{"id":50206,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/act-locally-think-globally-part-two.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"act-locally-think-globally-part-two","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/act-locally-think-globally-part-two.html","title":{"rendered":"Act Locally, Think Globally, Part Two"},"content":{"rendered":"\n
\n \n
\n
\n \n \n \n \n \n\n \n \n
<\/a><\/td>\n

ACT LOCALLY, THINK GLOBALLY, PART TWO: Why Evolving International Standards May Have Rendered the Death Penalty Unconstitutional
<\/h1><\/td>\n <\/tr>\n

By AKHIL REED AMAR<\/h2><\/a><\/td>\n <\/tr>\n

Wednesday, Aug. 08, 2001<\/td>\n\n <\/tr>\n <\/table>\n

This column is Part Two of a two-part series by Yale Law professor and author, \nand FindLaw guest columnist, Akhil Reed Amar on constitutional issues raised by \nthe trial of Timothy McVeigh. Part \nOne<\/a>, which appeared earlier on this site, argues that transferring venue for \nMcVeigh’s trial from Oklahoma to Colorado was unconstitutional. \u0097 Ed.<\/i><\/p>\n

As debates over the death penalty once again heat up, basic constitutional \nquestions are resurfacing: “Cruel” according to whom? “Unusual” by what standard? \nTo what extent should states and localities be bound by emerging national norms? \nIndeed, to what extent should states, localities, and the federal government be \nbound by emerging international<\/i> norms?<\/p>\n

Our Constitution’s text and history suggest that international views on the \ndeath penalty might perhaps be relevant in construing the words “cruel and unusual.” \nGiven that legal trends among the fifty states can inform evolving Eighth Amendment \nstandards of decency, why aren’t emerging international trends among advanced \ndemocracies abroad likewise informative?<\/p>\n

Why the Capital Punishment Debate Has Intensified<\/b><\/p>\ntechnology has produced a parade of death row inmates who are incontrovertibly \ninnocent. Journalists and politicians have responded with renewed attention to \nsome of the biggest problems in the criminal justice system: often inadequate \ndefense lawyering, occasionally sloppy forensics, too frequent mistakes in eyewitness \nidentifications, and so on.\n

In addition, some governors who previously supported capital punishment are \nnow calling for a halt, at least temporarily. General issues of racial profiling \nintertwine with specific concerns about the racial composition of state and federal \ndeath rows.<\/p>\n

And, of course, the federal government is now back in the death business, with \ntwo executions (including Timothy McVeigh’s) in the last two months after a moratorium \nof almost four decades.<\/p>\n

Europe’s Reaction to U.S. Executions \u0097 and Why We Should Listen<\/b><\/p>\n

This last development has had momentous implications abroad. Modern European \ngovernments have foresworn the death penalty. Indeed, no country that practices \ncapital punishment may join the European Union. In this rule\u0097and indeed, \nin the very idea of a European Union\u0097we see a new post-Cold War European \nconsciousness emerging, defining itself in part in contradistinction to all things \nAmerican. \n<\/p>

For years, American diplomats abroad could explain away capital punishment \nas a quirk of American federalism: states make this decision, so please don’t \nblame Congress or the President. But with the high visibility federal execution \nof Timothy McVeigh coinciding with President Bush’s first visit to Europe, Europeans \nare increasingly challenging Americans on the issue and claiming the moral high \nground.<\/p>\n<\/span>\n\n \n \n
<\/td>\n\"[Europe<\/span><\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/table>\n\n

\n\nThe fact that President Bush rode into office directly from the governorship \nof Texas, a state notorious for its commitment to capital punishment, has only \nserved to heighten European disdain for America on this issue.<\/p>\n

Some Americans may be tempted to sneer back: “America has a more distinguished \ntradition of democracy and freedom than most of Europe. And if hadn’t been for \nthe Yanks’ winning two hot world wars and one cold one, there wouldn’t even be \nan EU to dis us. The impudence of the Germans! The arrogance of the French!”<\/p>\n

<\/p>\n

But if in some sense modern Europe is America’s child, America should remember \nthat at our Founding, we were Europe’s child. Our Framers drew inspiration from \nthe European enlightenment, and our Declaration of Independence appealed to a \nglobal audience: Out of “a decent Respect to the Opinions of Mankind . . . let \nFacts be submitted to a candid World.”<\/p>\n

In this light, let’s reconsider the Eighth Amendment’s ban on “cruel and unusual \npunishments.” At the Founding, the death penalty was common in America and throughout \nEurope. Death for ordinary felonies was not an “unusual” punishment in 1789. But \nthe matter is far different today.<\/p>\n

Even though America has maintained widespread use of the death penalty, most \nother civilized democracies have repudiated it. In this sense, the regular recourse \nto capital punishment in America is indeed “unusual” today in a way that was not \ntrue in 1789\u0097or even in 1989, prior to the rise of a new democratic Europe \nand the emergence of its strong anti-death consensus.<\/p>\n

