27 Jun Justice Scalia on Those “Sanctimonious” Europeans
There was an interesting little sidebar comment from Justice Scalia in yesterday’s death penalty decision in Kansas v. Marsh. Scalia said that:
There exists in some parts of the world sanctimonious criticism of America’s death penalty, as somehow unworthy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently-and indeed, many of them would still have it if the democratic will prevailed.3) It is a certainty that the opinion of a near-majority of the United States Supreme Court to the effect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.
Footnote 3. It is commonly recognized that “[m]any European countries ··· abolished the death penalty in spite of public opinion rather than because of it.” Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U.L.Rev. 911, 931-932 (2006). See also id., at 932, n. 88. Abolishing the death penalty has been made a condition of joining the Council of Europe, which is in turn a condition of obtaining the economic benefits of joining the European Union. See Waters, Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, 93 Geo. L.J. 487, 525 (2005); Demleitner, Is There a Future for Leniency in the U.S. Criminal Justice System? 103 Mich. L.Rev. 1231, 1256, and n. 88 (2005). The European Union advocates against the death-penalty even in America; there is a separate death-penalty page on the website of the Delegation of the European Commission to the U.S.A. See http://www.eurunion.org/ legislat/deathpenalty/deathpenhome.htm (as visited June 17, 2006, and available in Clerk of Court’s case file). The views of the European Union have been relied upon by Justices of this Court (including all four dissenters today) in narrowing the power of the American people to impose capital punishment. See, e.g., Atkins v. Virginia, 536 U.S. 304, 317, n. 21, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (citing, for the views of “the world community,” the Brief for the European Union as Amicus Curiae ).
There are several things that I find interesting about Scalia’s comment. First, his comment that civilized societies can have the death penalty are the kind of remarks that make it difficult to argue that the death penalty violates customary international law. The United States has a long-standing practice of defending the practice, such that the prohibition of the death penalty is not customary international law on the international plane, or if it is, we are a consistent objector.
Second, his objection in footnote 3 to the countermajoritarian abolition of the death penalty in Europe is worthy of note. He has said this on numerous occasions and I have never heard a good response to his cricticism. Is it true or not that democratic majorities were denied their free will when the death penalty was outlawed in European countries? His citation is to an NYU Law Review article by Stephanos Bibas (available for download here), but that article says very little about the subject of the death penalty, and simply uses the death penalty as an example of the struggle between elites and majorities.
Third, Scalia seems to object to the abolition of the death penalty as a condition to membership in the Council of Europe and the EU. Why is this objectionable? I do not find it problematic for a supranational entity to establish criteria that it wishes for membership in that entity, including monetary, democratic, political, and other benchmarks. How is that countermajoritarian if a country seeking membership makes the political calculus that they will give up some things (like the death penalty) in exchange for the benefits of EU membership?
Finally, I cannot tell if Scalia objects to amicus briefs from the European Union on the death penalty, but it appears that he does. I would have thought that amicus briefs from the EU or from foreign countries would be welcome in almost any case in which they have a genuine interest. Of course, the justices are free to ignore amicus briefs, but I do not understand the objection to the fact that the EU formally submits its position to the Court. If I recall correctly, the amicus briefs the EU submitted in Roper and Atkins spoke to the abolition of capital punishment for juveniles and the mentally retarded in other parts of the world. That certainly seems like relevant information for those justices who choose to take such things into account.
Having said all that, his choice of the word “sanctimonious” does seem quite apt. There is a high-minded view in many European circles (and elsewhere) that no reasonable person can subscribe to a view that supports the death penalty. This is despite the fact that many civilized countries engage in the practice, and despite the fact that the death penalty was meted out in previous international criminal trials only a few short decades ago.
