By contrast, democracy is a European value — or, at the very least, it is accepted as such by the great majority of Europeans. It even has a walk-on part in the EU statement on capital punishment. But the imposition of abolitionism on Europeans by a combination, hopefully unique, of stealth, moral bullying, and legalist trickery is a manifest subversion of democracy. It demonstrates that when there is a conflict between democracy and strong elite preferences, the EU comes down on the side of the elites.
The reason that capital punishment survives in America but has perished in Europe is not that America is less civilized than Europe, but that it is more democratic than Europe. There is quite a lot of evidence for this on other political topics. Maybe, therefore, the State Department should instruct U.S. ambassadors in Europe to mount an annual protest about the erosion of democracy throughout the EU. It can’t do any harm.
A third possible topic for the debate is the legal agreement among EU counties not to extradite to the U.S. any criminals, whatever their crimes, who might face the death penalty here. This is dressed up as a matter of principle and compassion again, but it is plainly an attempt to dictate law and penal policy to the sovereign United States.
Instead of railing indignantly against it, however, maybe we should take the EU’s arguument at face value and propose an extension of its underlying principle. Quite simply, that principle is that the European Union has a moral obligation rooted in human rights to extend sanctuary to anyone facing the death penalty in another jurisdiction. As it happens most such people happen to be in America. It is also a matter of accident that the principle has so far been invoked by European governments in extradition cases where the convicted person has been seeking to avoid deportation to trial and/or execution. But the principle itself is capable of wider and more generous application. After all, the distinction between not exporting convicted murderers from Europe to America and importing convicted murderers from America to Europe is essentially a navigational one. The U.S. might therefore propose an imaginative extension of the sanctuary principle (making due allowance, of course, for the federalist caveat that individual states would have to consent to this new legal provision for it to be enforced in practice). That qualification aside, the U.S. would propose formally to the EU that, whenever a criminal was found guilty of a capital offense in an American court, he would be allowed to choose between immediate execution and deportation to the European country most to his taste in living.
Like execution itself, this would be a once-for-all decision. The reprieved murderer would lose his U.S. citizenship and any right to return to America. He would become a citizen of his new country — initially, perhaps, a prisoner within it too — but given “recognized minimum standards” and “the goal of social rehabilitation,” we can reasonably assume that he would be walking the streets before long.
On present trends, not many murderers and rapists would be given this chance of a new life in Europe — probably fewer than 1,000 annually. It is possible, however, that when this new legal provision became widely more known, the number of both capital cases and guilty pleas would increase substantially. This change would also, hopefully, introduce a new and cooperative element into plea-bargaining and clear up the heavy backlog of death-row cases on appeal. Complaints of police coercion of confessions would also likely diminish in number.