While the death penalty is a part of many criminal justice systems across the world, it has been abolished in almost all European countries. Andrew Hammel argues that reactions to the recent trial of Anders Behring Breivik in Norway illustrate how far removed capital punishment is from the political agenda in Europe. There was little appetite within Norway and the rest of Europe for bringing back the death penalty for Breivik and the abolition of capital punishment is effectively guaranteed by international agreements such as the European Convention on Human Rights. This consensus, built over a period of decades, means there is little prospect of European countries reintroducing the death penalty.
A Norwegian judge recently sentenced Anders Behring Breivik to the maximum penalty under Norwegian law, 21 years in prison, or approximately 3 months for each of the 77 murders he committed in his July 2011 massacre. The judge’s verdict included a finding of potential future threat to society, which will permit authorities to keep him in prison even after the expiration of his formal sentence if he is dangerous at that time. Yet, although it seems unlikely now, it is not impossible that Breivik could be released from prison even before the 21-year term has expired. Norwegian mass murderer Arnfinn Nesset, convicted in 1983 of poisoning 22 victims to death in a nursing home, was released after serving only 12 years of his 21-year-sentence, and now lives quietly under an assumed name.
Foreign observers were surprised at the comparative lightness of the sentence. A Washington Post columnist chastised Norway for not bringing back capital punishment for Breivik. For those who believe in capital punishment, Breivik would seem to be the perfect candidate. His was a calculated political massacre, planned by a legally sane person. Yet reactions to the Breivik verdict in Norway were muted, with most Norwegians, according to a poll, satisfied to see him receive the maximum sentence. Breivik’s massacre did not spur a movement to change Norway’s criminal laws.
Norway is not alone in its lenient, rehabilitation-oriented approach to criminal justice: the death penalty has been abolished all over Europe. Although the Fourth Section of the European Court of Human Rights has recently ruled that ‘irreducible’ life sentences may be admissible for the most severe crimes, they are extremely rare in Europe. A recent study of European sentencing laws by Dirk van Zyl Smit found that only three European nations (England, Wales, and the Netherlands) had laws theoretically permitting irreducible life sentences, and that these laws were used extremely sparingly. Criminologists see Europe — with its continent-wide ban on capital punishment and rehabilitation-oriented prisons — as an outlier in a global penal landscape.
Both legal and cultural factors account for this state of affairs. The most obvious factors today are Protocols 6 and 13 to the European Convention on Human Rights, which together require signatories to ban capital punishment in all circumstances. All aspiring EU member states must eliminate the death penalty from their law books. These protocols represent the culmination of the European movement to abolish capital punishment. Smaller nations formed the vanguard: many abolished capital punishment well before World War II (Norway abolished the death penalty for civil crimes in 1902).
After the bloodshed of World War II, the anti-death-penalty consensus strengthened in the larger European countries, leading to Germany’s abolition in 1949, the UK’s in 1969, and France’s in 1981. After France became the final piece in the puzzle, the stage was set for lawmakers and opinion leaders across Europe to irrevocably anchor the abolitionist consensus in international instruments. As of now, all European countries (except for Russia and some former Soviet republics) have signed and ratified Protocols 6 and 13. It might theoretically be possible for a member of the Council of Europe to renounce or derogate from these protocols, but the political costs of doing so make the step unthinkable, at least in peacetime.
Yet what is perhaps more interesting than the legal consensus is the popular consensus around this issue. This anti-death penalty ‘norm cascade’ (to use Martha Finnemore and Kathryn Sikkink’s model) was anything but a grass-roots phenomenon. Capital punishment was supported by strong majorities when it was eliminated in Germany, the UK, and France. Abolition was possible only because the legal and parliamentary elites in those countries had decided that abolition was a human-rights principle, not a crime-control technique. Put bluntly, these elites decided to ignore public opinion in the name of moral progress. Abolition was accompanied by intense political controversy in all these countries. After a few years, however, the debate died down, and support for executions began a slow but steady decline. Across Western Europe, support for capital punishment now hovers at between 15 per cent and 30 per cent of the population. This public consensus appears immune to changing events: neither the 2004 Madrid bombing, the 2005 London attacks, nor Breivik’s massacre had any lasting effect on public disapproval of capital punishment in European countries.
The situation in Eastern Europe is somewhat more volatile. There, abolition was imposed not by national elites, but by European institutions. Majorities continue to support the death penalty in Poland, Hungary, and the Czech Republic. Nevertheless, with increasing prosperity and tighter integration, public opinion in the new EU nations seems likely to follow the pattern established in Western Europe.
This pattern can be summarized as follows. After a period of active controversy, interest in the subject of capital punishment fades. Since inertia (always a powerful force in politics) now favours abolition, there seems little point re-opening the emotional debate over executions. No drastic increase in violent crime will occur after abolition. If there is a crime increase, the experts will reassure the public that abolition had nothing to do with it, as the death penalty has no proven deterrent effect. Eventually, the press loses interest in the subject of capital punishment’s potential return, and politicians realize it has lost its power as a vote-getter. Open support for capital punishment lives on only among right-wing fringe parties (such as the British National Party, or Germany’s far-right National Democratic Party). The adoption of capital punishment by fringe parties therefore creates a sort of self-reinforcing ring-fence around the issue: even mainstream politicians who might personally favor the death penalty choose not to mention it, for fear of being associated with unpopular fringe groups.
At the end of this process (which can take decades) we are left with perhaps 60-70 per cent of a country’s population opposing capital punishment in principle. Notably, this opposition may be relatively weak — as I found while researching my book on this subject, leading questions can elicit support for capital punishment even among people who consider themselves abolitionist. This is where treaties come into play. Even if shocking crimes such as Breivik’s might prompt some citizens to re-think their death penalty views, international commitments authoritatively banning executions stand in the way. It’s difficult to build support for a policy that has no chance of being adopted.
The central paradox of capital punishment is that its abolition itself is the most important factor in creating a democratic consensus against the death penalty. But once that consensus is created, as Norway’s muted reaction to Breivik’s sentence shows, it can stand up to even the most brutal challenge.
Note: This article gives the views of the author, and not the position of EUROPP – European Politics and Policy, nor of the London School of Economics.
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Andrew Hammel – Heinrich-Heine-Universität Düsseldorf
Andrew Hammel is an Assistant Professor in the Law Faculty at Heinrich-Heine-Universität Düsseldorf. Before entering academia, he spent around ten years representing death-sentenced individuals in Texas and federal courts. His latest work is Ending the Death Penalty, (Palgrave-MacMillan, 2010).