01 Mar International Law and the Juvenile Death Penalty
The Supreme Court today held that the practice of executing individuals for crimes they committed below the age of 18 is a violation of the Eighth Amendment. Justice Kennedy’s opinion for the Court here includes an extended discussion of the relevance of foreign and international practice to the interpretation of the Eighth Amendment. Some highlights on this issue:
Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. (emphasis added)
…
It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10.11. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions. (emphasis added)
…
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.
The Court also cited:
- International Covenant on Civil and Political Rights, Art. 6(5), 999 U. N. T. S., at 175
- United Nations Convention on the Rights of the Child, Art. 37,
- American Convention on Human Rights: Pact of San José, Costa Rica, Art. 4(5)
- African Charter on the Rights and Welfare of the Child, Art. 5(3)
I can’t resist observing that the U.S. government has specifically reserved to the question of the execution of juveniles in signing and ratifying the ICCPR and in signing the Convention on the Rights of the Child. It may have done so also with the American Convention on Human Rights.
I am not sad to see the juvenile death penalty go away, but I do think it is odd that treaties to which the U.S. government specifically reserved the question at issue (the international legality of the juvenile death penalty) are being used as evidence of what the U.S. Constitution requires.
these issues are addressed in my article, “International Law, U.S. Sovereignty, and the Death Penalty,” 35 Geo. J. of Int’l L. 547 (2004). It’s available on the web here:
http://www.findarticles.com/p/articles/mi_qa4140/is_200404/ai_n9472187
Just downloaded the decision, but from what I’ve read here J. Kennedy highlights exactly what J. Scalia expressed concern about regarding use of int’l law in his recent discussion/debate with J. Breyer.
The steady creep that’s sweeping everything into becoming a “constitutional question” bodes ill for both the Court and the country.
To the extent that the int’l law against the juvenile death penalty becomes ius cogens, why would it be relevant that the US had reserved the issue in the treaties it signed. My understanding is that you can’t reserve out of such areas of law.
“the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”That depends on what the meaning of the word official is. In any case, this assertion evidences a significant degree of escapism
If killer Simmon’s was a terrorist, who planned, intimidated and when on to kill the President of the United States (or even a Supreme Court Justice) because of his beliefs would he be shielded from the death penalty?
In criticizing Justice Kennedy’s decision in Roper, Julian claims that “treaties to which the U.S. government specifically reserved the question at issue (the international legality of the juvenile death penalty) are being used as evidence of what the U.S. Constitution requires.” That’s a very misleading description of Section IV of the opinion. Kennedy doesn’t claim that international treaties are generally relevant to the interpretation of the U.S. Constitution, as Julian implies. On the contrary, Kennedy makes it exceptionally clear that such treaties — as well as “the laws of other countries” and “international authorities” — are relevant only to the Court’s interpretation of the Eighth Amendment. Here is the sentence Julian replaces with ellipses — the sentence that immediately follows “This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility”: “Yet at least from the time of the Court’s decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments.’” (emphasis mine) Kennedy then cites four Supreme Court cases — Atkins, Thompson, Enmund, and Coker — all of which dealt with claims… Read more »
Hi Kevin,
I agree that Justice Kennedy is not trying to turn the U.S. into an arm of the U.N. That’s why I quoted and highlighted the section of his opinion pointing out that the international practice is not controlling on the Court.
The question is whether or not it is relevant to Eighth Amendment interpretation. I suppose it could be, but if the U.S. government has taken a view that it is going against international practice, it seems to me that this view should have some weight.
I am sure there are other reasons to ban the juvenile death penalty under the Eighth Amendment. But citing international practice to which the U.S. government does not agree seems the least persuasive way of doing so.
Hi Julian, I knew what you were arguing, but I was concerned that a casual reader might infer from your post that Kennedy believes international law is relevant to the interpretation of the Constitution as a whole, not just to the Eighth Amendment. On the substantive issue, I think it’s difficult to argue that the U.S. government’s rejection of international practice answers the question of whether “evolving standards of decency” have now made the execution of juveniles cruel and unusual. That inquiry is, by definition, broader than the federal government’s position. At a minimum, the inquiry includes a survey of what the 50 states are doing; at a maximum, it includes the 50 states and international practice. That’s where Scalia and Kennedy part ways. Scalia accepts — however reluctantly — that the meaning of “cruel and unusual” evolves over time, but he rejects Kennedy’s method for analyzing changes in the practices of the 50 states, as well as — more relevant to our discussion — Kennedy’s nod to international practice. Unfortunately for Scalia, precedent is against him. Rightly or wrongly, the Court has consistently held since Trop v. Dulles, decided in 1958, that international practice is, in fact, relevant to… Read more »
#3
To the extent that the int’l law against the juvenile death penalty becomes ius cogensPutting aside for now that ius cogens is a specious notion, even if we were to accept the legitimacy of this concept, how on earth could this case give rise to the invocation of ius cogens when there is evidently fundamental disagreement?
“the U.S. government doesn’t get to dictate standards of decency by fiat. The rest of the world gets its say, too.”
No… the US people get to dictate standards of decency within their own states. The rest of the world doesn’t get a say in it. I would argue that the Court overreached by even allowing a “consensus” of states to set the standards in a particular state, but no… the “world community” has no say whatsoever.
“cruel AND unusual”.
I would argue that the meaning was originally that you couldn’t give someone a non-standard punishment that was cruel.
That is, whatever the law proscribes as punishment for some offense is, by definition, not “unusual”. Whether or not it is cruel is therefore irrelevant, as it must be both.
“But citing international practice to which the U.S. government does not agree “
Not to mention the U.S. public. But what do they know?