1976). Ironically, three of the seven justices in the majority in Gregg later repudiated their positions, meaning the United States could have been the leader in abolition instead of the outlier it has become. See, e.g., William W. Berry III, Repudiating Death, 101 J. CRIM. L. & CRIMINOLOGY 441, 442–44 (2011).


population, while the European countries adopted a much milder approach to criminal justice, particularly in comparison to America.78

In light of this divergence, Hammel attempts to explain the failure of the European model of abolition in the United States. Specifically, he argues that the divergence was the result of cultural and social interplay and “the exceptional structural characteristics of the American justice system.”79

Hammel frames his argument using a conceptual framework suggested by Dieter Reicher, whose 2003 study comparing Austria and England indicated a correlation between absolutism and leniency in criminal justice.80 Reicher’s approach asks two central questions to understand criminal justice policy: (1) “which social groups influence criminal justice policy,” and (2) “how much respective influence do they have?”81 Hammel finds this simple approach particularly valuable in light of the academic literature. He claims that “[l]egal scholars often focus on laws [as they] exist on the books, rather than the process that led to their creation . . . [while] sociologists and criminologists . . . tend to focus . . . on the origins and nature of criminal behavior [and] the state’s response.”82

Hammel asserts that what is important is “the transition from public mood to public policy.”83 For Hammel, what separates Europe and the United States in assessing this transition are the American system of federalism and the heightened level of public involvement in policy-making in the United States.84

Hammel is certainly right, at least on a basic level, on both accounts. The system of federalism in the United States, with fifty-one different jurisdictions, makes a wholesale abolition of the death penalty an extremely unlikely legislative feat. Congress could, in theory, abolish the death penalty, but such questions have traditionally been almost exclusively state matters. Further, given the controversy surrounding the death penalty in the United States, the political cost of

78. Franklin Zimring has commented: “comparing increases in incarceration rates over the last three decades in Europe to those in the United States is like comparing a haircut to a beheading.” Marie Gottschalk, The Long Reach of the Carceral State: The Politics of Crime, Mass Imprisonment, and Penal Reform in the United States and Abroad, 34 LAW & SOC. INQUIRY 439, 466 (2009) (citing David Downes, Visions of Penal Control in the Netherlands, in 36 CRIME, PUNISHMENT, AND

POLITICS IN COMPARATIVE PERSPECTIVE 93, 103 (Michael Tonry ed., 2007)). 79. HAMMEL, supra note 4, at 206–07. 80. Id. at 207. 81. Id. 82. Id. 83. Id. at 207–08. 84. Id. at 208, 210.


attempting to legislatively mandate abolition on the federal level would likely preclude abolition by that process.85

Likewise, a second cause of American divergence is the power that the federal system accords to local constituencies to control the administration of criminal justice.86 The election of prosecutors serves as the primary means of local control, with the allocation of county resources playing an additional role in the death penalty’s use.87 Hammel correctly asserts that there is not a counterpart on the other side of the pond.88

Hammel cites other differences between American and European elites as well: the European countries have traditionally relied on expert opinion in developing their criminal justice policy; in America, on the other hand, local communities and popular opinion have played a much greater role in defining criminal justice policy.89 If anything, American politicians and prosecutors have sought to be responsive to popular opinion.90 Thus, as Hammel explains, American social elites have a more limited ability to push through progressive, counter-majoritarian social change than European elites.91

In many ways, these ideas are not new—that the federal system serves as an impediment for the abolition of the death penalty in America; that local control of criminal justice policy will always allow for pockets of pro-death-penalty sentiment to flourish; and that elites play a different role in Europe than in the United States.92 While important, these concepts do not, by themselves, fully account for the retention of capital punishment in America and its divergence from Europe.93

85. Indeed, many individuals have paid a political cost for opposing the death penalty in the United States. See HOOD & HOYLE, supra note 2, at 354–58. Some state judges have even lost their positions for voting certain ways in death cases. Id. at 355–56. Others have waited until politically opportune times to act against the death penalty. Id. at 357–58. Even the United States Supreme Court justices who have repudiated the death penalty in recent years have done so only in retirement, or at the very end of their careers on the bench. See Berry, supra note 77, at 442–44. 86. See, e.g., Capital Punishment and American Culture, supra note 4, at 364–65. 87. Id. at 363. 88. See HAMMEL, supra note 4, at 212. 89. Id. at 217–24. 90. Id. at 220. 91. Id. at 218. 92. Capital Punishment and American Culture, supra note 4, at 362–63. 93. To be fair, Hammel acknowledges that these ideas do not provide a complete answer to the question of European-American divergence. See HAMMEL, supra note 4, at 206–07.


