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The Bitter Fruit of American Justice

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The Bitter Fruit of American Justice A STUDY OF THE INCREASING INTERNATIONAL OPPOSITION TO AND GROWING DOMESTIC DISAFFECTION FROM THE DEATH PENALTY IN AMERICA The Bitter Fruit of American Justice examines two increasingly important factors in the debate over state execution, the conjunction of which may well signal an end to the death penalty in the United States. The first is external to the country: mounting international resistance to state execution is raising the political stakes for the United States. Much of the democratic world has abolished state execution, regarding it as a grave human rights violation. Drawing on new understandings of state sovereignty, these nations are using extradition policies and existing treaty obligations to pressure the United States to end capital punishment. The second is internal to the country: the discovery of large numbers of innocent people on America's death rows has shaken public opinion and political resolve on this issue. The moral potency and rhetorical effectiveness of the innocence argument is radically altering the terms of the debate, undermining traditional justifications for capital punishment and weakening the attitudes of even the most adamant retentionists. Alan W. Clarke and Laurelyn Whitt contend that while there have (Continued on b0ck llap) The Bitter Fruit of American Justice The international and Bitter Fruit domestic resistance of American to the death penalty Justice alan w. clarke & laurelyn whitt northeastern university press Boston Published by university press of new england Hanover and London northeastern university press Published by University Press of New England, One Court Street, Lebanon, NH 03766 www.upne.com © 2007 by Alan W. Clarke and Laurelyn Whitt Printed in the United States of America 54321 All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including storage and retrieval systems, without permission in writing from the publisher, except by a reviewer, who may quote brief passages in a review. Members of educational institutions and organizations wishing to photocopy any of the work for classroom use, or authors and publishers who would like to obtain permission for any of the material in the work, should contact Permissions, University Press of New England, One Court Street, Lebanon, NH 03766. STRANGE FRUIT By Lewis Allan Copyright © 1939 (Renewed) by Music Sales Corporation (ASCAP) International Copyright Secured. All Rights Reserved. Reprinted by Permission. STRANGE FRUIT Written by Lewis Allan Used by permission of Edward B. Marks Music Company Library of Congress Cataloging-in-Publication Data Clarke, A. W., (Alan W.) The bitter fruit of American justice : international and domestic resistance to the death penalty / by Alan W. Clarke & Laurelyn Whitt. p. cm. Simultaneously published in the USA and Canada. Includes bibliographical references and index. isbn-13: 978–1–55553–682–4 (cloth : alk. paper) isbn-10: 1–55553–682–4 (cloth : alk. paper) 1. Capital punishment—United States. 2. Extradition—United States. 3. Human rights—United States. 4. Justice, Administration of—United States. I. Whitt, Laurelyn. II. Title. kf9227.c2c53 2007 345.73'0773—dc22 2007027451 We dedicate this book to our parents, buddy and jo clarke & jack and nettie whitt, whose love remains their greatest gift. Contents Preface ix Acknowledgments xi 1 Introduction 1 part one International Pressure to Relinquish State Execution 2 Human Rights and the Erosion of Absolute Sovereignty 11 3 Extradition: Holding the United States to a Higher Human Rights Standard 31 4 Honoring Treaty Commitments: The Vienna Convention on Consular Relations 50 part two Domestic Resistance to the Death Penalty 5 Death Penalty Myths: Science Confronts Conventional Wisdom 75 6 Attitudes toward Capital Punishment: Do Facts Matter? 97 7 Executing the Innocent 113 8 The Moral Potency of the Innocence Argument 134 9 The Imperfectability of the System 153 10 Conclusion 173 Notes 179 Index 233 Preface That international and domestic pressure to halt state execution might inter- sect and increase the likelihood of bringing the American death penalty to an end was not an idea that came easily or naturally to us. Back in the mid 1980s, Bill Geimer, then professor of law at Washington and Lee University, repeat- edly said that the United States would not abolish the death penalty until it was embarrassed into doing so by the rest of the world. At the time, that seemed an impossible prediction, one to be rejected out of hand given the limited role of international law in the debate over capital punishment to that point. Bill, however, proved prescient, and international views are increasingly significant in the death penalty debate. Thirty years ago the innocence issue seemed similarly unlikely to play a major role in the discussion. Who knew then that the system would prove to be so disastrously flawed? Back then, neither of us would have guessed that either of these issues would