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Germany, the Death Penalty, and the U.S. Constitution:
Charles Lane has an interesting piece in today's Washington Post about the history of the death penalty in Germany. According to Lane, the German law abolishing the death penalty in 1949 was passed at a time when 77% of German citizens (according to one poll) were in favor of the death penalty for ordinary crimes. The law passed not out of a conviction that the death penalty was inhumane, but rather as an effort to prevent the execution of Nazi leaders by the American and British postwar authorities. According to Lane:
[The 1949 law] was in fact the brainchild of a right-wing politician who sympathized with convicted Nazi war criminals — and sought to prevent their execution by British and American occupation authorities. Far from intending to repudiate the barbarism of Hitler, the author of [the German anti-death penalty law] wanted to make a statement about the supposed excesses of Allied victors' justice.
  Lane's piece is a bit odd in that it overlooks public opinion in Germany today, which I understand is in fact strongly opposed to capital punishment. So path-dependency problems aside, it seems highly likely that German law would have abolished the death penalty eventually even if it hadn't done so in 1949.

  Still, I think Lane's story raises some interesting questions for those who believe that foreign law and practice is relevant to the proper interpretation of the United States Constitution. As far as I know — and please correct me if I'm wrong — those in favor of considering foreign law and practice generally do not advocate looking at the reason or circumstance of the forces that led to the foreign law's adoption. What matters is that the law is on the books, not how or why it got there. If I'm right about that, does that mean that the efforts by pro-Nazi sympathizers in Germany to stop U.S. authorities from executing Nazi war criminals could in theory shape the meaning of the U.S. Constitution?

  It's an interesting question, I think, because my sense is that proponents of citing or relying on foreign law in U.S. constitutional decisionmaking usually assume that foreign law reflects a resolution of the same issues the Supreme Court is confronting. Foreign law is a relevant testing ground because the issues and tensions are assumed to be similar. But what if foreign law is passed for a quite different reason, such as seems to be the case with Germany and the death penalty? Is it equally relevant? Less relevant? Is the U.S. Supreme Court supposed to look to the history of each country's law and determine whether it was enacted for reasons similar to those explored in the constitutional arguments before the Court before considering it as relevant or even just citing it? Or is the Court supposed to look not to why the law was passed, but rather to recent opinion polls in those foreign countries that might suggest why people in those foreign countries still support the law, or even if they do?

  I'd be very interested to hear from proponents of citing or relying on foreign law about the answers to these questions. I have enabled comments. As always, civil and respectful comments only.
Troy Hinrichs:
It's mostly irrelevant. Who cares how an anti-capital punishment law is on the books so long as it's there and it currently reads in a non "pro-Nazi" way? On the other hand, if I'm pro-death penalty, the reasoning behind this law's genesis perhaps reinforces why I'm against abolishing capital punishment.

Another pertinent question: Is the foreign law being interpreted witin a U.S. Constitutional framework -- meaning -- "we like the wording of this law and apply it thusly..."
For example, noting that a particular correctional practice has been outlawed in Spain and that practice now falls within SCOTUS' definition of "cruel and unusual punishment".
Or the opposite -- are we defining "cruel and unusual punishment" within the standards of foreign courts? Is there even a difference?
I don't want to limit any judge from seeking wisdom wherever it may be found -- and it can be found in the darndest places, but I also don't want to encourage judges to regularly fish for truth in the waters of Zimbabwe's (or anyone else's) high court.

If our Constitution and the laws and ideas emanating forthwith are insufficient guidance to judges, then we might as well scrap the whole thing and begin anew.
6.4.2005 7:07pm
PG (mail) (www):
I've heard that Japan, the other country we re-made in the wake of WWII, is quite pro-death penalty (82% in one poll) and uses it in a rather secretive fashion, often refusing to release names or execution dates. Even the prisoners themselves don't know when they'll be executed, a practice Amnesty call inhumane (though it's an open question whether it's more cruel for someone to anticipate the date or to have it come unawares). It's interesting to speculate on why Japan differed from Germany.