Roger, I agree with you that there is a highly pronounced element of “sanctimoniousness” in many European circles when it comes to criticising the US, especially the “flyover” part. It comes very easy to Europeans to assume a position of intellectual and moral superiority – I even had a French friend of mine tell me that Americans are “cultural imperialists” – as if half of Africa spoke French of its own volition. However, I do have some problems with Scalia’s criticism of the abolition process in Europe. It was, in fact, quite democratic. As far as I know, no constitutional court in any European country said that the death penalty was unconstitutional or violates international law. On the contrary, it was all done through the legislatures, and through the adoption of additional protocols to the European Convention on Human Rights. The legislatures of all new members of the Council of Europe had to decide whether they wanted to join or not – nobody forced them, and if they had economic incentives for doing so, so what. Now, the fact that if you conducted a poll a large number of people, probably even a majority in many countries, would say that… Read more »
I wonder if it is really a good idea for a judge to write this sort of thing. The tone certainly does not reflect too well either on the dignity of ‘the honorable Justice’ or, perhaps, the Court. Justice Scalia berates one of his colleagues on the Bench for giving support to critics of the American practice of capital punishment in Europe. Sure, he ignores the fact that such criticism by no means comes only from across the Atlantic, or even across any borders. But, above all, his tone seems to suggest that Justice Souter is, as it were, ‘aiding the enemy’. This is an incredible way of conceiving of the debate, and little short of scandalous. Besides, while there is some basis for accusing many Europeans (though not the whole ‘part[] of the world’!) of sanctimoniousness, the particular evidence cited by the Justice does not convince me in the least. If I am against capital punishment, what exactly would make me think differently of French or British executions a few decades ago than of today’s executions in the US? Nothing, surely, and Justice Scalia’s charge acknowledges as much. Why, then, does he maintain that the abolitionists in Europe do… Read more »
Gee, I can’t help wondering who would win a straw-poll on the question of “Who is the most sanctimonious justice on the US Supreme Court?”
… and I’m thinking St. Antonin the Evangelist might be a pretty safe bet.
But let me add that I usually enjoy reading his opinions regardless of how much I agree with them, which ranges from 0-100%. In this case, though I’m no fan of the death penalty, I thought he made some good points.
Let me add: not the points that Prof. Alford is looking at here.
Very briefly on one of Justice Scalia’s other points: he writes that of the many people initially sentenced to death and later let off, virtually none were so let off because they were shown to have been actually innocent of the crime of which they were convicted. The concurrence goes on: ‘Most [of the successful appeals] are based on legal errors that have little or nothing to do with guilt.’ I find this distinction extremely troubling. ‘Like other human institutions, courts and juries are not perfect’ (Kansas v. Marsh, Scalia, J., concurring – sound familiar?). Because the whole system of criminal justice is not perfect, we rely on a set of rules to guide the process, so as to produce just results. Because the system is not perfect, we cannot hope for perfectly, substantively correct verdicts, only for procedurally correct ones. In other words, a verdict is correct if it conforms to the applicable rules. If it does not so conform, it is not correct. Therefore, since guilt can only be established by a correct judgment, there is no guilt if the judgment was fatally flawed. All legal errors therefore have to do with guilt, at least insofar as the… Read more »
I agree completely with Justice Scalia. The Europeans are quick to tut-tut, yet prisons in France and Belgium were recently cited for terrible conditions, and convicted cop-killer Mumia A.J. was granted honorary Paris citizenship in 2003 – see http://www.refuseandresist.org/article-print.php?aid=1110.
It’s been reported, too, that 70% of English subjects support the re-imposition of the death penalty, and between 60-70% of Canadians likewise would want the death penalty reinstated (see http://www.wesleylowe.com/cp.html). I have no problem with a justly imposed death penalty for heinous killings. None.
So European states don’t get it right all the time, either. And the point is? As I said, just because European states commit their own human rights abuses – or have done so – doesn’t mean that the European critics of the death penalty support these abuses. There’s simply nothing sanctimonious in it. This applies also where these critics happen to be the European states themselves. They do try to get their houses in order, so why shouldn’t they ask others to do the same (on their reading of what ‘in order’ means, to which they are entitled, but on which I express no view). And as to the opinion polls, Marko made a very good point: even those who support the death penalty in theory don’t feel at all strongly about it. They might not mind if their country still had it, but they certainly don’t put any pressure on anyone to reinstate it. Also, many of these views are largely unconsidered: people may well support the death penalty for specific cases that will be on their minds, but that is an entirely different view from saying that this penalty should be generally available, with all the attendant risks.… Read more »
I think Scalia’s point about the Council of Europe and EU requiring the abolition of the DP is meant to show that abolition in certain countries is not out principled opposition, but rather as a result of extortion by European elites that was resented by the population of the prospective member countries. This was certainly the case, for example, in Russia and Turkey. As an int’l legal matter, that would, I think, reduce the validity of those countries’ abolition as evidence of CIL since they did not do so out of sense of legal obligation.
Scalia’s objection to the filing of the amicus breif is that he thinks the U.S. criminal justice system is a purely domestic concern and frankly none the European’s business. He clearly objects to attempts (both in the U.S. and abroad) to internationalize such standards (c.f. his previous dissents in 8th amendment cases citing European law). I think that this a more relevant than his comments on death penalty abolition in Europe which was elite driven but, as has been pointed out above, is not terribley controvetial.