Peter Huck: Cracks in US support for death penalty

Back when George W. Bush was governor of Texas he had a reputation as capital punishment's friend, presiding over a record 152 executions.

In perhaps the most notorious case, the execution of Karla Faye Tucker in 1998, Bush mocked her pleas for clemency: "Please, don't kill me."

So it came as a surprise in February when Bush issued an executive order, declaring that state courts must give 51 Mexican nationals on death row new trials or new sentencing hearings.

Even more extraordinary, for a President whose disdain for international law is well known, Bush was responding to a ruling by the International Court of Justice in The Hague.

The court found that the US must "review and reconsider" the 51 cases, because the defendants were not informed of their rights under the Vienna Convention of Consular Relations, to which the US is a signatory.

Under that agreement, which the US ratified in 1969, foreigners charged with crimes in the US must be told they have the right to see their consul. This reciprocal agreement protects Americans in trouble overseas.

But the convention has been widely ignored in the US. The World Court's ruling came after Mexico took the US to The Hague, alleging its nationals were denied their rights. Bush subsequently acknowledged the US had a duty "to discharge its international obligations".

Last month the US Supreme Court dismissed a high-profile appeal, Medellin v Dretke, which concerns one of the 51 Mexicans.

The court ruled that the case of Jose Medellin, who is on death row in Texas and whose plight has attracted international attention, must go back to the state.

But Bush's apparent softening towards international law had a surprise twist. On March 7 US Secretary of State Condoleezza Rice abruptly informed the United Nations that the US "hereby withdraws" from the Vienna Convention's provision on consular relations.

A State Department spokeswoman said the World Court had interpreted the Vienna Convention "in ways that we had not anticipated that involved state criminal prosecutions and the death penalty, effectively asking the court to supervise our domestic criminal system".

In short, butt out. The World Court may have forced the President's hand, but there would be no repeat performance. Which may be too bad for Americans who find themselves on the wrong side of the law elsewhere.

To domestic critics of the death penalty who had cited the Vienna Convention in the past, it looked as if the Bush Administration was prepared to do whatever it took to shore up capital punishment, popular with one of the President's core constituencies, the Religious Right.

Nonetheless, there are signs that, despite the Administration's hard line, cracks are appearing in US support for the death penalty.

On the surface this is hard to believe. Two weeks ago serial murderer Michael Bruce Ross was put to death by lethal injection in Connecticut - the first execution in New England in almost half a century. The following week child murderer Alejandro Avila was sentenced to death in California.

It would appear that the death penalty - embraced by 37 states - is alive and well in America, where 3455 people are on death row.

The present system dates from 1972, when the Supreme Court found existing state death penalty statutes "cruel and unusual" and effectively unconstitutional.

Georgia, Texas and Florida introduced new laws in 1976, ushering in a new era of capital punishment.

But statistics suggest a national change is occurring. According to the Death Penalty Information Centre, US support for capital punishment is around 65 per cent, down from 80 per cent a decade ago.

"Death sentences are down by 50 per cent since 2000," says Richard Dieter, the centre's executive director. "Executions are down by 40 per cent."

In 1998 300 people were condemned to die. By 2003 this had shrunk to 143. As well, says Dieter, public opinion is evenly split on whether to sentence murderers to death or life in prison without parole.

At the same time the US debate about capital punishment is evolving beyond the traditional liberal versus conservative standoff, says Dieter, to "a much broader concern about the death penalty", as the focus switches to "innocence cases" which highlight flaws in the system.

"Most criticism of the death penalty is on how it's applied," says Dieter. "That it's not always fair or uniform. That it's arbitrary."

The most dramatic reappraisal took place in Illinois. After admitting the state's capital punishment system was so "fraught with error" that it posed "the ultimate nightmare, the state's taking of innocent life", in 2003 the governor commuted the sentences of 156 people on death row.

This bombshell prompted other states to recalibrate their own systems and embrace new evidence, such as DNA testing.

Finally, two pivotal US Supreme Court rulings - outlawing capital punishment for the mentally retarded (2002) and children (2004) - have reined in the death penalty.

But none of this means it is about to be dropped. Instead, developments have more narrowly defined when it may be used.

Dieter says Americans are "not at the point of debating the larger issue of whether we should have the death penalty".

For most people it is not a human rights issue - yet. States will continue to scrutinise the issue, but he doesn't see the Supreme Court tackling the death penalty per se.

Even so, opponents of capital punishment are optimistic the US may eventually abandon the death penalty in line with other democracies.

"The US is beginning to pay attention to the world community and international standards," says Lance Lindsey, executive director of Death Penalty Focus, an anti-capital punishment advocacy group.

He believes this change is being wrought by globalisation, and says the Supreme Court considered world opinion in its 2002 and 2004 rulings.

He thinks it "odd" that the Vienna Convention should work for the 51 people covered by the recent World Court ruling, "but not work for future folks - I think the US courts will have a lot to say about that".

At the same time Bush's support on this issue from the religious right may not be solid. Whereas Protestant evangelicals embrace capital punishment, the Catholic Church - a big US constituency - opposes it, linking the death penalty with abortion in the right to life movement.

Reformers face another daunting obstacle - the nature of the US judiciary itself.

"Our system is highly politicised from the ground up," says Lindsey. "Our prosecutors are elected. Our judges are elected. And they campaign from the grassroots."

He says there is "an awful synergy" between judicial attitudes and the way television dramatises murder, repeatedly showing the victim's face, or the anguish of loved ones. It is a climate where candidates pander to popular fears and the death penalty becomes "a political weapon".

It is a weapon expertly wielded by the present Administration, whose leader exploited support for the death penalty in Texas.

It remains to be seen if such sentiments will remain a political advantage, as Americans reappraise their attitudes towards the ultimate punishment.

Karla Faye Tucker's story

* During an attempt to steal a motorbike in 1983 she took part in the brutal axe killing of the bike's owner and his girlfriend.

* She became a born-again Christian while awaiting execution and her case was the focus of worldwide protests against the death penalty.

* Texas Governor and now President George W. Bush rejected her plea for clemency and signed the death warrant.

* On February 3, 1998, she became the first woman to be executed in Texas since the Civil War.

* Her last words were apologies to the families of those she had killed.