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July 13, 2008

The international dogs that did not bark in Kennedy

As we await word on whether Governor Bobby Jindal will keep his word and ensure Louisiana seeks rehearing in the Kennedy child rape case (discussed here), a notable omission in the majority opinion dawned on me.  As everyone surely will recall, when the Supreme Court struck down the death penalty for juve offender in Roper, Justice Kennedy's opinion for the Court devoted numerous pages to international laws and views.  In sharp contrast, the Kennedy opinion says nary a word about international laws and views concerning the death penalty for non-homicide offenses.

This international omission is especially notable given that the Roper opinion suggested that at least some consideration of international laws and views is essential to modern Eighth Amendment analysis: "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.'" Roper, slip op. at 21.  But in Kennedy, the exact same group of five Justices that comprised the Roper majority did not even once mention the laws of other countries or international authorities.

Of course, the lack of international discussion in Kennedy can be easily explained: the majority opinion in Kennedy did not reference international laws and views because they would undercut the Court's declaration that only intentional homicides can be death-eligible crimes.  Indeed, according to this Amnesty International April 2008 review, few countries limit the application of the death penalty in the way that Kennedy now constitutionally commands.  (According to AI, China applies the death penalty to 68 crimes, and Iran and Egypt recently executed persons for the crime of adultery.  India, Malaysia, Singapore are just a few of the other countries in which non-homicide crimes other than treason are death-eligible.)

Consequently, it seems that, after Kennedy, we need to refine our understanding of the Supreme Court's the Eighth Amendment's jurisprudence: apparently "the laws of other countries and to international authorities [are] instructive" when interpreting the Eighth Amendment if and only when these laws and authorities support the result that the Court is trying to justify.  Got it?

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Comments

Doug, the "only when international law supports us" observation is not a new one.

Of course, defenders can always say that with respect to international law (whatever that is), the US will look at it as a floor.

Posted by: federalist | Jul 13, 2008 2:03:32 PM

Perhaps it's the case that Justice Kennedy cannot remember ALL his bad Eighth Amendment jurisprudence when he sits down to write. Keeping track of the growing list of dubious "authority" would be quite a feat for anyone.

I do wish he had remembered it here, however. It would be a delicious irony if the Court's liberal majority (with Kennedy) were to give us another lecture on the Enlightened Wisdom of Foreign Lands in dealing with capital punishment at the same time it neglected to look up what the United States Congress had to say on the subject.

Posted by: Bill Otis | Jul 13, 2008 2:20:29 PM

"Meanwhile, Amnesty International's death penalty review welcomed the wider trend toward global abolition. Two-thirds of the world's countries (135) have now either officially abolished capital punishment or have refrained from using it for at least 10 years."

That implies that 2/3 of the countries do not execute for non-homicide offenses.

Posted by: George | Jul 13, 2008 2:34:21 PM

Are you seriously aligning yourself with the majority of the countries you list?

There are few others as well, of course !!!

Nigel.

Posted by: Dr Nigel Leigh Oldfield | Jul 13, 2008 2:34:52 PM

Doug,

I'm not sure why you seem to think that the mere existence of nations allowing the death penalty for rape or child rape would defeat the Court's reasoning were it to have considered international opinion. The British Law Lords amicus brief points to the dwindling number of nations authorizing the capital punishment for the crime of rape or child rape (28 of 193 recognized nations retain). Futhermore, as Justice considered international law, the Law Lords offer in interpretation of international law that forbids the U.S. from expanding the death penalty. There is no reason to believe that these arguments are inherently unsound and unworthy of credence.

Acting as if Justice Kennedy didn't discuss international opinion because it would have harmed his argument is misleading. More likely, he avoided the discussion because of the unpopularity of referring to international law and opinion in determining U.S. consitutional law.

Posted by: D | Jul 13, 2008 4:09:50 PM

What a ridiculous post, Professor. Yes, let's rush to have our government kill us for crimes like adultery! Let us hold up totally awesome, freedom-loving countries like Iran, Egypt and Singapore as objects of admiration to imitated.