Further, Hammel offers no explanation of why these differences became significant at the time that they did. The differences existed prior to the divergence in policy, and there needs to be an account of why they made a difference when they did if they are to be understood as the reason for the divergence. As David Garland has emphasized, any explanation of sociological change (or absence of change) must account for the temporal component of the phenomenon at issue.94

Nonetheless, Hammel’s broader approach, even with these shortcomings, still holds promise. The connection between public sentiment and public policy may indeed play an explanatory role. And yet, while Hammel’s suggested approach highlights an important and undeveloped angle for analysis, his book does not do enough to fully develop this connection.

It is important to separate two ideas when attempting to understand this divergence between America and Europe. There is divergence on the question of complete abolition, but there has been increasingly less divergence in the actual use of capital punishment. While Europe abolished the death penalty in the 1970s and 1980s and the United States did not, the United States in the last ten years has moved significantly in the direction of de facto abolition, with a continuing decline in the use of the death penalty both in the number of executions and new death sentences.95

Two phenomena largely explain this decline: (1) the continued discovery of individuals on death row that are actually innocent of the crimes of which they were convicted,96 and (2) the increasing use of life

94. Capital Punishment and American Culture, supra note 4, at 349. 95. See Facts About the Death Penalty, DEATH PENALTY INFO. CTR., http://www.deathpenaltyinfo.org/documents/FactSheet.pdf (last updated Sept. 14, 2011) (providing facts concerning the number of executions on an annual basis). See generally Jeffrey L. Kirchmeier, Another Place Beyond Here: The Death Penalty Moratorium Movement in the United States, 73 U. COLO. L. REV. 1 (2002); Michael L. Radelet, The Role of the Innocence Argument in Contemporary Death Penalty Debates, 41 TEX. TECH L. REV. 199, 207–10 (2008) (noting that the gradual trend moving away from the death penalty is particularly visible over the past thirty years); Aaron Scherzer, Note, The Abolition of the Death Penalty in New Jersey and Its Impact on Our Nation’s “Evolving Standards of Decency”, 15 MICH. J. RACE & L. 223 (2009). 96. See David Grann, Trial by Fire, NEW YORKER, Sept. 7, 2009, at 42 (discussing the case of Cameron Todd Willingham, who was found to be factually innocent after his execution); George Ryan, Governor, Illinois, Address at Northwestern University College of Law: I Must Act (Jan. 11, 2003), in AUSTIN

SARAT, MERCY ON TRIAL: WHAT IT MEANS TO STOP AN EXECUTION 163, 179 (2005). Indeed, the system is rife with error. See generally Jay D. Aronson & Simon A. Cole, Science and the Death Penalty: DNA, Innocence, and the Debate Over Capital Punishment in the United States, 34 LAW & SOC. INQUIRY 603 (2009); Andrew Gelman


without parole as a sentencing alternative to the death penalty.97 Beginning in the late 1990s, a series of events led to these increasing doubts about the use of the death penalty, particularly the risk of the execution of an innocent individual.98 In 1991 and 1994 respectively, Supreme Court Justices Lewis Powell and Harry Blackmun renounced the death penalty based in part on their perceptions of error.99 In 2000, Illinois Governor George Ryan imposed a moratorium on the death penalty after a study discovered that thirteen residents of the state’s death row were actually innocent.100 Columbia law professor James Liebman’s 2001 study revealed an error rate of sixty-eight percent in capital cases.101 New Jersey and New Mexico abolished capital

