"Like snow (falling) on a branch ...": international law influences on death penalty decisions and debates in the United States.

• Author: Murphy, Russell G.

"[C]apital punishment is unlikely to be undone for any one reason. Like snow on a branch, it is not any single flake that makes the branch break, but rather the collective weight of many flakes accumulating over time." (1)

INTRODUCTION

Since the United States Supreme Court's 2002 decision in Atkins v. Virginia (2) prohibiting the execution of severely mentally retarded individuals, significant changes have occurred in American capital punishment law. Important restrictions have been imposed on the types of crimes and criminals that are subject to the death penalty. At the same time, the Court has refused to give effect to the judgment of an international human rights tribunal ordering the United States to review death sentences of Mexican nationals because of international law violations, (3) and has declined to invalidate the primary method, the three drug lethal "cocktail," used to execute prisoners. (4) Yet, in Kennedy v. Louisiana, (5) the Court narrowly held that the death penalty could not be constitutionally extended to nonhomicide child rape. This Article explores how these decisions have been significantly, but unevenly, influenced by international law, foreign court decisions and global political actions, and the effect of Supreme Court case law on the death penalty debate in the United States.

Part I of this Article provides a description of the basic Eighth Amendment principles that govern the constitutionality of capital punishment law. Parts II and III set forth foundational information on death penalty practices in the United States and the global community, and identify specific provisions of international law that prohibit or restrict capital punishment. Part IV describes the public debate among Justices of the Court over the propriety of reliance on international law in U.S. constitutional decision-making. Part V provides examples of international law and foreign court decisions that have directly influenced opinions of U.S. Supreme Court Justices in death penalty cases. The Article concludes with commentary on ways in which international law can continue to impact American capital punishment policies and practices.

PART I. THE REQUIREMENTS OF THE EIGHTH AMENDMENT

Thirty-five states and the federal government have legislatively enacted capital punishment laws. (6) These laws are subject to judicial review under the Eighth Amendment to the United States Constitution, which provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (7)

Starting with Furman v. Georgia (8) and the Gregg v. Georgia (9) line of cases, the United States Supreme Court established clear, if not somewhat broad and general, rules for determining when a death penalty law is valid under the Eighth Amendment. Initially, capital punishment is not per se unconstitutional. (10) The death penalty is a constitutional criminal sentence so long as:

1. It is not imposed in an arbitrary and capricious manner. (11) Death penalty statues 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, gender, sexual orientation, or other impermissible factor. (12)

2. It "advances" a legitimate "penalogical justification," by achieving one of the sentencing goals of the U.S. criminal justice system: retribution, deterrence, incapacitation, or rehabilitation. (13) A Supreme Court Justice's personal answer to this question--what does the death penalty accomplish in terms of justifications for criminal punishment--may be considered in deciding this issue. (14)

3. It is consistent with the "evolving standards of decency" recognized by a "maturing society" and respects the "human dignity" that is at the core of the Eighth Amendment. (15) The Amendment requires proportionality between the crime committed and the sentence of death. As noted above, only the "worst of the worst" criminals, the most culpable and blameworthy, can be sentenced to death. (16) A court must find a "national consensus" in contemporary American society in support of a particular death penalty practice. (17) Whether there is such a consensus is measured, first, by examining "objective" or "democratic" evidence of public understandings in the form of legislative enactments. (18) A court will look at the number of states (or the federal government) following a challenged practice and the "trends" in the United States. (19) Some Justices have also been willing to consider opinion polls and the views of national and international organizations. (20) As with sentencing goals, individual Justices can make their own personal judgments about what evolving standards of decency tolerate or require. (21)

Until recently, these constitutional principles had been applied in a way that led to a complex, multi-layered, highly technical body of substantive and procedural law which has both promoted imposition of the death penalty and made it extremely difficult to execute a death row prisoner. Yet, prior to the Court's 2007-2008 Term, perceptible changes had occurred, nationally and internationally, that suggested a retreat from the aggressive use of capital punishment. (22)

PART II. A NATIONAL TREND AGAINST THE DEATH PENALTY?

The Court's three most important recent substantive death penalty opinions, Kennedy v. Louisiana, (23) Roper v. Simmons, (24) and Atkins v. Virginia (25) strongly emphasized trends in capital punishment practices applying "evolving standards of decency" under the Eighth Amendment. Two things were clear about such trends at the mid-point of 2008. American death penalty policies are continually subjected to intense, sustained, and widespread criticism. (26) And, reliance on capital punishment as the ultimate criminal sanction has steadily declined during the last decade. (27) These realities led Justice John Paul Stevens to conclude that the death penalty represents "the pointless and needless extinction of life," produces "only marginal contributions to any discernible social or public purposes," and should be abandoned by state and federal governments. (28) Justice Kennedy matched the power of these words in another opinion observing that, "[w]hen the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint." (29)

Basic criticisms of state execution in the United States are easily catalogued. There is still no generally accepted evidence that the death penalty deters murder or other extremely violent crime. (30) Decision-making in capital cases is unavoidably arbitrary, from the initial prosecutorial choice to seek the death penalty, to judge and jury sentencing. (31) Racial and ethnic discrimination permeate the system. (32) The catharsis of retribution is widely rejected. (33) Decades often pass before an execution takes place (34) and the brutalization it represents perpetuates the pain caused by the original acts of the executed prisoner. (35) Victims' families, individually and through organizations, vehemently deny the "closure" that execution is presumed to achieve. (36) Life in prison without parole accomplishes the same incapacitation as capital punishment. (37) Prosecuting a death penalty case is vastly more expensive than bringing a non-capital charge. (38) Overlaying, and probably overshadowing, these flaws in the system is the profound presence of innocence. A steady stream of exonerations of death row inmates has obliterated the illusion of certainty of guilt that most Americans insist must exist to justify capital punishment. (39)

Perhaps because of these many problems, data from the Death Penalty Information Center suggests a retreat from the death penalty over the past decade that seems to accelerate each year. Both numbers of executions and death sentences imposed in the United States have steadily declined. In 1999 executions peaked at 98. (40) Between 2005 and 2007, executions totaled 60, 53, and 42 respectively. (41) Prior to the 2008 moratorium on executions imposed by the U.S. Supreme Court during the pendency of Baze v. Reese and a decision on the "lethal cocktail" method of execution, 13 death sentences were carried out. (42) Since the Court's approval of that method in April, 2008, 9 additional executions were carried out as of mid-July, 2008. (43)

A similar pattern is seen in numbers of death sentences imposed. For the three years coveting 2005 through 2007, these sentences fell from 138 to 121 to 115. (44) Preliminary figures for 2008 have further decreased to 111. (45) The current death row population still remains high at approximately 3300. (46) Death sentencing and execution continue to be heavily concentrated in the Southern parts of the United States. Texas dominates these statistics with over 60% of all executions in 2007 occurring in that state. (47)

Many states are backing away from capital punishment. Most compelling is the State of New Jersey's legislative abolishment of the death penalty in 2007. (48) This followed New York's refusal, in 2005 and 2006, to restore capital punishment in the state after procedural provisions of its law were struck down by the New York Court of Appeals on state constitutional grounds. (49) Abolitionist efforts in several states made progress at the legislature level but did not result in signed laws. (50) Numerous states have formed commissions to study death practices in those states with a view towards restriction or repeal. (51) These trends are counterbalanced by the relatively aggressive use of the death penalty by the United States Government, especially in the area of terrorism. (52)

Public opinion is exceedingly important in determining the direction of death penalty law in America. It is often said that Justices of the Supreme Court read the newspapers--and opinion polls--just like every...