Foreign Law, Federal Law, and the Eighth Amendment

I’m currently making preliminary revisions to a forthcoming article in which I try to do new and exciting things with proportionality review under the Eighth Amendment to the U.S. Constitution. While attempting to strengthen my original arguments I’ve stumbled upon an issue which might be of interest to Opinio readers.

Let me first set the stage. There are three basic elements of proportionality review: a judicial determination of whether a sentence is justified given the acceptable goals of punishment (this is vastly oversimplified, as readers of the full article will see); a comparison with the sentences imposed by the same jurisdiction for more or less serious crimes; and a comparison with the sentences imposed by different jurisdictions for the same crime. What is the relationship between these elements? Justice Kennedy’s view seems to be that the judicial determination is primary, while intra- and inter-jurisdictional comparisons provide evidentiary support or validation for that determination. The latter are ways to show that the Court’s judgment is not quirky or idiosyncratic but is in fact widely shared. Critics objected, however, when the Court in Atkins and Roper prohibited the execution of certain classes of defendants based on less than a majority view among the several states — an emerging trend in Atkins and at best a stable minority in Roper. Inter-jurisdictional comparison was claimed to be necessary to cabin judicial discretion.

I have long thought that Kennedy must be right, but now have a new reason for thinking so: If a finding of disproportionality must be supported by a majority of states (or even a trend, for that matter), then federal crimes with no state analogue will be insulated from proportionality review. Take Trop v. Dulles, which forbade denaturalization as a penalty for desertion in wartime. This was a quinitssentially federal crime with a distinctively federal penalty. No state majority was possible, so judicial determination, aided by intra-jurisdictional comparison with other federal crimes and punishments, had to do the job.

Here is where things get potentially interesting for Opinio readers: The Trop Court did engage in inter-jurisdictional comparison; it just looked to non-U.S. jurisdictions:

The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. It is true that several countries prescribe expatriation in the event that their nationals engage in conduct in derogation of native allegiance. Even statutes of this sort are generally applicable primarily to naturalized citizens. But use of denationalization as punishment for crime is an entirely different matter. The United Nations’ survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion. In this country the Eighth Amendment forbids this to be done.

Trop v. Dulles, 356 U.S. 86, 102-103 (1958).

Roper was criticized not only for lacking support in state consensus, but for looking beyond our borders to the laws of foreign nations. But notice that where the law challenged is a federal law without a state analogue, reference to foreign law takes on a different character. Here foreign law provides the independent validation of judicial determinations that state law cannot. The conservative critic therefore faces the following choice: abandon proportionality review, either in whole or with respect to federal laws with no state analogues; leave judicial discretion cabined only by intra-jurisdictional comparisons which themselves depend upon judicial determinations of relative seriousness; or accept the use of foreign law in federal cases. The choice between well-settled doctrine, rule-of-law values, and democratic nationalism will not be an easy one for such critics to make.

My own view, if it is not clear already, is that when evaluating national laws a judge may consider the laws of other nations, even if when evaluating state laws she may only consider the laws of other states. But of course the permissible use of foreign law in federal cases invites us to ask why state cases should be any different. I have a guess as to how conservatives will repond, but rather than continue debating myself I’ll open the discussion to Comments.