Also, your post is rather innumerate as george & D suggested above. Great job cherry-picking out a few odious regimes that execute individuals for non-homicide crimes while totally overlooking/ignoring the Report's finding that "[t]wo-thirds of the world's countries (135) have now either officially abolished capital punishment or have refrained from using it for at least 10 years."

Posted by: Reader | Jul 13, 2008 4:21:56 PM

Somehow I doubt our host actually bestows in China the status of a liberty role model.

Posted by: George | Jul 13, 2008 7:26:37 PM

Some states really enjoy killing. It is their culture. Take Texas. Those people consider criminals to be heros, and crime is a way of life for Texans. It comes as no surprise that their state writes a lot of briefs arguing that it should be allowed to kill a lot of people. It is their culture.

Chinese culture likes killing, too.

Posted by: S.cotus | Jul 13, 2008 7:41:23 PM

S.cotus:

"[C]rime is a way of life for Texans."

Do you think you might be painting with a bit of a broad brush there?

Posted by: Bill Otis | Jul 13, 2008 10:24:51 PM

"Chinese culture likes killing, too."

Ah, so that's what explains the massive Chinese-American homicide rate.

Posted by: NYC J.D. | Jul 13, 2008 10:42:46 PM

I think many of you are (perhaps intentionally) missing Prof. Berman's point. He is not "aligning [him]self with the majority of the countries [he] list[s]" or "rush[ing] to have our government kill us for crimes like adultery." He is simply asking why does the Court consider the practices of other countries when they counsel against the death penalty, but ignore their practices when they suggest that the death penalty is permissible.

And I doubt that, as D suggests, Justice Kennedy "avoided the discussion because of the unpopularity of referring to international law and opinion in determining U.S. consitutional [sic] law." If the Court had intended to discard the use of international authorities in its Eighth Amendment jurisprudence, then presumably it would have said so.

Posted by: Anon11 | Jul 14, 2008 7:42:31 AM

Anon,

I do not think the Court intended to discard the use of international authorities in its Eighth Amendment jurisprudence. However, I think that in an already controversial decision, Justice Kennedy avoided an additional controversial discussion that he did not feel was necessary to the decision.

Do you think he simply forgot?

Posted by: D | Jul 14, 2008 9:20:58 AM

"He is simply asking why does the Court consider the practices of other countries when they counsel against the death penalty, but ignore their practices when they suggest that the death penalty is permissible."

But why does anyone finding this even mildly surprising? After all, the court does this all the time with domestic law. Justice Homes put it best: the merit of the common law is that it decides the case first and provides the justification later. Consistency is not a hobgoblin that has ever nor would ever trouble the mind of the SC. Their minds are not little. ;-)

Posted by: Daniel | Jul 14, 2008 12:42:15 PM

If the most persuasive argument you can come up with is that some Islamic countries still stone women who commit adultry, I think that is a sure sign of a law professor who is missing tossing out hypotheticals to students during the summer vacation.

For one thing, in the U.S. any such law prohibiting adultry is probably unconstitutional violating the freedom of free association from the First Amendment and the general right of privacy from the Ninth Amendment. It is hard to imagine that state laws barring adultry can survive a challenge following Lawrence v. Texas (but of course, I understand a few states like Virginia still have it on the books). Such a penalty of death for adultry would be so disportionate to the crime (which in the states where it still exists is pretty low on the crime totem pole - this isn't even a case where like sodomy it was a serious felony).

At the same time, while Eurocentric in the extreme, what non-European or predominately European influenced countries like Canada, Austrailia, New Zealand and parts of Latin America do has been pretty much irrelevent. What Asian and Islamic and African counties countries do has generally been ignored. For better or worse, such looks at international law have generally been limited to countries with a more similar cultural background to ours (which is to say predominately Christian and White). Given that list of countries, only India comes close to being a democratic country - and the largest religious groups are Hindu (which has a much different concept of life than the Western World) and Islam. Using the Eurocentric world view (and much of international law and international norms comes from the Eurocentric view) execution for non-murder, non-terrorism, espinage, treason type crimes is not supported.

And really, Professor Berman - you're arguing that the US should follow Iran, China, or Singapore's example when it comes to crime and punishment???

Posted by: Zack | Jul 14, 2008 2:43:56 PM

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Posted by: blafband | Jan 2, 2009 2:57:17 PM

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