Go Slow on Crimea
Why Ukraine Should Not Rush to Retake the Peninsula
On January 22, 2009, his second full day in office, U.S. President Barack Obama signed an executive order prohibiting the use of torture by the U.S. government and revoking legal interpretations from President George W. Bush’s administration that denied protections under international law to certain overseas detainees. Few Americans outside of national security policy circles took note of the executive order. But it sent a clear message to U.S. partners and allies that Obama was breaking with his predecessor and recommitting the United States to the shared values of the democratic world.
As a deputy assistant secretary of state in the early years of the Obama administration, I heard frequently from U.S. allies about the importance of Obama’s ban on torture. My counterparts sometimes also raised concerns about U.S. surveillance, detention, and use of drones. But those enduring concerns didn’t change the perception that Obama believed in universal values—and believed they should apply universally, including to the United States. The torture ban became a kind of metonym for U.S. recommitment to these shared values, and because it addressed a shortcoming that had been criticized by allies and partners, it signaled U.S. commitment to repairing those relationships, too.
If Democratic presidential candidate Joe Biden defeats President Donald Trump in November, democratic U.S. partners and allies will welcome rapprochement but will look to the United States to initiate it. Biden’s campaign platform calls for the elimination of the death penalty. If elected, he will have an opportunity in his first week in office to take meaningful action toward ending the practice of capital punishment, just as Obama did to end the practice of torture. U.S. allies and partners—not to mention U.S. adversaries—would perceive such a move as evidence that the United States is recommitting itself to the universal values on which it purports to base its strongest foreign relationships.
With the exception of Belarus, which continues to apply the death penalty, no European country has executed a prisoner since Ukraine did so in 1997, and all members of the Council of Europe have abolished the death penalty. (Russia has a moratorium by ruling of its Constitutional Court.) The Charter of Fundamental Rights of the European Union, adopted by the European Parliament in 2000, forbids the use of the death penalty in member states, and the EU has long advocated for global abolition. Today, more than 70 percent of countries have banned capital punishment or imposed a de facto moratorium.
Alone in the Americas and among NATO members, the United States continues to execute tens of prisoners each year and to send dozens more to death row. Capital punishment persists under three kinds of U.S. law: federal criminal law, the Uniform Code of Military Justice (UCMJ), and the laws of 28 states. Most executions in the United States are conducted under state law, and the vast majority of those take place in a handful of southern states. Last year, a total of 22 people were executed by seven U.S. states. In July of this year, the federal government carried out its first executions in 17 years.
The history of the death penalty in the United States can’t be disentangled from the country’s social history of race.
The history of the death penalty in the United States can’t be disentangled from the country’s social history of race. Lynching—the extrajudicial and racist application of a punishment that was already applied with enormous racial bias under the law—was a widely used tactic of terror that both reflected and reinforced a race-based caste system well into the second half of the twentieth century. Today, racist application of capital punishment continues: Black men receive a disproportionate number of death sentences (42 percent of death row inmates are Black, more than three times the share of the overall population that is Black). And according to a recent study by Scott Phillips and Justin Marceau of the University of Denver, those convicted of murdering white victims are 17 times more likely to be executed than those convicted of murdering Black victims. In a year during which the world has watched as Black Lives Matter—a movement centered on how the United States treats Black bodies—has brought millions of Americans into the streets, the state-sanctioned killing of U.S. citizens both distances the United States from its closest friends and distances the country from its founding ideals. The practice makes the United States less like its democratic allies—and a lesser version of itself.
Capital punishment also impedes the work of diplomacy and harms U.S. interests abroad. When I was U.S. ambassador to the Organization for Security and Cooperation in Europe, every time the United States executed someone, U.S. partners, including the EU, delivered a joint statement criticizing the practice, and I was forced to use time that should have been spent on Russia’s nefarious actions in Ukraine reading a defense of the death penalty to 56 other ambassadors.
Votes against resolutions at the UN and elsewhere that condemn the death penalty cost the United States political capital. They also align the United States with Saudi Arabia, China, Iran, and other countries with appalling records on human rights. By ceding the moral high ground, the United States diminishes its own ability to influence and persuade allies and adversaries alike. The challenge the United States faces in confronting China’s brutal repression at home and neo-mercantilism abroad has a moral dimension, and the United States cedes an element of its advantage by defying the other members of the community of values it has historically sought to lead. In 2001, eight former U.S. ambassadors summarized the diplomatic costs of executing prisoners with disabilities in an amicus brief to the Supreme Court:
Persisting in this aberrant practice will further the United States’ diplomatic isolation and inevitably harm other United States foreign policy interests. The degree to which this issue has strained our diplomatic relations can be measured by the extent to which important bilateral meetings with our closest allies are now consumed with answering diplomatic demarches challenging these practices. The persistence of this practice has caused our allies and adversaries alike to challenge our claim of moral leadership in international human rights.
The former U.S. ambassadors were referring only to the execution of mentally disabled people, but the concerns they raised apply to any case of capital punishment. “For a country that aspires to be a world leader on human rights,” Harold Hongju Koh and Thomas R. Pickering wrote two years later in the Foreign Service Journal, “the death penalty has become our Achilles’ heel.”
While a formal nationwide ban on the death penalty would likely take years to achieve, there are some immediate steps that a Biden administration could take toward discontinuing the practice. The president could direct the Justice Department to cease pursuing capital sentences for federal capital crimes and impose a moratorium on additional federal-level death sentences. The attorney general could also, as a matter of standard practice, file amicus briefs supporting requests for any stays of execution that reach the Supreme Court. Biden could commute the sentences of the 59 people currently on federal death row to life in prison (or some other sentence). And as commander in chief, he could use his rule-making authority under the UCMJ to remove the death penalty as a punishment in military trials, commute the sentences of the four people on military death row, and begin the process of working with Congress to revise the UCMJ. He could also announce his intent to work with Congress to move toward a national abolition of the death penalty and invite governors to the White House to discuss steps that they and their state legislatures could take toward the same objective, including enacting state-level moratoriums.
Should Biden take any of these steps, he should seize the opportunity to do so publicly. The decision to discontinue capital punishment is a moral one that shouldn’t be made quietly behind closed doors or under the cover of legalese but rather announced, explained in speeches, and used as an opportunity to make a public argument about good and decent governance.
A public push toward abolition would be a powerful statement to U.S. partners and allies, all the more so because capital punishment remains a contentious domestic political issue. According to recent Gallup polls, 60 percent of Americans prefer life in prison to the death penalty as a punishment for murder. Nevertheless, 54 percent of them still find capital punishment morally acceptable (although the percentage of Americans who say it is morally wrong has risen from just 22 percent in 2006 to 40 percent today). Presidential action toward ending capital punishment is sure to draw criticism, but that, too, would be an opportunity: it would give Biden a chance to argue to his fellow Americans—and in front of the world—for the elimination of capital punishment as part of U.S. progress toward a “more perfect union.”
The case for ending capital punishment—on practical, economic, and moral grounds—is overwhelming. There is no need to add a foreign policy case for abolition. But just as Obama did with his executive order banning torture, Biden, if elected, will have an opportunity to act swiftly and boldly on capital punishment in order to reassure U.S. friends and allies and symbolically recommit the United States to the values it shares with the rest of the democratic world.