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| (L-R) Law professors Paolo Carozza,
David Sloss, and Richard Wilson participated in the panel; panelist
Sandra Babcock is pictured below. |
Posted March 24, 2004
International Law Increasingly
Influencing How U.S. Handles Death Penalty
The death penalty is a prime target for efforts to incorporate international
law into American constitutional interpretation, said law professor Curtis
Bradley in his opening remarks to the Cruel and Unusual Punishment
panel at the J.B.
Moore Society of International Law's March 20 symposium, "International
Law and Practice in American Constitutionalism." Panelists discussed
strategies capital punishment opponents are using to encourage limits
to the death penalty in the United States, as well as how international
law is increasingly affecting how the American legal system treats
the issue.
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| Professor Curt Bradley |
The Eighth Amendment bans “cruel and unusual punishment,” Bradley
explained, but the Supreme Court has left the phrase undefined, while
holding that it should be interpreted in light of “evolving standards
of decency that mark the progress of a maturing society.” Ironically,
there’s some historical evidence that the Eighth Amendment was
written to ensure Congress would not authorize the inhumane punishments
used in continental Europe at that time. Now many Europeans and death
penalty opponents are objecting to the use of the death penalty in
the United States and are working to find ways to allow international
law to intervene. Some evidence shows they are making headway: in Atkins
v. Virginia (2002), the Court ruled that executing the mentally
retarded violates the Eighth Amendment. Those justices in the minority—Rehnquist,
Scalia, and Thomas, “complained about the majority’s reliance
on international practice.” In a case currently before the Court, Roper
v. Simmons, the Missouri Supreme Court held that executing someone
who was under 18 at the time of the crime violates the Eighth Amendment.
While the Court upheld such sentences applied to those 16 and older
in a 1989 decision, the Missouri court predicted the U.S. Supreme Court
would reverse that decision in light of the international consensus
against executing juvenile offenders.
In using the death penalty, the United States keeps company with China,
the Congo, Iran, Egypt, Belarus, Saudi Arabia, and Singapore, said
panelist Richard J. Wilson, a professor at American University’s
Washington College of Law. Fifteen years ago the issue was not on the
radar in U.S. courts, but now death penalty opponents see capital punishment
as a wedge issue in applying international law. The best indication
of their success is “the level of intensity with which [the strategy]
is being attacked,” he said. Congressmen in the U.S. House of
Representatives have introduced a “constitutional preservation
resolution” that proclaims international laws have no legal standing
in the United States.
The debate has played out prominently when the United States seeks
to extradite criminals who have fled the country. In 1989, the European
Court of Human Rights held that extraditing convicted murderer Jens
Soering to the United States would violate Article 3 of the Convention
for the Protection of Human Rights and Fundamental Freedoms, which
prohibits torture or inhumane punishment. “The wait—the
psychological pressure on a defendant, speculating each day on the
possibility of death on death row” was considered inhumane by
the court. Soering, a former University of Virginia student who has
maintained his innocence, is now serving a life sentence in Virginia
for stabbing his then-girlfriend’s parents.
The underlying problem is “a deep division in perception about
what the death penalty means both in the United States and outside
the United States,” Wilson said.
Foreign governments are increasingly demanding assurances from the
United States that the death penalty will not be imposed before they
agree to extradite criminals. Foreign nationals make up less than 5
percent of convicts on death row, but international law requires that
they be given the opportunity to seek help from a consulate; the American
Bar Association now requires counsel to raise this issue as part of
competent representation, Wilson said
“Defendants have global mobility; their assets have global mobility,” he
said. “It puts the U.S. in the center of this debate because
we cannot avoid it.”