Perhaps there weren't enough supporters of Japan's defeated military regime remaining in power to lobby for mercy for them; or the sentiment did not exist among many Japanese; or the Allied powers did not execute Japan's former leaders, whether because they'd committed suicide or because they were not considered to have acted criminally (certainly not on the scale of the Nazis).
6.4.2005 7:45pm
Cecilius:
I think the original reasons for enacting foreign law are relevant in some way, but they seem to take a back seat to two larger issues. The first is brought out by the fact that so many Germans oppose the death penalty today. While this legitimizes the continued abolition of the death penalty, the only reason it does so is that a strong majority of Germans (according to an opinion poll, I assume) support it now. So, citing to foreign law creates an awfully perverse contradiction - the U.S. Supreme Court strikes down a popularly enacted and popularly supported (according to opinion polls) federal or state law because the law lacks popular support (again, according to an easily manipulated opinion poll) by those who are not governed/ protected by the U.S. Constitution. In a way, German popular opinion out-votes American popular opinion on American laws. Of course, the Constitution serves an anti-majoritarian function, however, proponents of citing to foreign law simply substitute the majority view of non-Americans in order to displace the majority view of actual Americans. And somehow, all of this is mandated by the Constitution?!

The idea of voting leads me to the second point. Many European countries are not representative democracies in the sense that the United States and its constituent States are. Although some of the more obscure and technical laws may pass without popular support (largely due to apathy or lack of media coverage - rarely in the face of popular support), here in the U.S., bigtime moral laws, such as gay marriage, the death penalty, abortion, and the like garner heated debate and usually a clear majority that is obeyed. It is my understanding that this is not the case in Canada and the European countries that proponents of citing foreign law like to consult. There, the structure of government frequently enables politicians and their parties to enact laws that contradict public support. So, when the Supreme Court cites to the law of other countries as dispositive of the morals and sensibilities of other countries, this is a false assumption. Sometimes it is true, but sometimes it was enacted solely upon the morals and values of the insular political minority.
6.4.2005 7:46pm
Pete Guither (mail) (www):
Maybe I'm different than other proponents because I don't see it so much about drawing upon foreign law to define our constitution. It may be a fine distinction, but I see it rather as using the global community to assist in defining words used in the constitution that have a changeable meaning. Foreign law should not be used (and is not as far as I know) to determine whether "cruel and unusual punishment" should be allowed. That's clear in our constitution. However, the definition of those words is not only subject to interpretation, but shifting meaning. What is cruel today may not have been in the 18th century and vice versa. (And definitions can be very complex things.) It is therefore instructive to look at analogous population groups that have struggled with the definition (whether it's the states or other countries) as a part of the process in clarifying a contemporary definition. To me, its not as much a matter of the judicial background of the referenced foreign law, but rather the degree to which a population's experience can be instructive.
6.4.2005 9:23pm
Goober (mail):
Interesting, but I'm not sure I accept the premise. Foreign law is relevant---and should be---whenever constitutional doctrine simply forms its own little sphere of constitutional common law. (Analogously, Austrian contract law should be relevant, though not controlling, to novel issues in American courts, so long as they're not controlled by the UCC or similar statute.) The common law has always considered the way our neighbors handle their problems, and why not? If their way makes sense and works well, all the better to steal.

So German feelings on capital punishment are and should be relevant, simply as (as noted by Mr. Guithier) a sloppy indication of the way the current generation views old concepts.

It's emphatically not a matter of German logic being controlling or somehow superior to our own, as seems to be presupposed by your framing. Who cares why the Germans outlawed the death penalty when we already know that they disapprove of it? (I'm surprised to learn that the majority does disapprove, actually; I believe a majority of those French who are not members of parliament still favor the death penalty, and would have thought it the same in Germany.) The latter has some bearing on what the content of "cruel and unusual" could mean (if only because the world is all of a sudden interconnected); the former is only relevant if American courts are unable to exercise their own judgment about the reasons for and against capital punishment.
6.4.2005 9:42pm
PG (mail) (www):
"here in the U.S., bigtime moral laws, such as gay marriage, the death penalty, abortion, and the like garner heated debate and usually a clear majority that is obeyed."

