The Death Penalty: Analyzing Foreign Law within American Jurisprudence


Within the American judicial system, jurists ground their arguments primarily in American legal doctrine, supported by evidence from within the nation’s borders. Despite this, many believe that foreign law—legislation enacted and judgements rendered against capital punishment by nations comparable to the United States—should be considered a legitimate body of evidence to be utilized within jurists’ arguments and rulings. However, while substantial arguments exist in both support and opposition to the use of foreign law within American jurisprudence, jurists must first reach legitimate and standardized criteria under which the credibility and utility of such foreign opinions would be considered in orderto determine the scope of international law in the American judiciary.

In the 2002 case Atkins v. Virginia, the Supreme Court ruled 6-3 that the execution of intellectually disabled persons violates the Eighth Amendment bar on “cruel and unusual punishments.” With respect to Eighth Amendment issues, the Supreme Court traditionally looks to whether or not there exist “evolving standards of decency that mark the progress of a maturing society”[1] that would justify an expansion of Eighth Amendment rights—a principle laid out by Chief Justice Earl Warren in 1958. In Atkins, justices, varyingly, considered indicators such as the number of states that had prohibited the death penalty for the intellectually disabled, particular legislation that had been enacted, popular opinion polls, recent judgements rendered by juries, and “the views of professional and religious organizations.”[2] However, the court’s majority opinion, authored by Justice John Paul Stevens, went a step further, citing an amicus brief written by the European Union, writing, “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved… Although these factors are by no means dispositive, their consistency with the legislative evidence lends further support to our conclusion that there is a consensus among those who have addressed the issue.”[3] As he makes clear, while the inclusion of foreign law by no means functions as legal precedent, Justice Stevens nevertheless refers to such international opinions as a means of discerning such “evolving standards of decency,”[4] akin to any of the other individual tests referenced by the court that look to evidence from within the United States. By utilizing an opinion rendered by the European Union, Justice Stevens clearly places the United States’ resistance to addressing fundamental concerns with capital punishment in contrast with what he believes to be the evolving norm of the global society. However, the court’s minority was unassuaged. Chief Justice William Rehnquist, writing in dissent, argued, “I fail to see, however, how the views of other countries regarding the punishment of their citizens provide any support for the Court's ultimate determination.”[5]

Opponents to the influence of foreign law cite the belief that the United States stands uniquely removed from the rest of the world, especially in terms of self-governance. For those who outwardly criticize the practice of citing foreign law, their concerns are rooted, first and foremost, in the continued view of the United States as an isolated and independent legal system. Chief Justice Rehnquist’s words echo those of his staunchly conservative ally, Justice Antonin Scalia. In his 1988 dissent in Thompson v. Oklahoma, which deemed the execution of an individual under the age of sixteen to be unconstitutional, Scalia wrote, “[w]e must never forget that it is a Constitution for the United States of America that we are expounding. The practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely an historical accident, but rather so ‘implicit in the concept of ordered liberty’ that it occupies a place not merely in our mores but, text permitting, in our Constitution as well.”[6] Certainly, Justice Scalia explains, a practice that is so wide-spread among and rooted in the history of the world’s democracies (or, one may extrapolate, countries comparable to the United States by various standards) may necessitate cooperation between nations when the legality or morality of such a practice comes into question. However, argues Justice Scalia, with regard to the issue of capital punishment at least, the history, opinions, arguments, evidence, and consensuses are all far too ambiguous to warrant international legal dependency.

Justice Scalia, in his dissent from the 2005 case Roper v. Simmons, which ruled 5-4 to ban the execution of minors, went one step further in criticizing the majority’s use of foreign law in their opinion. Justice Scalia wrote, “to invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision making but sophistry.”[7] Justice Scalia’s views in Roper reflect the equally-prevalent view that foreign evidence, when utilized, is somewhat ‘cherry-picked’.

