For the abolition of the death penalty in america: the advocacy of robert badinter

HUMAN RIGHTS QUARTERLY

For the Abolition of the Death Penalty in America: The Advocacy of Robert Badinter
Martin A. Rogoff*
Robert Badinter, Contre la peine de mort: Écrits 1970-2006 (Librarie Arthème Fayard, Paris, 2006), pp. 320; Robert Badinter, L’Abolition (Librarie Arthème Fayard, Paris, 2000), pp. 286. ABSTRAcT
This essay reviews two books by Robert Badinter, former President ofFrance’s Constitutional Council and former French Minister of Justice. Taken together, they describe his successful advocacy against the death penalty in France, both in the courtroom and in the political arena. The essay focuses on his current goal of advancing the cause of abolition in the United States, as expressed in Contre la peine de mort. After making the case that arguments against the deathpenalty are for the most part unoriginal and unconvincing to non-abolitionists, the essay maintains that successful opposition to capital punishment must be based primarily on the strategies and tactics of the advocate. It then goes on to explore and analyze the reasons for Badinter’s success in France, and concludes by stressing Badinter’s ability to exercise a highly nuanced judgment, grounded inhis historical and literary sensibilities, that enables him to be flexible and adaptable as his advocacy takes different forms or as situations develop in unpredictable ways.

* Martin A. Rogoff is Foundation Professor of Law and Director of the French Law Program at the University of Maine School of Law. He is the author of numerous articles on French law. Human Rights Quarterly 30 (2008)772–796 © 2008 by The Johns Hopkins University Press

2008

Badinter and the Abolition of Death Penalty

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I.

INTRoDUcTIoN

“Have you heard the news? The United States Supreme Court has just abolished the death penalty. The radio just announced it.”1 Less than an hour before, arguments in the 1972 capital trial of Roger Bontems and Claude Buffet before the Assises Court of Troyes hadconcluded and the case had gone to the jury. “If I had known that an hour earlier, what a closing argument I could have made for the defense,” lamented Robert Badinter, who was defending Bontems.2 In 1981, largely as the result of Badinter’s advocacy and political acumen, France would abolish the death penalty. But Badinter’s immediate reaction to the news of the US Supreme Court’s 1972 decision inFurman v. Georgia3 is indicative of the world-wide significance of the United States attitude toward the death penalty. The US position matters, and matters greatly, not only in the United States itself, but everywhere. Contemporary reports in France were incorrect. Furman only suspended the application of the death penalty; it was reinstated four years later when the Supreme Court upheld theconstitutionality of three revised death penalty statutes.4 Today, thirty-six US states, the US military, and the federal government still retain the death penalty.5 Robert Badinter, a fervent, long-time advocate for the abolition of the death penalty has, as a lawyer, publicist, politician, and government official, had a profound influence on death-penalty law in France and beyond. Before Franceabolished the death penalty, he was not only an effective courtroom advocate in capital cases,6 but also a persistent and persuasive voice for abolition both in print and broadcast media. Later, as Minister of Justice, he

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6.

RobeRt badinteR, L’exécution 158 (1973) [hereinafter L’exécution]. Id. Furman v. Georgia, 408 U.S. 238 (1972). Gregg v. Georgia, 428 U.S. 153 (1976);Profitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976). Death Penalty Information Center, Facts About the Death Penalty (1 Mar. 2008), available at http://www.deathpenaltyinfo.org/FactSheet.pdf (hereinafter Facts About the Death Penalty). Besides the fourteen abolitionist states (Alaska, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New York, North...