The other relevant difference is that 'bigtime moral laws' such as those cited are normally considered matters for the state legislatures, not Congress. Most European states, from what I know, do not have such a federalist division. Our national decisions on these matters are more likely to come from the Supreme Court than Congress once they are held to be issues of constitutional right and not merely subject to state police power.

(Query on the phrase "state police power": Is this normally understood to include all regulation of health, safety, welfare and morals?)
6.4.2005 10:09pm
SupremacyClaus (mail):
Take a miracle remedy, penicillin. Before penicillin, 95% of pneumonia patients died. After penicilling, 95% survived. Self-evidently effective.

Now get a pneumonia patient and subject him to lawyer procedure. Initiate penicillin, but 7 years after the onset of pneumonia, with a trial and appeals. Give penicillin at one tenth the effective dose, to a randomly selected one tenth of pneumonia patients. Penicillin does not look so good.

Here is a concept, the dose response curve. When, you enter the steep, middle of the curve, its sweet spot, the response jumps up 10 fold, with tiny increases in dose, typically.

This concept has yet to be applied to capital punishment. Only the tiniest doses, with the greatest delays, at the greatest cost in lawyer fees, have made it look less effective than it could.

Here is an another theory that has yet to be applied. The deceased have an extremely low crime recidivism rate. I propose a blue ribbon commission, to investigate that idea.

As to cruelty. About 90% of us will have a rough, upsetting exit, in diapers, wracked by excruciating agonies, yelling at nurses. I would choose a dignified, quiet execution, for myself, instead of what I know awaits. And, no, the Japanese custom of not informing anyone of the execution date is kindness. How many of us would like that information, and to engage in a countdown in a cell on death row? That is the cruelest aspect of our practices.

The lawyers here are too arrogant, too heedless, too impulsive in their supercilious judgments.
6.4.2005 10:21pm
Robert Lyman (mail):
I'd be inclined to support the use of foreign reasoning, but not so much foreign conclusions. If a foreign court or legislature has a good idea or a sound argument, why not adopt it? The fact that the court is foreign doesn't make their logic less compelling. To say otherwise is pure ad hominem.

My major problem with the SC's use of foreign law seems to be that they adopt conclusions while ignoring reasoning: almost no countries execute juveniles, therefore the US shouldn't execute juveniles. That is nothing but permitting foreigners to control US policy, which is a bizarre and surprising inversion of popular sovreignty. If all we're doing is taking poll with a yes/no answers and no explanation, wouldn't a poll of Americans be a better choice?
6.4.2005 11:27pm
Rainer:
It seems that Mr. Lane researched his assertion poorly. A quick search reveals that abolishing the death penalty is an original article of the Grundgesetz, the constitution of the Federal Republic of Germany. Article 102 reads simply: "Die Todesstrafe ist abgeschafft." (The death penalty is abolished.)
The motion to include this article was made by Friedrich Wilhelm Wagner, a member of the Social Democratic Party, a party not known for right-wing inclinations, quite the opposite.
It was made in 1949 during the deliberations of the Grundgesetz in the Parlamentarischer Rat, the body explicitly sanctioned by the Western Allies, then the occupational powers, to establish the new Federal Republic.
There is no separate law to abolish the death penalty that would have been voted on in the Bundestag, the Parliament.

In 1950 a right-conservative party member moved in the Bundestag to reintroduce the death penalty with the aim to use this topic to prove the illegitimacy of the Grundgesetz as a document "imposed by the occupation forces" and never voted on by the people.
http://www.dradio.de/dlf/sendungen/ verfassungsgeschichten/348459/ (in German)

In 1952 a right-wing party moved again for reintroduction. It got nowhere.
Until 1958 5 more attempts were made to change the basic law.

