International Law Increasingly Influencing How U.S. Handles Death Penalty

(L-R) Law professors Paolo Carozza, David Sloss, and Richard Wilson participated in the panel.

The death penalty is a prime target for efforts to incorporate international law into American constitutional interpretation, said law professor Curtis Bradley in his opening remarks to the Cruel and Unusual Punishment panel at the J.B. Moore Society of International Law's March 20 symposium, "International Law and Practice in American Constitutionalism." Panelists discussed strategies capital punishment opponents are using to encourage limits to the death penalty in the United States, as well as how international law is increasingly affecting how the American legal system treats the issue.

Professor Curt Bradley

The Eighth Amendment bans "cruel and unusual punishment," Bradley explained, but the Supreme Court has left the phrase undefined, while holding that it should be interpreted in light of "evolving standards of decency that mark the progress of a maturing society." Ironically, there's some historical evidence that the Eighth Amendment was written to ensure Congress would not authorize the inhumane punishments used in continental Europe at that time. Now many Europeans and death penalty opponents are objecting to the use of the death penalty in the United States and are working to find ways to allow international law to intervene. Some evidence shows they are making headway: in Atkins v. Virginia (2002), the Court ruled that executing the mentally retarded violates the Eighth Amendment. Those justices in the minority-Rehnquist, Scalia, and Thomas, "complained about the majority's reliance on international practice." In a case currently before the Court, Roper v. Simmons, the Missouri Supreme Court held that executing someone who was under 18 at the time of the crime violates the Eighth Amendment. While the Court upheld such sentences applied to those 16 and older in a 1989 decision, the Missouri court predicted the U.S. Supreme Court would reverse that decision in light of the international consensus against executing juvenile offenders.

In using the death penalty, the United States keeps company with China, the Congo, Iran, Egypt, Belarus, Saudi Arabia, and Singapore, said panelist Richard J. Wilson, a professor at American University's Washington College of Law. Fifteen years ago the issue was not on the radar in U.S. courts, but now death penalty opponents see capital punishment as a wedge issue in applying international law. The best indication of their success is "the level of intensity with which [the strategy] is being attacked," he said. Congressmen in the U.S. House of Representatives have introduced a "constitutional preservation resolution" that proclaims international laws have no legal standing in the United States.

The debate has played out prominently when the United States seeks to extradite criminals who have fled the country. In 1989, the European Court of Human Rights held that extraditing convicted murderer Jens Soering to the United States would violate Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits torture or inhumane punishment. "The wait-the psychological pressure on a defendant, speculating each day on the possibility of death on death row" was considered inhumane by the court. Soering, a former University of Virginia student who has maintained his innocence, is now serving a life sentence in Virginia for stabbing his then-girlfriend's parents.

The underlying problem is "a deep division in perception about what the death penalty means both in the United States and outside the United States," Wilson said.

Foreign governments are increasingly demanding assurances from the United States that the death penalty will not be imposed before they agree to extradite criminals. Foreign nationals make up less than 5 percent of convicts on death row, but international law requires that they be given the opportunity to seek help from a consulate; the American Bar Association now requires counsel to raise this issue as part of competent representation, Wilson said

"Defendants have global mobility; their assets have global mobility," he said. "It puts the U.S. in the center of this debate because we cannot avoid it."

Attacks on U.S. policy have taken two forms: the less successful argument that international laws and treaties (such as the Convention Against Torture and the Convention Against Racial Discrimination) are binding in U.S. courts, and secondly that international laws, even if they're not binding, have interpretive importance in U.S. courts. Some opponents of incorporating international law have argued that international treaties don't apply in domestic courts until they are adopted by domestic legislation. Wilson said that international human rights law can't be completely ignored, and the United States shouldn't ignore the perceptions of the rest of the world.

While U.S. courts tend to dismiss the importance of other nations' laws, foreign courts frequently consult a variety of opinions from abroad, said Notre Dame Law School professor Paolo Carozza.

"It is startling how courts in every part of the world … do use foreign and comparative jurisprudence in discussing the legitimacy of capital punishment in their systems," he said. But "they don't necessarily follow the decisions of the foreign courts." Foreign opinions do not override the positive law of their country, but they use such decisions in "interpretive environments."

Carozza said he felt some sympathy for Justice Scalia's critique of the practice of examining international law because when Supreme Court justices do reference foreign jurisprudence, they often just use it as statistical or cursory evidence. "There is literally no substantive engagement of the reasons why [a decision happened the way it did]. It is raw data."

Despite the "progressive flavor" of referencing foreign sources, pointing out that elite Western countries don't use the death penalty reeks of 19th-century colonialism, the notion that there's only a select group of civilized nations.

It may be informative to examine why a country abolished the death penalty, Carozza said; for example, many countries who wanted to join the EU were coerced into abolishing the death penalty before they were allowed in.

Foreign judges most often look at the opinions of U.S. justices who have addressed law's relation to human dignity, he added. Looking at foreign law in a substantial way would help judges account for why we punish in the way we do, as well as be more open to others' laws, he concluded.

Panelist David Sloss, a St. Louis University School of Law professor, noted a potential conflict between the International Covenant on Civil and Political Rights (ICCPR; signed by the United States in 1977), which states that death may only be imposed for the most serious crimes, and actual practice in U.S. courts. Even Supreme Court decisions have had a mixed message; in Coker v. Georgia (1977) the Court declared it unconstitutional to impose the death penalty for raping an adult woman, but in Tison v. Arizona (1987) declared the death penalty could be imposed on a murder accomplice, which could potentially conflict with the ICCPR standard of "most serious crimes."