have the impact that they now have. We were wrong. In- ternational resistance to state execution as a human rights violation has com- bined with domestic concern over the execution of innocent people to put the American system of capital punishment under greater pressure than ever. There have long been compelling reasons to oppose the death penalty: the persistence of race, class, and ethnic bias; its profound arbitrariness; its failure to deter more e=ectively than its alternatives; its exceptional costs. The power of such critiques is itself significantly enhanced by the convergence of the two forces—international pressure and the innocence argument—on which this book focuses. The fact that a significant number of those whose lives the state ends are not only selected on arbitrary and discriminatory grounds, but also are innocent of the crime for which they are being punished only intensifies the gravity of the abuse of state power that constitutes the American death penalty. We would not have come to our understanding of the issues discussed herein without the support and critique over many years of more people than could possibly be mentioned. We are particularly grateful to those who read and responded to the early rough drafts. These include Hugo Adam Bedau, Richard Lempert, David Lyons, Michael Radelet, Margaret Vandiver, and Mark Warren, all of whom o=ered invaluable commentary and suggestions. If er- rors remain in the text, however, they are decidedly, if regrettably, our own. We are also grateful to Eric Lambert and Oko Elechi, who allowed us to use parts of several articles on which they were co-authors. Our student assistant, Travis Shaw, spent many hours checking sources and preparing the endnotes, and we thank him for his enthusiasm and commitment. To our colleague and program director, Scott Abbott, who continues to support us in myriad ways, but especially through his friendship, we extend our deep appreciation. And fi- nally, we acknowledge the fine faculty of the philosophy department of the College of William and Mary, where we were both first introduced to an issue that neither of us has been able to leave behind. x preface Acknowledgments Part of chapter 8 is reprinted (with substantially updated research and rewrit- ing) from Criminal Law Bulletin, Volume 38, by Laurie Anne Whitt, Alan W. Clarke, and Eric Lambert, with permission of West, a Thompson business, Copyright 2002. For further information about this publication, please visit www.west.thompson.com/store, or call 800–328–9352. Other parts of this book have appeared, with substantially updated research and rewriting, in the articles listed below, with permission from each publica- tion. In addition, several of these articles list Eric Lambert and Oko Elechi as co-authors. Eric and Oko have graciously given permission to use these works, and their contributions are gratefully acknowledged. Alan Clarke, “The Death Penalty in International Law,” 60(2) Guild Practitioner 86 (Spring 2003). Alan W. Clarke, Eric Lambert, and Laurie Anne Whitt, “Debating the Death Penalty: The Impact of Innocence,” 59(2) Guild Practitioner 116 (Spring 2002). Alan W. Clarke, Eric Lambert, and Laurie Anne Whitt, “Executing the Innocent: The Next Step in the Marshall Hypothesis,” 26 New York University Review of Law and Social Change 309 (2000–2001). Alan W. Clarke, Laurie Anne Whitt, Eric Lambert, and Oko Elechi, “Does the Rest of the World Matter? Sovereignty, International Human Rights Law and the American Death Penalty,” 30 Queen’s Law Journal 261 (2004). Alan W. Clarke, “Terrorism, Extradition and the Death Penalty,” 29 William Mitchell Law Review 783 (2003). Laurie Anne Whitt, “Sovereignty and Human Rights,” 60(3) Guild Practitioner 90 (Spring 2003). The Bitter Fruit of American Justice 1 : Introduction Southern trees bear strange fruit Blood on the leaves Blood on the root Black bodies swinging in the southern breeze Strange fruit hanging from the poplar trees 1 —“Strange Fruit,” Billie Holiday “Strange Fruit” was a protest of lynching in the American South, written in the hopes of bringing it to an end. Yet American support for a society’s right to kill its own citizens has continued largely unabated for over half a century. Despite empirical studies repeatedly demonstrating that execution by the state is dis- criminatory and arbitrary, that it fails to deter more e=ectively than other pun- ishments, and that it is vastly more expensive than alternative punishments, Americans have remained strangely unmoved by national and international calls for its abolition. This, however, may be changing; a consensus that has held for some thirty years is being undermined by two recent developments. The first is internal to the country. The discovery of large numbers of inno- cent people on America’s death rows has plainly shaken public opinion and political resolve on this issue. There is now a profound and growing national unease with capital punishment as awareness settles in that the American jus- tice system actually executes the innocent.
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