America the Pariah

In 1977, when the United States Supreme Court allowed the states to resume capital punishment—which it had previously repudiated as unconstitutional—it required that they follow exacting procedures. Since then, the Court has adopted a largely hands-off approach to the administration of the death penalty. Far from upholding rigorous standards, it has rejected challenges based on well-founded claims of racial and class bias, inadequate legal representation, lack of consular notification, and defendants’ mental incapacity.

While America’s courts allowed executions to proliferate, most of the world (108 countries in all) moved in the opposite direction. Abolition of the death penalty is a cornerstone of European human rights policy, and the European Union now regularly criticizes US death penalty practices in diplomatic demarches. In many European capitals, outrage over American capital punishment has triggered angry street demonstrations, with one former US ambassador reporting that his embassy had received an anti-death penalty petition signed by 500,000 local citizens.

As America’s former chief human rights official, I can testify that these are not minor diplomatic irritants. Important meetings between America and its allies are increasingly consumed with answering official protests against the death penalty. Indeed, the practice undermines America’s claim to moral leadership in international human rights, and probably contributed to the recent stunning loss of its seat on the UN Human Rights Commission.

More disturbingly, America’s devotion to the death penalty provides diplomatic ammunition to countries with far worse human rights records. China, for example, regularly deflects international criticism of its own appalling practices by pointing to America’s death penalty. When it was recently misreported that only Kyrgyzstan and the US execute mentally retarded persons, Kyrgyzstan’s ambassador to Washington rushed to set the record straight. Notwithstanding Kyrgyz President Askar Akayev' s deeply flawed human rights record, the ambassador noted that Kyrgyzstan has in fact observed a moratorium on the death penalty since 1999.

A pending US Supreme Court case, McCarver v. North Carolina , will test America’s international isolation on the issue. For the first time in twelve years, the Court will consider whether execution of the mentally retarded violates the US Constitution’s prohibition of “cruel and unusual” punishment, which the Court interprets according to the “evolving standards of decency that mark the progress of a maturing society.” The Court declined to adopt a categorical rule barring such executions when it last heard the issue, but it acknowledged that a “national consensus against execution of the mentally retarded may someday emerge.”

There is strong evidence that such a consensus has now emerged. In 1989, only two states and the federal government prohibited executing people with mental retardation. Today, 15 states and the federal government proscribe the practice by statute, and two others have passed laws that are awaiting gubernatorial signature. Along with the 12 states (and Washington D.C.) that bar capital punishment altogether, a clear majority of American jurisdictions now ban the practice.

In the McCarver case, nine distinguished former American diplomats, with combined service under Republican and Democratic presidents totaling nearly 200 years, decided to speak out. They told the Court that executions of mentally retarded inmates creates diplomatic friction, pits America against its allies, tarnishes America's image as a human rights leader, and harms broader foreign policy interests.

President George W. Bush initially responded to the diplomats’ brief by saying we “should never execute anybody who is mentally retarded,” although, as governor of Texas, he had opposed legislation to ban the practice and rejected clemency petitions for retarded convicts. He subsequently insisted that “our court system protects people who don't understand the nature of the crime they've committed nor the punishment they are about to receive."

These judicial protections are designed to protect the mentally insane , not the mentally retarded. In many states, it is still permissible to sentence to death a person who meets the legal criteria for mental retardation—usually defined as an IQ under 70, low adaptive skills, and early onset of the condition—if, despite a defendant’s developmental disabilities, personal culpability is found. Of the 35 mentally retarded people who have been executed nationwide since 1976, at least six were put to death in Texas, one while then-Governor Bush was campaigning for the Presidency.

President Bush cannot sit on the fence. If he sincerely believes that the mentally retarded should never be executed, he should instruct his Justice Department to file a Supreme Court brief opposing McCarver’s execution, and urge state governors to ban the practice. For Ernest Paul McCarver, an adult with the mind of a ten-year-old, whether and how President Bush reconciles his contradictory statements may well be a matter of life or death.