"My Friend Is a Stranger": The Death Penalty and the Global Ius Commune of Human Rights
2003; Texas Law Review Association; Volume: 81; Issue: 4 Linguagem: Inglês
ISSN
1942-857X
Autores Tópico(s)Homicide, Infanticide, and Child Abuse
ResumoMy friend is a stranger, someone I do not know. A stranger far, far away. For his sake my heart is full of disquiet because he is not with me. Because, perhaps, after all he does not exist? Who are you who so fill my heart with your absence? Who fill entire world with your absence?1 I. Introduction: The Foreign Presence in Atkins v. Virginia A stranger is lurking in background of United States Supreme Court's death penalty jurisprudence, a foreigner still not quite present but nevertheless filling heart of law with disquiet. In Atkins v. Virginia, in which Court recently held that execution of mentally retarded criminals violates Eighth Amendment of United States Constitution,2 we get a timid glimpse of stranger through what might otherwise be an unremarkable footnote. In main text of opinion, Court measures existence of a national consensus regarding evolving standards of decency that mark progress of a maturing society.3 Only after reaching a conclusion on basis of legislative developments in United States does Justice Stevens add a long footnote to list [a]dditional evidence providing support to our conclusion that there is a consensus among those who have addressed issue.4 There, almost buried among opinions of medical associations, religious organizations, and general polling data is this single sentence: Moreover, within world community, imposition of death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.5 While seeming to be rather casual on its own, that sentence becomes much more noticeable because of vehement rejoinders it provokes from two dissenters. Both Chief Justice Rehnquist and Justice Scalia go to considerably greater length in condemning any consideration of foreign norms than majority does in acknowledging them, insisting that the viewpoints of other countries simply are not relevant to an assessment of United States standards.6 Their response hardly seems proportionate to majority's bare mention, in very indirect fashion, of existence of an international consensus; it only makes sense to extent that reference to IMAGE FORMULA7IMAGE FORMULA8 global developments is a sign of a larger and more significant presence looming just beyond current reach of U.S. law. There is more at work here than just well-known, but minor, running spat among Justices about relevance of foreign and comparative law to constitutional adjudication in general.7 The dissenters succeeded in highlighting that in its death penalty jurisprudence, U.S. Supreme Court is on threshold of participating more fully in a substantial transnational normative community that could, in principle, have a significant impact on U.S. law.8 Within just two months, Court gave us a hint of potential implications of stranger's presence, when three of Justices dissented from a denial of certiorari in a case challenging Texas's execution of a man for a crime committed while he was still a minor. Justice Stevens called for a reversal of Stanford v. Kentucky9 (in which Court, thirteen years earlier, had upheld constitutionality of such executions), noting that the issue has been subject of further debate and discussion both in this country and in other civilized nations and that there is now an apparent consensus... among States and in international community against execution of a capital sentence imposed on a juvenile offender.10 Justices Ginsburg and Breyer both joined Stevens, and added specifically that Atkins has now made it more tenable to revisit Stanford.11 However, a much more rich and vivid illustration of possibilities of transnational normative dialogue could be found in another significant death penalty case decided at almost same time as Atkins, albeit in a very different court. …
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