et al., A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J. EMPIRICAL LEGAL STUD. 209 (2004). 97. See William W. Berry III, Ending Death by Dangerousness: A Path to the De Facto Abolition of the Death Penalty, 52 ARIZ. L. REV. 889, 919 (2010). See generally Note, A Matter of Life and Death: The Effect of Life-Without-Parole Statutes on Capital Punishment, 119 HARV. L. REV. 1838 (2006). The United States has had a decrease in the number of people sentenced to death. Id. at 1845. For example, in 1996, 317 people were sentenced to death while the number dropped to 125 in 2004. Id. at 1845–46. Also, the number of people executed annually has decreased by forty percent since 1999. Id. at 1846. 98. See Elizabeth R. Jungman, Beyond All Doubt, 91 GEO. L.J. 1065, 1066–67 (2003) (showing research indicates that approximately “seven out of every ten [people] sentenced to death in the twenty-three years [after] Furman v. Georgia were convicted in trials . . . found to be flawed,” that many of these were found to be innocent, and that five percent of defendants sentenced to death are exonerated later (footnote omitted)). Indeed, the Innocence Project reports that 273 individuals in the United States have been exonerated based on DNA evidence, seventeen of whom spent time on death row. Facts on Post-Conviction DNA Exonerations, INNOCENCE PROJECT, http://www.innocenceproject.org/Content/Facts_on_PostConviction_DNA_Exonerations.php (last visited Oct. 12, 2011). For two contrasting views on the ability of findings of innocence to end capital punishment, compare Lawrence C. Marshall, The Innocence Revolution and the Death Penalty, 1 OHIO ST. J. CRIM. L. 573 (2004), with Carol S. Steiker & Jordan M. Steiker, The Seduction of Innocence: The Attraction and Limitations of the Focus on Innocence in Capital Punishment Law and Advocacy, 95 J. CRIM. L. & CRIMINOLOGY 587 (2005). 99. See Berry, supra note 77, at 442–45 (describing how both Blackmun and Powell renounced the death penalty and investigating the basis for these reversals); Ryan, supra note 96, 178–79; see also Austin Sarat, Recapturing the Spirit of Furman: The American Bar Association and the New Abolitionist Politics, 61 LAW & CONTEMP. PROBS. 5, 9–12 (1998). 100. Henry Weinstein, Md. Governor Calls Halt to Executions, L.A. TIMES, May 10, 2002, at A16. Maryland Governor Parris Glendening also declared a moratorium on executions in his state on May 9, 2002. Id. 101. See Gelman, supra note 96, at 216–17. The American Bar Association has also conducted a number of studies of the death penalty in individual states that reach similar conclusions. See Death Penalty Moratorium Implementation Project, Death Penalty Assessments, AM. BAR ASS’N, http://www.americanbar.org/groups/ individual_rights/projects/death_penalty_moratorium_implementation_project/death_pe


punishment, with a number of other state legislatures having discussions about abolition as well.102 A series of lawsuits challenging the constitutionality of lethal injection as a method for execution led to a temporary moratorium on capital punishment while the Supreme Court considered the issue.103 And the United States Supreme Court has, in the last decade, categorically eliminated three classes of offenders from eligibility for the death penalty: mentally retarded individuals in 2002,104 minors in 2005,105 and offenders in non-homicide crimes in 2008.106

It is in the pattern of such events that Hammel’s approach might have significant explanatory power. With a more diversified range of social groups influencing policy, as opposed to the more top-down European model, the decrease in the use of the death penalty in the United States relates to the ability of these groups to wield local influence to achieve local change. Even where such groups have not been able to change policy, the events of the past decade have certainly influenced the decreasing use of the death penalty in practice.107

Thus, if one adopts the Hammel approach—understanding the path to abolition as a study of identifying the social groups that influence criminal-justice policy and measuring their respective influence—then it

