Executing the death penalty: international law influences on United States Supreme Court decision-making in capital punishment cases.

• Author: Murphy, Russell G.

1. INTRODUCTION: THE THEME OF "CHANGE"

   The idea of "change" in public policy is everywhere in the United States today. In significant measure, this is because of the Presidential candidacy of Senator Barrack Obama and his nomination battle with Hillary Clinton. Even the Republican candidate, 71-year-old John McCain, is attempting to recreate himself as an "outsider" and "change" candidate. Unfortunately, this public theme of change has not reached America's continuing practice of state execution of capital defendants. My lecture this evening will explore the legal changes that have taken place in death penalty law and practice in the United States in recent years, indicate how international law has influenced this change, and comment on how world opinion can affect change in the future.

   Richard Dieter, Executive Director of the Death Penalty Information Center (DPIC) in New York City, observed: "capital punishment is unlikely to be undone for any one reason. Like snow on a branch, it is not any one flake that makes the branch break, but rather the collective weight of many flakes accumulating over time." (2)

   I can confidently report that international law and the practices of nations constitute one of the snowflakes, a very, very, large one, which is weighing down the branch of American death penalty law. I hope it will eventually break that branch!

   That is because the death penalty is a fatally flawed form of criminal punishment. Nobel Prize winner Archbishop Desmond Tutu of South Africa put it best when he said:

   The time has come to abolish the death penalty worldwide. The case for abolition becomes more compelling with each passing year. Everywhere experience shows us that executions brutalize [sic] both those directly involved in the process and the society that carries them out. Nowhere has it been shown that the death penalty reduces crime or political violence. In country after country, it is used disproportionately against the poor or against racial or ethnic minorities. It is often used as a tool of political repression. It is imposed and inflicted arbitrarily. It is irrevocable and results inevitably in the execution of people innocent of any crime. It is a violation of fundamental human rights. (3) At least one sitting Justice of the United States Supreme Court, Justice John Paul Stevens, has concluded that the death penalty represents "the pointless and needless extinction of life," produces "only marginal contributions to any discernible social or public purpose," and should be abolished. (4)

2. CAPITAL PUNISHMENT BASIC PRINCIPLES

   In order to understand the influence of international law on the death penalty debate in the United States, one must first have a basic understanding of how death penalty law is made and appreciate the critical role played in that process by the U.S. Supreme Court. The Court will be the primary focus of my lecture.

   In our federalist system, capital punishment laws are the product of legislation. Each of the fifty states, and the U.S. Congress, is free to pass a law imposing a death sentence for the commission of extremely serious crimes (deliberate murder; terrorism; child rape). Presently, thirty-six states and the U.S. Government have such laws on the books. (5)

   Once a defendant is convicted and sentenced to death pursuant to these laws, an elaborate system of appeals takes place. Kennedy v. Louisiana, (6) now pending decision in our Supreme Court, is a good example. Patrick Kennedy, a 43 year old black man, was convicted in a Louisiana state court of raping his eight year old stepdaughter. Under Louisiana law, aggravated rape, defined at the time as sexual relations with a child under the age of twelve, (7) was a capital crime and Kennedy was sentenced to death. He appealed this sentence through state courts and lost. (8) He then appealed to the U.S. Supreme Court arguing that his sentence constituted "cruel and unusual" punishment under the Eighth Amendment to the U.S. Constitution and that, as a result, he could not constitutionally be put to death. (9) The Court accepted the case for review, arguments have been heard, and an opinion is expected at any time. (10)

   This Eighth Amendment constitutional argument is typical of constitutional claims in our system. The Eighth Amendment provides "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (11) American constitutional rights, including those provided in the Eighth Amendment, are not affirmative or positive rights of the kind Europeans are used to experiencing. Rather, these "rights" are really negatives directed at governments. Such rights embody limitations or constraints on exercises of governmental power. They are commands on what a state may not do to its citizens, such as, deprive them of free speech, (12) purposely subject them to unequal treatment based on race, (13) or impose a criminal sentence that is "cruel and unusual." (14)