The history of the death penalty (in German):
http://lexikon.freenet.de/Todesstrafe

A change in the Grundgesetz requires a 2/3 majority.

It is, however, possible that a law reintroducing the death penalty would have carried a simple majority in the early 1950s.
6.4.2005 11:32pm
pug (mail):
Citing foreign law in death penalty cases is different than citing foreign law generally.

Generally, courts citing foreign law is helpful in so far as the foreign court’s reasoning is useful or insightful; foreign law is no different than citing a law review article or any other secondary source. Foreign law can also provide foreign solutions to problems faced here in the United States. If, for example, affirmative action elsewhere in the world has not brought about greater diversity in higher education generally, then that might be useful to look at, even though it might not be dispositive.

Clearly, in both of those cases, the “how” and “why” of a law are generally useful. The mere fact that a foreign jurisdiction has done something, by itself, means little or nothing.

On the other hand, foreign law (and opinion) does seem to operate differently under the Court’s Eighth Amendment jurisprudence. In evaluating claims that a death sentence is disproportionate or excessive, the Court applies a two-pronged test: (1) Whether the punishment is consistent with societal views or evolving standards of decency and (2) Whether a death sentence furthers any legitimate punishment purpose, focusing in on retribution and deterrence.

How the Court determines the first prong is controversial. Everyone on the Court agrees, however, that you should at least look to state legislative activity and jury verdicts. With state legislative activity, the Court just counts the number of jurisdictions that do not allow the death sentence in question. For example, the Court might take notice of the fact that 25 out of 40 states that have the death penalty prohibit it for juveniles. The Court does not look at why those states do not have the death penalty for juveniles, but merely the fact that 25 states do not have a law allowing for the execution of juveniles. (There is some disagreement on the Court how to count, but that’s not relevant here.)

At least six members of the Court think you can also look to foreign opinion about the death penalty. If the Court takes the same approach with international jurisdictions that it takes domestically, it wouldn’t look to why the foreign jurisdiction in question does not have the death penalty, or does not allow it for juveniles, or whatever the case may be. Instead, the mere fact that a foreign jurisdiction did not have the death penalty would be relevant.

I don’t see the problem though because the Court has never held that foreign law is binding on U.S. Courts. It simply looks at it. I never understood why this practice bothers some conservatives. No U.S. Court has ever held that it must interpret the U.S. Constitution in a certain way because of foreign law. Perhaps in the Court’s death penalty jurisprudence, it doesn’t make any sense to cite to foreign law because of the objective counting (as opposed to examining the foreign law like a law review article or as a helpful empirical study). But I don’t see why it’s a big deal.

Anyway, this long post is to say that in cases that fall into the first bin described above, it does matter why a certain jurisdiction passed a law. In death penalty cases, it probably doesn’t matter, but citing foreign law in death penalty cases probably doesn’t matter either. Even if the German death penalty law were passed because the entire German population thought the death penalty was barbaric, the U.S. analysis wouldn’t change.
6.4.2005 11:39pm
arbitraryaardvark (mail):
I didn't respond before, but I've just been looking over the "constitution restoration act of 2005" which addresses the role of international law.
http://thomas.loc.gov/cgi-bin/query/z?c109:S.520:

Global practice is relevant to an 8th Amendment determination of whether something is unusual. If every other country does it, that's less unusual than if no other country does it. Germany has had lots of time to reinstitute a death penalty if it wanted to.
The next tier of relevancy comes when dealing with ambiguous phrases like due process or equal protection.
International law is least relevant to phrases like "freedom of speech", "right to bear arms" which are rooted in the angloamerican common law.
The Act would prohibit recourse to international law other than common law, would strip federal courts of jurisdiction over some religious issues, tries to do so retroactively,
and would make its violation grounds for removal of judges.
I have no idea if it's at all likely to pass, or is just symbolic.
6.4.2005 11:39pm
John (mail):
I gather that this "foreign law" stuff comes in when the Court is interpreting the fuzzy Constitutional phrases, such as "cruel and unusual," and even "due
process."

