Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues

International Law, the Eighth Amendment, and the Death Penalty

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Christian Kim

Should international views be given greater consideration in the interpretation of the evolving standards of the Eighth Amendment?

The United States has been pressured by the international community for its stance on capital punishment.  This pressure has recently been reignited with the state of Arkansas announcing the execution of eight death row inmates in the span of ten days at the end of the month.[1]  Although historically many nations exercised capital punishment, the majority of modern day states have either curbed or completely outlawed capital punishment.[2]   In the case of S v. Kaywanyane and Another, South Africa’s highest court ruled that, “[e]veryone, including the most abominable of human beings, has a right to life, and capital punishment is therefore unconstitutional.”[3]  Canada, after a five year moratorium, passed the C-84 bill, which abolished the death penalty.[4]  As one of the prime leaders in the world for human rights movements, the international community has been puzzled by the United States’ archaic stance on capital punishment.  Despite attempts to kick outside influence from our courts, we have seen such international influence creeping in starting as early as Paquete Habana.  Even the heated topic of capital punishment has not been immune to international influence.

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In Thompson v. Oklahoma[5], the Supreme Court found that the execution of an individual under the age of 16 would be a cruel and unusual punishment under the 8th Amendment’s contemporary standards of decency.  The plurality talked about the “evolving standards of decency,” which was stated in Trop v. Dulles as an indicator of a “maturing society.”[6]  To reach this evolving standard of decency, the court stated that it “is also consistent with the views expressed by… other nations that share the Anglo-American heritage” and additionally, “by the leading members of the Western European Community.”[7]  The court even referred to three human rights treaties that prohibit juvenile capital punishment in the footnotes, specifically: Art. 6(5) of the International Covenant on Civil and Political Rights, Art. 4(5) of the American Convention on Human Rights, and Art. 68 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War.[8]

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In Roper v. Simmons[9], the Supreme Court concluded that capital punishment for a juvenile is unconstitutional.  While the court elaborated that international views “do not dictate the outcome of our Eighth Amendment inquiry” the court mentioned that the international community is “instructive for its interpretation of the Eight Amendment’s prohibition of ‘cruel and unusual punishments.’”[10]  The court looked at various statistics in the world to point out that “only seven countries other than the United States have executed juvenile offenders since 1990.”[11]

In Atkins v. Virginia[12], the Supreme Court ruled that imposing the death penalty on mentally handicapped individuals would be a cruel and unusual punishment under the 8th Amendment.  Even though the court relied on its conclusion based on only domestic findings, the majority mentioned in a footnote that the internationally community opposes capital punishment for mentally handicapped individuals[13]

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To determine what constitutes cruel and unusual under the Eighth Amendment, our courts placed an emphasis on the “evolving standards” in our nation.  Although there has been a lot of opposition on the use of international views to determine our constitutional rights, it is not a novel practice to have our courts cite international laws or sources, as shown throughout history.  Through transnational seminars and conferences, legal dialogues between our judges and judges from around the world are increasingly common.  From the cases observed here, the international views our courts referenced were not contrary to our values.  In fact, our courts aligned with foreign views which brings up the idea that there is an international consensus against certain penal practices.  Foreign law and international law, are still very persuasive laws.

It is time for the United States to re-examine our capital punishment policies with the international community’s views as a persuasive source.  Even though our nation has shifted in the same direction as these abolitionist countries, the United States is in the minority where capital punishment is acceptable.  Our nation joins a small group of countries who are regularly seen as one of the biggest human right violators, such as North Korea, Saudi Arabia, Iraq, China, Iran, and Egypt.  Our capital punishment policy has been nothing but a failed project on criminal deterrence and its continued use is an international embarrassment.  When our officials criticize other nations that have terrible human rights records, those countries deflect our criticisms and point out our archaic retentionist policies.[14]  As a result, it would be in our nation’s best interest to re-examine the death penalty, with the international view as a persuasive source, and to persuade the Arkansas governor to halt the execution of these eight individuals, in light of the evolving standards of decency.

 

[1] http://www.upi.com/Top_News/US/2017/03/03/Death-penalty-opponents-outraged-at-Arkansas-assembly-line-of-executions/4681488566121/

[2] https://www.amnesty.org/en/what-we-do/death-penalty/

[3] http://www.nytimes.com/1995/06/07/world/south-africa-s-supreme-court-abolishes-death-penalty.html

[4] http://www.csc-scc.gc.ca/text/pblct/rht-drt/08-eng.shtml

[5] Thompson v. Oklahoma, 487 U.S. 815, 830 (1988).

[6] Id.

[7] Id.

[8] Id. at 831.

[9] Roper v. Simmons, 543 U.S. 551 (2005).

[10] Id. at 575

[11] Id. at 577.

[12] Atkins v. Virginia, 536 U.S. 304 (2002).

[13] Id. at 316.

[14] www.nytimes.com/2001/06/10/world/veteran-us-envoys-seek-end-to-executions-of-retarded.html.

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Author: Ius Gentium

Ius Gentium is a legal forum for the University of Baltimore School of Law's Center for International and Comparative Law Fellows to write on and discuss international and comparative legal issues.

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