If a guiding idea underlying the American experiment and the American Constitution \nis to be a light unto the world, a city on a hill, can Americans ignore our global \nstanding, or allow our criminal justice practices to fall far below those of our \nsister democracies?<\/p>\n

No stretching of constitutional language need be done here\u0097the word “unusual” \nitself seems to require attention to the way standards of decency evolve over \ntime. Put another way, it invites comparisons and endows them with legal force.<\/p>\n

Thus, when a state practice is challenged as “cruel and unusual,” judges often \nlook to the practices of other states in the Union. As these practices evolve, \na state policy that might have been constitutional at a given time in history \ncan become unconstitutional\u0097because it is much more unusual in sister states\u0097at \na later time.<\/p>\n

In short, a strong consensus in most States to eliminate or qualify a given \npunishment may render the imposition of that punishment in outlier States unconstitutional.<\/p>\n

The Comparative Eighth Amendment in McCarver<\/i><\/b><\/p>\n

This type of comparison may come to the fore in a case the Supreme Court has \nagreed to hear next term, McCarver v. North Carolina<\/i>. McCarver<\/i> will \ndecide whether states may continue to impose the death penalty on convicts with \nmoderate mental retardation. (That is, persons who are able to tell right from \nwrong\u0097and thus are properly held criminally responsible for their misdeeds\u0097but \nwho nevertheless have IQs well below normal.)<\/p>\n

In 1989, the Supreme Court upheld this practice, in the case of Penry \nv. Lynaugh<\/i><\/a>. But at that time, most states allowed death in this situation. \nIn the intervening years, the tide has turned.<\/p>\nIn recent years, more than a dozen states have explicitly repudiated this practice, \nand no new states have embraced it. Moreover, in many of the states that formally \nallow the practice, no retarded person has recently been put to death.\n

Taken together, these facts mean that capital punishment in cases of moderate \nretardation is now more “unusual” than it once was. Accordingly, the Supreme Court \nnext term may well rely on this evolving trend to proclaim the practice unconstitutional.<\/p>\n

Why International Comparisons Matter, Too<\/b><\/p>\n

This approach to the Eighth Amendment raises an obvious question: If American \njudges may properly canvass the evolving principles and practices of democratic \nstates on this side of the North Atlantic, why shouldn’t they also consider the \nevolving norms of other advanced democracies? When regressive States lag, the \nConstitution brings them up to speed; shouldn’t judges also be concerned when \nAmerica as a whole lags behind the civilized world?<\/p>\n

Whether or not courts use international standards to inform Eighth Amendment \ndecisionmaking, surely nothing prevents American politicians and citizens from \ndirectly engaging our friends in Europe. In such conversations, both sides might \nbegin to find common ground.<\/p>\n

Consider, for example, the recent execution of Timothy McVeigh. Polls indicate \nthat even many Americans generally opposed to capital punishment thought McVeigh \ndeserved to die. There was no real doubt about his guilt; no gross procedural \nunfairness or shabby lawyering; no complicating issue of race or poverty; no mental \nretardation; no abusive childhood. Indeed, the man seemed an unrepentant moral \nmonster. His was no fleeting crime of passion but a savage slaughter of innocents, \na cowardly war against a peaceful people.<\/p>\n

Seen this way, McVeigh appears as a kind of Hitler, though McVeigh wreaked \nhis nazi genocide on an infinitely smaller scale. And, on this view, McVeigh’s \ncase resonates not so much with Europe’s current anti-death penalty stance, but \nwith its earlier stance that the death penalty is warranted under particularly \nhorrific circumstances.<\/p>\n

After all, modern ideas of universal human rights\u0097the very ideas modern \nEuropeans are now hurling against America\u0097took root in the modern soil of \nNuremberg, where various Nazis were indeed tried and put to death by a court of \nlaw representing democracies on both sides of the Atlantic.<\/p>\n

Perhaps, then, some Europeans might allow that in a truly extreme case like \nMcVeigh’s, capital punishment is more European and more modern than they first \nthought. And some Americans might admit, for their part, that for anything less \nthan genocidal mass murder, the death penalty is now highly “unusual” among the \nworld’s great democracies, and thus should be troubling in the nation that aspires \nto be the world’s greatest democracy. <\/p>\n<\/span> \n

\n\n\n<\/a>\nAkhil Reed Amar teaches Constitutional Law at Yale Law School and is the author of The Bill of Rights: Creation and Reconstruction<\/u> (1998).\n\n\n

\n\n<\/p>\n <\/div>

\n \n Was this helpful?<\/span>\n \n Yes<\/span>\n \n \n \n <\/path>\n <\/g>\n \n \n <\/rect>\n <\/clipPath>\n <\/defs>\n <\/svg>\n <\/i>\n <\/button>\n \n No<\/span>\n \n \n \n \n <\/g>\n \n \n \n <\/clipPath>\n <\/defs>\n <\/svg>\n <\/i>\n <\/button>\n <\/div>\n <\/span>\n