nalty_assessments.html (last visited Oct. 12, 2011) (describing the ABA’s moratorium project and providing links to its studies of various states). 102. See Bill Mears, New Jersey Lawmakers Vote to Abolish Death Penalty, CNN (Dec. 13, 2007), http://articles.cnn.com/2007-12-13/politics/ nj.death.penalty_1_capital-punishment-death-penalty-richard-dieter?_s=PM:POLITICS (reporting that New Jersey abolished the death penalty, as the first state to do so in over forty years); New Mexico Abolishes Death Penalty, CBS NEWS (Mar. 18, 2009), http://www.cbsnews.com/stories/2009/03/18/national/main4874296.shtml (reporting that New Mexico abolished the death penalty). These discussions are continuing, particularly in light of the growing costs of capital punishment during an era of economic recession. See, e.g., Ian Urbina, In Push to End Death Penalty, Some States Cite Cost-Cutting, N.Y. TIMES, Feb. 25, 2009, at A1 (reporting that legislators in Colorado, Kansas, Nebraska, New Hampshire, Maryland, and Montana have introduced bills to abolish capital punishment in light of growing costs). 103. The Supreme Court upheld the constitutionality of lethal injection in Baze v. Rees, 553 U.S. 35, 47 (2008), but the method of execution still remains a contentious issue in many states, see, e.g., Paul Elias, Calif Calls Off Execution After Court Setbacks, ASSOCIATED PRESS, Sept. 30, 2010 (describing ongoing litigation over lethal injection in California); Douglas A. Berman, Details on the Botched Ohio Execution Attempt, Issue Spotting, and Seeking Predictions, SENTENCING L. & POL. BLOG (Sept. 16, 2009), http://sentencing.typepad.com/sentencing_law_and_policy/ 2009/09/details-on-the-botched-ohio-executions-issues-spotting-and-seeking-predictions.html (describing Ohio’s struggles with lethal injection in various cases). 104. Atkins v. Virginia, 536 U.S. 304, 320–21 (2002). 105. Roper v. Simmons, 543 U.S. 551, 578–79 (2005). 106. Kennedy v. Louisiana, 554 U.S. 407, 413 (2008). 107. See, e.g., HOOD & HOYLE, supra note 2, at 23–27.


is easy to understand why the European model of top-down abolition has not taken hold. In short, there has not been a unified cadre of social groups in the United States with enough influence to achieve abolition. Even worse, the decentralized nature of criminal-justice policy-making in the United States is a significant obstacle, requiring almost a super-majority in many ways to eliminate capital punishment.

III. WHAT THE EUROPEAN EXPERIENCE SAYS ABOUT THE PERSISTENCE DEBATE AND THE LIKELIHOOD OF ABOLITION

Having made sense of why the European model, as derived by Hammel, has not led to abolition (so far) in the United States, the next question asks how Hammel’s historical and cultural analysis fits within the broader debate concerning the persistence of the death penalty in the United States. As Hammel explains, two separate general approaches have framed this debate in the academic literature. One approach seeks to explain persistence in terms of some difference in culture between the United States and Europe and is often phrased in terms of American “exceptionalism.”108 The other approach, termed the “anti-exceptional” approach by Hammel, argues that cultural factors, while relevant, do not adequately explain persistence, and structural and institutional factors deserve more attention and consideration in explicating the retention of the death penalty in the United States.

A. The Debate

1. CULTURAL CONCEPTIONS

As highlighted by Hammel, cultural conceptions of capital punishment focus on the “exceptional” aspect of the culture of the United States as a basis for explaining the retention of capital punishment in America. James Q. Whitman, for instance, has argued that Americans are more severe and harsh than Europeans historically in the way that they punish criminal offenders.109 In particular, Whitman cites different cultural understandings of the concept of human dignity between Americans and Europeans.110

108. See generally supra note 5 and accompanying text. 109. WHITMAN, supra note 4, at 43–48. 110. Id. at 65. Whitman explains that the European conception of human dignity is a more robust one, and that Europeans judge the level of their civilization in terms of the degree to which the state safeguards individual dignity. Id. at 84–85. The Americans, on the other hand, seem to prize liberty and autonomy more than dignity


Similarly, Franklin Zimring has claimed that the unique culture of the American South, related directly to its history of racism and lynching, explains the use of the death penalty currently in the United States, including its concentration in “Confederate” states.111 For Zimring, then, the death penalty in America is just an extension of the tradition of lynching, reframed in a modern context.112

Joachim Savelsburg likewise pinpoints cultural differences between Europe and the United States, noting that criminal justice policies in the United States have become increasingly harsh in recent years, while European approaches have been more stable.113 In particular, Savelsberg suggests that the effects of America’s Puritan-Calvinistic heritage, with its interest in stiff punishment, constitute the cultural factor that explains the corresponding gap between the United States and Europe in the use of punishment.114