Attacks on U.S. policy have taken two forms: the less successful argument
that international laws and treaties (such as the Convention Against
Torture and the Convention Against Racial Discrimination) are binding
in U.S. courts, and secondly that international laws, even if they’re
not binding, have interpretive importance in U.S. courts. Some opponents
of incorporating international law have argued that international treaties
don’t apply in domestic courts until they are adopted by domestic
legislation. Wilson said that international human rights law can’t
be completely ignored, and the United States shouldn’t ignore
the perceptions of the rest of the world.
While U.S. courts tend to dismiss the importance of other nations’ laws,
foreign courts frequently consult a variety of opinions from abroad,
said Notre Dame Law School professor Paolo Carozza.
“It is startling how courts in every part of the world . . .
do use foreign and comparative jurisprudence in discussing the legitimacy
of capital punishment in their systems,” he said. But “they
don’t necessarily follow the decisions of the foreign courts.” Foreign
opinions do not override the positive law of their country, but they
use such decisions in “interpretive environments.”
Carozza said he felt some sympathy for Justice Scalia’s critique
of the practice of examining international law because when Supreme
Court justices do reference foreign jurisprudence, they often just
use it as statistical or cursory evidence. “There is literally
no substantive engagement of the reasons why [a decision happened the
way it did]. It is raw data.”
Despite the “progressive flavor” of referencing foreign
sources, pointing out that elite Western countries don’t use
the death penalty reeks of 19 th-century colonialism, the notion that
there’s only a select group of civilized nations.
It may be informative to examine why a country abolished the death
penalty, Carozza said; for example, many countries who wanted to join
the EU were coerced into abolishing the death penalty before they were
allowed in.
Foreign judges most often look at the opinions of U.S. justices who
have addressed law’s relation to human dignity, he added. Looking
at foreign law in a substantial way would help judges account for why
we punish in the way we do, as well as be more open to others’ laws,
he concluded.
Panelist David Sloss, a St. Louis University School of Law professor,
noted a potential conflict between the International Covenant on Civil
and Political Rights (ICCPR; signed by the United States in 1977),
which states that death may only be imposed for the most serious crimes,
and actual practice in U.S. courts. Even Supreme Court decisions have
had a mixed message; in Coker v. Georgia (1977) the Court
declared it unconstitutional to impose the death penalty for raping
an adult woman, but in Tison v. Arizona (1987) declared the
death penalty could be imposed on a murder accomplice, which could
potentially conflict with the ICCPR standard of “most serious
crimes.”
The ICCPR also prohibits arbitrary deprivation of life, offering death
penalty opponents a potential strategy in U.S. courts. Sloss conducted
research into geographic discrepancies in how the death penalty was
imposed in Missouri from 1997-2001, in an effort to find out whether
capital punishment was imposed inconsistently. Defendants in potential
homicide cases in rural counties were four times as likely to get sentenced
to death, but Sloss called the figure misleading because of broader
discrepancies. Prosecutors in urban areas know juries distrust the
legal system and stopped trying to seek a death sentence. There were
no death verdicts in urban Jackson County in 207 cases, but in 97 other
counties, 542 cases led to 23 death sentences. Even among more rural
counties, Sloss noted discrepancies.
“Why are we seeing this kind of disparity across counties?” he
asked. “It’s driven by prosecutorial discretion…Some
of them are very gung ho on capital punishment, some of them are not.”
Sloss blamed Missouri law for the problem, noting that it allows murders
to be considered deliberate in the time span of the blink of an eye,
eliminating the distinction between first- and second-degree murder.
Missouri is typical among states for requiring aggravating factors
to pursue the death penalty, but the factors are so broad—for
example if the crime is committed in a “heinous or depraved manner”—that
prosecutors “can throw that on every case they want to.” Discretion
is equivalent to arbitrariness, Sloss said. “Most serious crimes” really
applies to a sub-category of murders, he argued, and his study shows
the United States is not complying with either provision of the ICCPR.
Sloss predicted states would continue to apply more limitations to
whom the death penalty applies to, but the ICCPR may give the federal
government leverage to effect change, if it chooses to use it.
