05 May Are Evolving Standards of Decency a One-Way Ratchet?
One of the more intriguing questions from the oral argument in the child rape death penalty case of Kennedy v. Louisiana is whether evolving standards of decency are a one-way ratchet. Here is Justice Stevens’ question from the oral argument last month:
[O]ne question that interests me but is a little divorced from the terms of the arguments so far. I know it is not popular to refer to refer to international commentary on issues like this, but the English law lords have filed an amicus brief discussing the international principle that nations that retain the death penalty may not extend the death penalty to crimes to which it does not presently apply. They suggest that as a matter of international law, there’s sort of a correspondence to our evolving standards of decency that have generally governed our Eighth Amendment jurisprudence. It’s kind of a one-way rachet, we look at trends in one direction but we don’t look to see if you suddenly have changed gears and go in the other direction. Could you just comment on that argument?… I just use[] that as an analogy to our evolving standards of decency cases which has been part of our Eighth Amendment jurisprudence, that sort of is a — one way direction in which these cases go. Do you think it’s appropriate — are you aware of any case saying we can turn around and go in another direction?
The amicus brief of British Law Lords referenced by Justice Stevens summarizes the one-way ratchet argument succinctly:
International authorities have long agreed that nations that retain the death penalty must refrain from expanding the death penalty to crimes to which it currenlty does not apply–a principle that has been codified in a regional convention and reaffirmed by the jurisprudence of human rights bodies. There is an equally strong global consensus that nations should gradually narrow the categories of offenses for which the death penalty may be imposed.
It is an interesting idea. Note that the role of comparative and international law is not with respect to the content of a particular substantive right but rather the methodology by which standards should evolve. The question posed is not what other countries do with respect to child rape and the death penalty, but rather whether other countries allow for the expansion of the death penalty. Justice Stevens is suggesting that perhaps a living constitution should evolve in the same manner that international law evolves, with the death penalty moving in only one direction toward abolition.
The apparent concern that animates Justice Stevens’ question is that the national consensus may be trending toward allowing the death penalty for child rape. If the national consensus is evolving toward a conclusion that this punishment is not cruel and unusual, on what basis can Justice Stevens limit the use of that evolving standard? I seriously doubt that the Court will rely on international or comparative law to embrace a one-way ratchet, but it is worth discussing whether our own jurisprudence would allow for such a limit on the evolving standards of decency.
I was initially shocked that the British Law Lords would submit an amicus brief at all. That was not so much because of any claim of interference with the judicial system of the U.S. (clearly, amicus briefs are nothing of the sort), but because of the audacity of a domestic court in expressing views on foreign law, and in a way submitting to the judgment of a foreign court. Of course, the answer to any such concerns is that the description of the brief by Justice Stevens isn’t quite correct: some of the more prominent amici are former Lords of Appeal. I don’t think sitting Lords of Appeal would do any such thing. I further suspect that even most former Law Lords would rather not step outside their field of specialisation and authority in this way. AS to the substance of the argument, I am a little surprised that no mention is made of Judge v. Canada. In that case, the Human Rights Committee suggested, in interpretation of Article 6 of the ICCPR (by which the U.S. is, of course, bound!), that states that had abolished the death penalty could not go back on that advance, not even by sending… Read more »