Finally, Michael Tonry has highlighted cultural differences that explain the difference in the administration of criminal justice between the United States and Europe.115 Tonry argues that the “paranoid style” in American politics, a Manichean moralism associated with fundamentalist religious views, the obsolescence of the American constitution, and the history of race relations in the United States all help to explain the gap in punishment.116

2. ANTI-EXCEPTIONAL CONCEPTIONS

Even if some or all of these cultural differences exist, such differences may not adequately explain the persistence of capital punishment. Recognizing a series of theories of American exceptionalism, Carol Steiker argues that such theories do not

and see the role of the state as being focused on guaranteeing such freedoms as opposed to protecting human dignity. See id. at 41–43. 111. ZIMRING, supra note 4, at 89–98. 112. Id. 113. Joachim J. Savelsberg, Kulturen Staatlichen Strafens: USA and Deutschland, in DIE VERMESSUNG KULTURELLER UNTERSCHIEDE: USA UND

DEUTSCHLAND IM VERGLEICH 189, 190 (Jürgen Gerghards, ed., 2000). 114. Savelsberg, supra note 113, at 200–04; see HAMMEL, supra note 4, at 192. 115. Michael Tonry, Explanations of American Punishment Policies: A National History, 11 PUNISHMENT & SOC’Y 377 (2009); see HAMMEL, supra note 4, at 192–93. 116. Tonry, supra note 115, at 379; see HAMMEL, supra note 4, at 193.


adequately explain the persistence of capital punishment, and they offer no surety that America’s death penalty will persist indefinitely.117

Likewise, David Garland, while recognizing that cultural differences may exist, argues that such cultural differences do not adequately account for retention of the death penalty in America or the timing of the European abolitions.118 Garland cites the accounts of Zimring and Whitman in particular as inadequate to explain the persistence of the death penalty, as well as the manner in which states have used it in the last thirty years.119

In his recent book, Peculiar Institution, Garland claims that the survival of capital punishment in America is the result of “developments that were shaped not by culture alone but by the distinctive history and social structure of American society—above all, its process of state formation, its political and legal institutions, and its group dynamics and cultural commitments.”120 Garland thus argues that American retention of the death penalty is not based on “Puritanism, or punitiveness, or violent vigilantism . . . [i]t points instead to one of America’s chief values and virtues—a radically local version of democracy.” 121

Finally, Garland emphasizes the unique feature of American capital punishment: its peculiarity in putting death “into discourse for political and cultural purposes.”122 Thus, in understanding the function and importance that the death penalty still serves in the United States, Garland suggests that the system of capital punishment as it currently

117. Steiker, supra note 4. Steiker's list, which she admits overlaps in some cases and in any event, is not persuasive to her, is as follows: (1) high homicide rates in the United States, (2) strong U.S. public opinion in favor of the death penalty, (3) the salience of crime as a political issue, (4) populism, in that American institutions are more responsive than European ones to the public will, (5) criminal justice populism, in the lay participation in the criminal justice system, (6) federalism, with each jurisdiction retaining autonomy over its use of the death penalty, (7) Southern exceptionalism, in terms of race, Protestantism, and a sub-culture of violence, and its resistance to the civil rights movement and the resulting connection to capital punishment, (8) European exceptionalism, (9) American cultural exceptionalism, in that America has a distinct sub-culture of violence (see Southern exceptionalism), and (10) the historical contingency thesis—that Furman abolished capital punishment but in a way that was not permanent. Id. 118. Capital Punishment and American Culture, supra note 4, at 347–49. 119. Id. at 351–55. Garland notes, for instance, that the modern use of the death penalty, a largely private event that resembles a medical procedure, is a far cry from the public spectacles of vigilante justice and lynching that were common in the American South during the nineteenth century. Id. at 352. 120. PECULIAR INSTITUTION, supra note 4, at 308. 121. Id. at 309. 122. Id. at 312.


exists is “primarily a communication system,” one whose importance cannot be disregarded in the abolition calculus.123

B. Insights from the European Experience

The European model for abolition, as described above, consists of a group of political elites deciding, in their own reasoned, dispassionate judgment, that capital punishment is no longer in the best interests of the country. Once this threshold has been crossed, the political elites use their power to abolish the death penalty, irrespective of, and often contrary to, public opinion.