But what this argument leads to further is that a huge amount of SCOTUS
posturing is based on factual assumptions that are either unstated or
supported not by evidence but by social tracts and opinions that have
not, in the course of the litigation, received anything like the
adversary process usually accorded relevant factual information. The
origin of German law is of course one such set of facts, but from Brown
v. Board through Roe v. Wade to Lawrence, etc., etc., completely
untested factual theories about human nature, motivation, or behavior
are simply assumed.

The origin of German law is just one small facet of this larger issue,
I think...
6.4.2005 11:45pm
Occam's Beard (mail):
Foreign law is self-evidently irrelevant, because it is all over the shop. Why choose German law for its distilled wisdom regarding capital punishment? Why not Iranian? Or Chinese? (Charging the family for the bullet makes a point, doesn't it?)

The point is that foreign law constitutes a smorgasbord where jurists who are so-inclined can easily go opinion shopping to find what a vehicle that will take them where they want to go.
6.4.2005 11:45pm
Mark:
A few years ago I saw a poll of european opinions on the death penalty. In every country but France the death penalty was favored by the majority and even in France it was a 50/50 split.

Do we have a more recent poll on european opinions to back up the assertion that the majority of Germans are now against the death penalty?
6.5.2005 1:18am
Dick King:
I doubt that most of the proponents of using Europe's jursiprudence to guide our own constitutional interpretation would be happy if we used Europe's practices to guide our understanding of freedom of our First Amendment.

-dk
6.5.2005 12:24pm
SMGalbraith (mail):
I cannot begin to fathom how a Supreme Court Justice would be able to roam the global landscape (193 countries in the world) and examine in any detail the vast array of foreign court rulings and decisions when deciding on the constitutionality of US legislation.

Not with a 1000 law clerks.

Impossible.

SMG
6.5.2005 1:06pm
Daniel Chapman (mail):
Oh they don't have to. Generally they know what they want and they go looking where they can find it. And usually it's in Europe.
6.5.2005 2:14pm
Robert Lyman (mail):
pug,

I trust that Occam's Bear, Dick King, and Daniel Chapman have explained why conservatives object to polling foreign countries? The SC does it selectively (both as to which nations to poll and which elements of those nations' jurisprudence to consier) to support a particular political stance (e.g. death penalty = bad, or homosexual sodomy = fundamental right). They ignore foreign laws they don't agree with.

It thus looks like an unprincipled way to promote certain pre-determined outcomes (typically left-wing outcomes) rather than a thoughtful search for persuasive arguments to decide what those outcomes should be.

I strongly suggest that people interested in this question read Olympic Airways v. Husain, 540 U.S. 644 (2004), in particular Justice Scalia's dissent. The opening paragraphs, somewhat edited:


When we interpret a treaty, we accord the judgments of our sister signatories " 'considerable weight.' " Air France v. Saks. True to that canon, our previous Warsaw Convention opinions have carefully considered foreign case law. Today's decision stands out for its failure to give any serious consideration to how the courts of our treaty partners have resolved the legal issues before us.

This sudden insularity is striking, since the Court in recent years has canvassed the prevailing law in other nations (at least Western European nations) to determine the meaning of an American Constitution that those nations had no part in framing and that those nations' courts have no role in enforcing. See Atkins v. Virginia, (whether the Eighth Amendment prohibits execution of the mentally retarded); Lawrence v. Texas, (whether the Fourteenth Amendment prohibits the criminalization of homosexual conduct). One would have thought that foreign courts' interpretations of a treaty that their governments adopted jointly with ours, and that they have an actual role in applying, would be (to put it mildly) all the more relevant.
6.5.2005 2:40pm
pug (mail):
Robert, if Occam's Bear, Dick King, and Daniel Chapman have explained why conservatives object to polling foreign countries, then I still don’t understand the complaint.