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| Sandra Babcock: “They’re
all waiting to see what the ICJ is going to do with Avena.” |
When people are arrested in a foreign country, they are subject to
the Vienna Convention on Consular Relations, which in Article 36 requires
the arresting country to inform the defendant of their right to seek
help from their consulate, said Sandra Babcock, director of the Mexican
Capital Legal Assistance Program. Of the 140 foreign nationals on death
row, 56 are Mexican nationals, she noted.
In the mid-1990s a number of high-profile executions of foreign nationals
in the United States brought more attention to the issue, in particular
because their governments—including Canada, Germany, and Paraguay—strongly
objected to the executions, claiming that the defendants weren’t
notified of their right to seek help from the consulate and that the
consulate had not been informed of the arrest and conviction. Paraguayan
officials said if they had been notified, they could have been able
to persuade their countryman to accept a plea bargain; in Paraguay
and Mexico, plea bargaining doesn’t exist, and defendants likely
wouldn’t understand how it could save their lives. Both countries
eventually brought suit against the United States for violating the
Convention, but were denied cert in the Supreme Court. However, the
International Court of Justice reacted more favorably.
In the 1999 LaGrand case, in which Germany sued the United States
for executing two German nationals without informing consular officials,
the ICJ affirmed the court’s power to issue provisional measures
requiring a temporary stay of execution. The United States disputed
that the Vienna Convention confers rights to detainees rather than
only the governments involved, but the ICJ ruled that the rights belonged
to individuals as well. The ICJ also ruled that an apology was not
a sufficient remedy for a violation of Article 36, Babcock added, and
it’s still an open question of what should happen if the United
States is found in violation of the Convention.
After the LaGrand decision, in cases where a violation of the Convention
was alleged, the United States federal government would merely write
a letter to clemency officers notifying them of the situation.
“We felt that that was unlikely to have an effect,” Babcock
said, especially since many Mexicans on death row are imprisoned in
Texas, where the Texas Board of Pardons and Paroles does not hold hearings
for clemency, and proceedings and standards of review—if there
are any—are not open to the public.
“To Mexico…this was an entirely insufficient response
to the LaGrand decision,” she said. In January 2003, Mexico requested
provisional measures on behalf of all Mexican nationals, and the ICJ
ruled the United States should take steps to prevent the looming executions
of three Mexican nationals, pending the decision of a suit by Mexico
against the United States for violating the Convention. The United
States has complied, Babcock said, but it’s unclear whether ICJ
decisions are binding in the United States.
“This issue has never been resolved by the Supreme Court,” she
said. Unlike a federal court, which can send U.S. marshals to enforce
compliance, the ICJ “doesn’t have the power to enforce
its judgment.”
The fact that the states are waiting for a ruling in what is known
as the Avena case indicates the growing acknowledgement of international
opinion, Babcock suggested. “They’re all waiting to see
what the ICJ is going to do with Avena.”
Although one execution date has been set for May 18, the ICJ will
likely release a ruling before then, making for an “extraordinary” delay
of a year and a half because of the ICJ decision.
In the Mexico suit, the United States is arguing that complying with
LaGrand through the clemency process is adequate. Babcock said she
expects the ICJ to resolve whether a clemency review is enough, and
clear up the issues raised in LaGrand, a decision that was “too
mushy.”
Furthermore, if the ICJ says the case against the Mexican nationals
should be dismissed because of a Convention violation, the Supreme
Court will likely need to decide the effect of ICJ orders within the
U.S. legal system. In one case the defendant wasn’t even the
triggerman in the murder for which he is on death row.
“I have a hard time believing they would not take that case,” she
said. “It’s just going to keep coming up again and again.”
Babcock said there are still many violations to the Convention in
the United States, but has noted a “marked improvement, particularly
on the border.”
“Until there is some recognized sanction, I don’t think
we’re going to see full compliance,” she said.
• Reported by M. Wood
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