   When the Supreme Court decides a case like Kennedy it is engaging in "judicial review" of government action to see if the state has gone too far. (15) As operating here, judicial review involves our highest national court, the United States Supreme Court, deciding what the Constitution--the Eighth Amendment--allows or prohibits. Under the "Supremacy Clause" of Article VI of the Constitution, (16) once the Court has ruled, its opinion is "the supreme Law of the Land" and "anything in the ... Laws of any state to the contrary ..." is invalid. (17) In other words, national law (the Constitution, valid acts of Congress, and ratified U.S. treaties) prevails over state law. In the Kennedy case, if the prisoner wins, the child rape death penalty provision of Louisiana law is overridden by the Eighth Amendment (as construed and applied by the Court) and Mr. Kennedy may not be executed.

   Much of the history of capital punishment in America is, therefore, about the process by which a majority of the Court (5 votes out of 9 Justices) decides when it is or is not constitutional for government (State or Federal) to kill one of its citizens. This process has yielded clear but broad rules for measuring when a death penalty law is consistent with the Eighth Amendment.

   Based on the 1972 case of Furman v. Georgia (18) and the Gregg v. Georgia line of cases (19) in 1976, the Supreme Court has, through an evolving series of decisions, set forth the following basic principles:

   Capital punishment is not per se, or in all cases, an unconstitutional "cruel and unusual" punishment. (20) The death penalty is a valid sentence so long as, in each individual case:

   (1) It is not imposed in an "arbitrary and capricious" manner. A death penalty statute must contain clear and precise standards that narrow the range of crimes and criminals eligible for capital punishment to only the "worst of the worst," and prevent discrimination on the basis of race, class, gender, or other impermissible factor; (21) and

   (2) It "advances" a legitimate "penalogical justification" for the death penalty, meaning that it must achieve one of the sentencing goals of our criminal justice system: deterrence or retribution. (Justice Stevens has referred to incapacitation (22) and Justice Kennedy to rehabilitation (23)). (24) A Justice's personal answer to this question--what does the death penalty accomplish in terms of justifications for criminal punishment--can be considered in deciding this issue; (25) and

   (3) As to each crime and criminal, capital punishment is consistent with "evolving standards of decency" recognized by a "maturing society" and respects the "human dignity" said to be at the "core" of the Eighth Amendment. (26) The Amendment requires proportionality-balance--between the crime committed and the sentence of death. (27) This has come to mean that only "the worst of the worst" criminals, the most culpable and blameworthy, can be sentenced to death. The Court must find a "national consensus" in contemporary American society in support of a particular death penalty practice. (28) Whether there is such a consensus is measured, first, by examining "objective" evidence in the form of legislative enactments. (29) Some Justices have also been willing to consider opinion polls and the views of national and international organizations. (30) As with sentencing goals above, individual Justices can--and do--make their own personal judgments about proportionality and excessiveness and what evolving standards of decency tolerate or require. (31)

   Historically, these constitutional principles have generally promoted--facilitated--the enactment and implementation of death penalty laws in the United States. Yet, there is change happening.

3. THE EVIDENCE OF CHANGE

   Based on data from the Death Penalty Information Center as of February 2008, there is some evidence of change in death penalty trends in the United States.

   (1) The number of executions in the United States is steadily declining. In the past three years, executions have dropped from 60 in 2005, to 53 in 2006, to 42 in 2007. Executions peaked in 1999 with 98 death sentences carried out. (32) In 2008, there were 13 executions prior to a moratorium imposed because of Baze v. Reese, (33) a case I will describe later in the lecture.

   (2) The number of death sentences imposed is also down from 153 capital sentences imposed in 2003 to 110 in 2007 (in 2005 the number was 138; in 2006 it was 115). (34) Most executions (86%) and death sentences are imposed in our Southern states (62% of executions took place in Texas in 2007). (35) The current U.S. death row population is over 3,300 (out of a population of over 300 million people). (36)

   (3) States are backing away from capital punishment. New Jersey abolished it in December of 2007; in 2006 and 2007, the New York legislature refused to restore capital punishment after the state's highest court declared it unconstitutional; and several states attempted to pass...