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Nov 20, 2008 3:11 PM CST |
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By a 5-4 vote, our Supreme Court has now made the United States the last nation on the planet officially to abolish the juvenile death penalty. In recent years the handful of other hold-out executioners—China, Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen—all relented. This fact was not lost on our Court. Writing for the majority, Justice Anthony Kennedy noted that the conclusion that the death penalty is too harsh for offenders under eighteen is confirmed by the “stark reality” that the us stood alone in executing juveniles. The case of Roper v. Simmons, decided this week, was not only about the juvenile death penalty, but also about the proper role of foreign and international law in interpreting our Constitution. Six justices—the majority plus Justice Sandra Day O'Connor in dissent—now clearly embrace comparative and international law as relevant to the “evolving standards of decency” that inform judgments on what are “cruel and unusual” punishments forbidden by the Eighth Amendment. In contrast, Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas in dissent, objects to the majority's taking “guidance from the views of foreign courts and legislatures.” After Roper, what is the role of foreign and international law in interpreting our Constitution? What should it be? The majority says that role is limited but nonetheless important. Only fifteen years ago, in two cases both decided by 5-4 margins, the Court struck down the death penalty for juveniles fifteen years or younger, but upheld it for offenders age sixteen or seventeen. In now revisiting the death penalty for 16 and 17- year-olds, the majority looked first to whether a consensus in our own nation has developed against it. The majority found that “today our society views juveniles...as categorically less culpable than the average criminal.” Thirty states prohibit the juvenile death penalty (counting twelve which have no death penalty at all). Among the other twenty states, only three have executed juveniles in the last ten years. And in the last fifteen years, five states have abandoned the death penalty for juveniles, while none have reinstated it. The majority then proceeded to its “own judgment” on the question. Juveniles, it ruled, are more impetuous and more vulnerable to peer-pressure than adults, while their characters are less “irretrievably” shaped. So they are less culpable than adults and even less likely to be deterred from crime by the death penalty, while they have greater potential to be reformed. It is therefore disproportionate to impose on them the most severe punishment possible. Only then did the majority turn to foreign and international rejection of the juvenile death penalty, and then only as “confirmation” of their own judgment. The Court acknowledged “the overwhelming weight of international opinion against the juvenile death penalty....The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.” The Court also found “particular relevance” in Britain's abolition of the juvenile death penalty half a century ago. This matters, not only in light of our historic ties with Britain, but also because our Eighth Amendment derives from the ban on “cruel and unusual Punishments” in the English Declaration of Rights of 1689. But how much weight does the foreign and international ban on the juvenile death penalty really swing with the majority? On the one hand, the Court's reasoning asserts that if it had not already found a national consensus and reached its own judgment against the juvenile death penalty, then world legal opinion would play no role at all, since it merely “confirms” what the Court has already concluded. That is illustrated by the dissent of Justice O'Connor. She agreed with the majority's view of the proper role of foreign and international law. However, she viewed the evidence of an American consensus against the juvenile death penalty as too thin, and she criticized as too categorical the majority ruling that, in effect, no juvenile could ever be as culpable as an adult. In her opinion, then, there was no occasion to consider foreign and international law in this case. But if foreign and international law does no more than merely confirm judgments already reached on domestic grounds, the majority gave it far more emphasis than strictly needed. For example, when the Court abolished the death penalty for the mentally retarded three years ago, it barely mentioned foreign and international law, and only in a footnote. By contrast, its new ruling devotes an entire section of text to the laws and views of the world community. Justice Scalia, joined by Justices Rehnquist and Thomas, did not buy the majority's effort to minimize the impact of foreign and international law on its decision. He protested that the majority allowed “the views of other countries and the so-called international community [to] take center stage.” He rejected “the basic premise of the Court's argument—that American law should conform to the laws of the rest of the world....” The real role of foreign and international law in the outcome was probably more than the majority let on, but less than the exaggerated claims of Justice Scalia. Suppose the juvenile death penalty were still embraced by most democratic nations, including Britain. In that scenario it seems unlikely that Justice Kennedy, for one, would have ruled against it. So the “stark reality” of America's complete international isolation on this issue may in that sense have been decisive for the outcome. On the other hand, suppose that, even as the rest of the world rejected the juvenile death penalty, many American states still regularly executed juveniles, and some states reinstated the juvenile death penalty. In that scenario, one cannot imagine the majority striking down the juvenile death penalty because of what other nations do. The lesson in the end is that America is part of a larger world, to whose laws our judges should pay respectful attention, but not obeisance, on otherwise debatable issues of interpreting our own Constitution. As Justice Kennedy concluded, “It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.” Doug Cassel is Director of the Center for International Human Rights of Northwestern University School of Law. Views expressed are those of the author, and not necessarily those of Northwestern University, the Center of International Human Rights, or Chicago Public Radio. |
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