However, Justice Stevens’s method is not historically out of place. Foreign law has, throughout the history of the nation, repeatedly found its way into both majority opinions and dissents issued by the Supreme Court. On occasion, foreign law has even been expounded within landmark cases before the court. Perhaps, most notably, the majority opinion in the cases Dred Scott v. Sandford in 1857 and Roe v. Wade in 1973 rooted portions of their arguments in English and Roman law, utilizing the same means in order to reach drastically different ends.[8][9]

The founders themselves relied on foreign law not only as a framework for our founding document, but went so far as to encourage the continued reliance on foreign law. Alexander Hamilton and James Madison, in Federalist 63, wrote, “[a]n attention to the judgment of other nations is important for every government," explaining, "in doubtful cases, particularly where the national councils may be warped by strong passion or momentary interest, the presumed or known opinion of the impartial world may be the best guide that can be followed.”[10] However, opponents’ rebuttals are two-fold. First, some argue that the judiciary—as opposed to the other branches—should be of an order removed from the influence of the outside world, just as judges are presumably removed from the systems of politics and democratic election. Second, staunch opposition to the consideration of foreign law can often be found among the group of judicial conservatives known as “originalists,” who believe that Hamilton and Madison’s writing supports their already-held belief that foreign law holds substantial merit so long as it is limited to the foreign law present at the original writing of the Constitution.

While proponents of foreign law argue that one must look toward countries of similar composition and under similar circumstances as the United States, even this standard is markedly ambiguous. In the 1999 case Knight v. Florida, the plaintiff petitioned the Supreme Court to address whether or not the Eighth Amendment prohibits the execution of individuals who have spent close to twenty years on death row. In his dissent from the denial of certiorari, Justice Stephen Breyer cites cases from Jamaica, India, and Zimbabwe in support of his opinion that such an extended period prior to execution is unconstitutional.[11] While similarities can certainly be drawn between these nations and the United States, Justice Breyer’s examples certainly reflect Justice Scalia’s concern over ‘handpicked’ evidence.

Ultimately, however, even the court’s most vocal critics of foreign influence falter in their argument. Writing for the unanimous court in the 1997 case Washington v. Glucksberg, which ruled that Washington state’s ban on physician-assisted suicide was not unconstitutional, Chief Justice Rehnquist begins his argument against assisted suicide with a prioritization of the nation’s own “history, legal traditions, and practices.” However, he is quick to include a case study of the Netherlands’ experience with the legalization of assisted suicide, and cites a case by the Supreme Court of Canada, Rodriguez v. British Columbia, that espouses the belief that a prohibition of assisted suicide “is the norm among western democracies,”[12] and which references legislation from eight European countries.[13] The court’s four more liberal justices concurred in judgement, but each authored separate opinions. While the merits of these critics are certainly grounded in long-held beliefs of nationalism and judicial isolation, it appears that no one on the court, certainly not in 1997, is truly exempt from the inclination to cite foreign law when it coincides with one’s argument. Ultimately, whatever the case, whatever the facts, the precedent, or the apparent parallels in foreign law, American jurists must be honest with themselves, about their motivations, their methods, and the repercussions of their actions. Only then, once fundamental and explicit criteria and consensuses have been established—reminiscent of the very framework laid out by our founders—can the consideration of foreign opinion truly be considered.

[1] Trop v. Dulles, 356 U.S. 86, 101 (1958).

[2] Atkins v. Virginia, 536 U.S. 304 (2002).

[3] Ibid.

[4] Trop v. Dulles, 356 U.S. 86, 101 (1958).

[5] Ibid.

[6] Thompson v. Oklahoma, 487 U.S. 815 (1988).

[7] Roper v. Simmons, 543 U.S. 551 (2005).

[8] Roe v. Wade, 410 U.S. 113 (1973).

[9] Dred Scott v. Sandford, 60 U.S. 393 (1856).

[10] The Federalist No. 63 (J. Madison) (A. Hamilton).

[11] 528 U.S. 990, 997-98 (1999) (Breyer, J., dissenting from the denial of certiorari).

[12] Rodriguez v. British Columbia (Attorney General), 107 D. L. R. (4th) 342, 404 (Can. 1993).

[13] Washington v. Glucksberg, 521 U.S. 702 (1997).