The ICCPR also prohibits arbitrary deprivation of life, offering death penalty opponents a potential strategy in U.S. courts. Sloss conducted research into geographic discrepancies in how the death penalty was imposed in Missouri from 1997-2001, in an effort to find out whether capital punishment was imposed inconsistently. Defendants in potential homicide cases in rural counties were four times as likely to get sentenced to death, but Sloss called the figure misleading because of broader discrepancies. Prosecutors in urban areas know juries distrust the legal system and stopped trying to seek a death sentence. There were no death verdicts in urban Jackson County in 207 cases, but in 97 other counties, 542 cases led to 23 death sentences. Even among more rural counties, Sloss noted discrepancies.

"Why are we seeing this kind of disparity across counties?" he asked. "It's driven by prosecutorial discretion. Some of them are very gung ho on capital punishment, some of them are not."

Sloss blamed Missouri law for the problem, noting that it allows murders to be considered deliberate in the time span of the blink of an eye, eliminating the distinction between first- and second-degree murder. Missouri is typical among states for requiring aggravating factors to pursue the death penalty, but the factors are so broad-for example if the crime is committed in a "heinous or depraved manner"-that prosecutors "can throw that on every case they want to." Discretion is equivalent to arbitrariness, Sloss said. "Most serious crimes" really applies to a sub-category of murders, he argued, and his study shows the United States is not complying with either provision of the ICCPR.

Sloss predicted states would continue to apply more limitations to whom the death penalty applies to, but the ICCPR may give the federal government leverage to effect change, if it chooses to use it.

Sandra Babcock: "They're all waiting to see what the ICJ is going to do with Avena."

When people are arrested in a foreign country, they are subject to the Vienna Convention on Consular Relations, which in Article 36 requires the arresting country to inform the defendant of their right to seek help from their consulate, said Sandra Babcock, director of the Mexican Capital Legal Assistance Program. Of the 140 foreign nationals on death row, 56 are Mexican nationals, she noted.

In the mid-1990s a number of high-profile executions of foreign nationals in the United States brought more attention to the issue, in particular because their governments-including Canada, Germany, and Paraguay-strongly objected to the executions, claiming that the defendants weren't notified of their right to seek help from the consulate and that the consulate had not been informed of the arrest and conviction. Paraguayan officials said if they had been notified, they could have been able to persuade their countryman to accept a plea bargain; in Paraguay and Mexico, plea bargaining doesn't exist, and defendants likely wouldn't understand how it could save their lives. Both countries eventually brought suit against the United States for violating the Convention, but were denied cert in the Supreme Court. However, the International Court of Justice reacted more favorably.

In the 1999 LaGrand case, in which Germany sued the United States for executing two German nationals without informing consular officials, the ICJ affirmed the court's power to issue provisional measures requiring a temporary stay of execution. The United States disputed that the Vienna Convention confers rights to detainees rather than only the governments involved, but the ICJ ruled that the rights belonged to individuals as well. The ICJ also ruled that an apology was not a sufficient remedy for a violation of Article 36, Babcock added, and it's still an open question of what should happen if the United States is found in violation of the Convention.

After the LaGrand decision, in cases where a violation of the Convention was alleged, the United States federal government would merely write a letter to clemency officers notifying them of the situation.

"We felt that that was unlikely to have an effect," Babcock said, especially since many Mexicans on death row are imprisoned in Texas, where the Texas Board of Pardons and Paroles does not hold hearings for clemency, and proceedings and standards of review-if there are any-are not open to the public.

"To Mexico, this was an entirely insufficient response to the LaGrand decision," she said. In January 2003, Mexico requested provisional measures on behalf of all Mexican nationals, and the ICJ ruled the United States should take steps to prevent the looming executions of three Mexican nationals, pending the decision of a suit by Mexico against the United States for violating the Convention. The United States has complied, Babcock said, but it's unclear whether ICJ decisions are binding in the United States.

"This issue has never been resolved by the Supreme Court," she said. Unlike a federal court, which can send U.S. marshals to enforce compliance, the ICJ "doesn't have the power to enforce its judgment."

The fact that the states are waiting for a ruling in what is known as the Avena case indicates the growing acknowledgement of international opinion, Babcock suggested. "They're all waiting to see what the ICJ is going to do with Avena."

Although one execution date has been set for May 18, the ICJ will likely release a ruling before then, making for an "extraordinary" delay of a year and a half because of the ICJ decision.

In the Mexico suit, the United States is arguing that complying with LaGrand through the clemency process is adequate. Babcock said she expects the ICJ to resolve whether a clemency review is enough, and clear up the issues raised in LaGrand, a decision that was "too mushy."

Furthermore, if the ICJ says the case against the Mexican nationals should be dismissed because of a Convention violation, the Supreme Court will likely need to decide the effect of ICJ orders within the U.S. legal system. In one case the defendant wasn't even the triggerman in the murder for which he is on death row.

"I have a hard time believing they would not take that case," she said. "It's just going to keep coming up again and again."

Babcock said there are still many violations to the Convention in the United States, but has noted a "marked improvement, particularly on the border."

"Until there is some recognized sanction, I don't think we're going to see full compliance," she said.