4-17-08, 10:48 am

Most of our readers probably know that the death penalty has been abolished in many parts of the world. The Council for Europe, for example, campaigns against it and has even established October 10 as European Day Against the Death Penalty to challenge those conservatives who wish to reestablish it. Even countries with brutal and repressive criminal justice systems like Turkey have had to abolish it in order to reap economic benefits from non-death penalty countries. Although non-death penalty countries don't employ economic sanctions against the U.S., a number of them refuse to extradite criminals to the U.S. when the death penalty is a possible outcome.

Those who favor outlawing the death penalty point to the errors in its enforcement, especially to the large number of death row inmates released from American prisons in recent decades after being found innocent. Many critics also cite the racist manner in which it is applied as a clear institutional flaw of the system. Even many conservatives accept the view that the death penalty is not in any way a greater deterrent to major crimes than life imprisonment.

Large numbers of people across the political spectrum have come to accept the view that killing one person for killing another, regardless of how horrible the original killing was, brings no justice to the original victim and only extends the violence or, as Mohandas K. Gandhi said of violent retaliation, 'an eye for an eye will make the world blind.'

Many countries outside of the 'Western World' share a disgust for the death penalty. South Africa's ANC-led government has outright banned its use. Venezuela, the Philippines, Mozambique, and Angola among dozens of other countries in and out of the 'Western World,' also prohibit it. Some countries have a 'de facto' ban, while others like India uphold it constitutionally, but are loathe to use it. India has killed two people (in a country of 1 billion) since 1995.

Unfortunately, the self-proclaimed leader of the 'Western World,' the United States of America, refuses to get with the program. On April 16 the right-wing dominated Supreme Court voted 7-2 on a decision stating that Kentucky's policy of lethal injection did not constitute 'cruel and unusual punishment.'

A little history that most Americans either don't know or have forgotten will be of use here. In 1972, the Supreme Court appeared to have abolished the death penalty when it ruled by a narrow 5-4 decision in Furman v. Georgia that the laws governing it violated both the 'cruel and unusual punishment' provision of the 8th amendment and the due process provisions of the 14th amendment. This followed after the development of a major movement against the death penalty resulting in a virtual moratorium on executions, which had numbered on the average of 130 a year in the late 1960s and early 1970s. After the Furman decision, over 600 death row inmates had their sentences commuted and the death penalty was null and void for the next four years.

The political backlash of the Nixon years took their toll on both the Supreme Court and the 'law and order' political establishment. States rewrote death penalty laws to try to get around the due process and 'cruel and unusual punishment' aspects of the Furman Case. In a number of cases in 1976, a more conservative yet divided Supreme Court upheld some new death penalty state laws (most importantly Gregg v. Georgia) and rejected others, affirming the right of individual states to re-institute with judicial review the death penalty on a state by state basis. In 1977, executions began again, and in 2000, the number of executions has reached 85. All of these executions have taken place in 14 states and former Governor George W. Bush in Texas leading the way.

Since then, the anti-death penalty movement has grown substantially. Some states have declared new death penalty moratoriums. My own state of New Jersey, I am proud to say, joined other states that never re-instituted the death penalty and most of the developed world by abolishing the death penalty in December 2007.

This week's Supreme Court decision tells us more about the present make-up of the court than it does about the changing attitudes among the American people on the death penalty. The decision in the Kentucky case is clearly a setback. One bright spot, however, was that 88-year old Justice John Paul Stevens, who voted in 1976 for the right of states to 'reestablish' the death penalty, in his support of the majority decision in the Kentucky case, suggested that the premises on which the original death penalty was upheld may no longer apply. He contended, the three 'societal' reasons for the death penalty, 'incapacitation, deterrence, and retribution' may no longer be valid. Incapacitation can be accomplished with life imprisonment. On the second issue, the best sociological evidence shows that capital punishment is not an effective deterrent for capital crimes. Third, retribution provides no moral justice in a capital case.

It is likely that some states will be ending their moratoriums and preparing for new executions. John McCain is for the death penalty 100 percent, and his presidency will install pro-death penalty activist judges in the federal judiciary. The best way to end the death penalty in the U.S. is to defeat McCain and his party and change the balance on the court. That will be necessary to end a barbaric, anachronistic institution which brings the United States into disrepute throughout much of the world.

--Norman Markowitz is a contributing editor of Political Affairs.