In light of the persistent debate, then, what insights does Hammel’s narrative provide in understanding if, how, and when American abolition might occur? The lesson from the European model that Hammel derives and applies is that the social groups with the power and influence to change policy are the ones who determine the likelihood of change.

To the degree that policy change in the United States occurs on a local level (through the voting decisions of local constituents), the cultural differences highlighted above seem to provide an impediment to abolition. Equally important, though, is the manner in which the institutions defer to, or at least allow, such local constituencies to influence and control criminal justice policy.

Currently, it is most likely the combination of local interests that support the death penalty (particularly in the South), and the political institutions that allow local interests to wield power and influence, that best explains the persistence of capital punishment in the United States.124 This is particularly true, as Garland explains, because of the largely symbolic nature of capital punishment and the unusual manner in which it is currently used in the United States.125

C. A Path to Abolition

The question then becomes whether other groups can exert power, as in Europe, to nullify, or at least marginalize, the influence and

123. Id. 124. I have made a similar assertion elsewhere. See Berry, supra note 4, at 483 (describing this concept in terms of belief in procedure). Thus, where local constituencies believe in the fairness of capital punishment, it will continue to persist; where local constituencies reject the “justice” of capital punishment, its usage will wane. Id. at 493–94. Even so, the decentralized nature of such interest will prevent de jure abolition. Id. 125. See PECULIAR INSTITUTION, supra note 4, at 312–13.


power of public opinion. If Hammel is correct in his claim that the Marshall hypothesis will not work—that educating the public about the death penalty will not lead to abolition—then the best path to abolition in the United States must be a counter-majoritarian one.

The United States Supreme Court provides the best opportunity to abolish capital punishment in the United States. Given the Court’s recent history, such an outcome is not unfathomable. Since Atkins v. Virginia126 in 2002, the Court has moved incrementally to limit the use of the death penalty in the United States. Indeed, the evolving standards of decency doctrine provide a paradigm by which the Court could insert its own view, acting in the same way as European elites have in Germany, Great Britain, and France, to do what it deems to be in the best interests of the United States.

Such an outcome is not so far-fetched, particularly given the five-justice majorities that decided Atkins, Roper v. Simmons,127 and Kennedy v. Louisiana.128 Indeed, three justices who voted in the majority in Gregg v. Georgia129—the case that reinstated capital punishment in the 1970s—have repudiated their prior positions on the ground that there is no way to administer the death penalty fairly and justly.

As to the objective question that the Court asks concerning the evolving standard and the use of the death penalty, the use of the death penalty in America is becoming increasingly rare. It is not inconsistent to say that the death penalty’s lack of use, coupled with recent repeals in New Jersey, New Mexico, and similar discussions in other legislatures (such as Illinois), provides some objective evidence that would allow the Court to inject its own subjective opinion pursuant to the evolving standards of decency doctrine. And the subjective evidence that the death penalty is fundamentally flawed to the point that it is a cruel and unusual punishment is overwhelming.

Finally, as the modern problems with the administration of the death penalty continue to multiply—the possibility of innocent individuals already being executed, the number of innocent individuals found on death row, the availability of a reasonable alternative in life without parole, the continued rarity and arbitrariness by which the death penalty is applied, the continued evidence of race playing a significant role in the administration of the death penalty, the increasing cost of the death penalty, the influence of geography on the use of the death penalty, the overwhelming amount of error in capital cases, the

126. 536 U.S. 304 (2002). 127. 543 U.S. 551 (2005). 128. 554 U.S. 407 (2008). 129. 428 U.S. 153 (1976).


absence of quality representation for offenders in many cases, the effect of socio-economic status on the outcome in death cases, the inability of defendants to have proper forensic testing done in many cases, the wide disparity in jury verdicts, the refusal of state courts to adequately review jury verdicts in many cases, the presence of “experts” who manufacture evidence and opine on future dangerousness, the use of victim impact evidence to sway the decisions of some juries, the failure of defendants to present mitigating evidence, the “stacking the deck” that occurs with “death-qualified” juries—the notion that this “broken” capital-punishment system can be fixed becomes increasingly remote. Indeed, these reasons provide the justification, or perhaps even the obligation, for the United States Supreme Court to follow the European path to counter-majoritarian abolition.

The European Prescription for Ending the Death Penalty

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Transcript of The European Prescription for Ending the Death Penalty