In the first group of cases in which the Supreme Court examines foreign law (when foreign law is used like a law review or as a helpful empirical study), it doesn’t matter if the Supreme Court “selectively” chooses which foreign laws to cite. It also “selectively” uses law review articles and empirical studies to support its point. Why is foreign law any different? No one has addressed that argument.

In the second group of cases (the Court’s 8th Amendment jurisprudence), I also don’t see the big deal because no one on the Court is stating that foreign jurisdictions bind the Court. It might be worth noting, as an aside, that the United States stands alone (or nearly alone) in the developed countries in executing juveniles. While that fact should not control the outcome, it might be worth noting in confirming the Court’s conclusion that it is cruel and unusual to execute juveniles, particularly given the way in which the Court uses domestic law in this area. How is the Court masking its real reason for deciding the way it did by also citing foreign support? It has been very upfront and honest that it thinks there are enough U.S. jurisdictions opposed to the execution of juveniles.

You state that the Court doesn’t cite foreign law to the contrary of its position, but I don’t see the point. Is it the majority’s job to find every secondary source that disagrees with it? If the dissenters think some foreign court’s reasoning should persuade the Court to adopt the opposite conclusion, then it should cite it. In death penalty cases, it’s easy to “count” those that agree and disagree with the United States because nearly everyone disagrees with us and the dissenting countries are noted by the majority.

Scalia’s “mocking” the Lawrence majority for citing to foreign law is a complete misrepresentation of that opinion. That misrepresentation has been pointed out to Scalia on at least one occasion, but he keeps noting it. In Bowers, Justice Burger, that crazy leftist, cited the history of “Western Civilization” to support his argument that homosexual sodomy could be regulated by the state. In response to Burger's mention of foreign jurisdictions, the majority in Lawrence answered, arguing, in part:


The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, §1.

Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today’s case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization.


Is that so objectionable?
6.5.2005 3:30pm
Robert Lyman (mail):
pug,

I think the heart of our disagreement is how the Court uses foreign law. You seem to think that the Court is simply using it like "law review articles and empirical studies." If you look at my earlier comment, you'll see that I don't object to that practice at all.

I think the Court uses foreign law to decide cases not based on the reasoning, but rather as a prop for imposing unpopular decisions which have no basis in our nation's history or Constitution (they need to cite something, right?). Consider the remarks of Justice Breyer, quoted at Powerline: "U.S. law is not handed down from on high even at the U.S. Supreme Court." Well no, it comes from the people, right? That's not exactly what he meant, though. And even the quote you give from Lawrence supports my view: there's nothing in there about why those decisions came out the way they did, or the language of the treaty being interpreted, just a bare "other countries agree with us," which hardly qualifies as an argument. That's doubly true because Burger looked to history to understand an 18th century document; what happened 50 years ago is hardly relevant to that pursuit.

If the court want's to quote the judges of the supreme court of Sri Lanka, that's fine with me. Perhaps they are unusually eloquent in expounding on similarly-worded provisions of their own constitution.

If the Court is going to start imposing, in the name of a Constitution written, ratified, and amended by Americans to assure popular sovereignty, decisions made by (usually unelected) foreign judges, then I want a clear explanation of why those judges were chosen (Why Europe and not China? Why today's judges and not those of earlier eras?) and why I should think they know more about interpreting our Constitution than actual American voters and legislators. On what principle does the Court pick our new rulers?

And sure, "it's not binding." But it is apparently more binding than the will of the people, expressed through their duly elected representatives. That is quite binding enough for me.
6.5.2005 4:25pm
Daniel Chapman (mail):
My favorite argument (can't remember where I heard it... might have even been on this site) goes something like this:

Imagine Lawrence v. Texas had come down the other way, 5-4 with Justice Thomas writing for the majority. Imagine he had cited to Canon Law. Imagine he made it very clear that this was merely explainatory and it was obviously not binding on his decision, but it should be examined when reaching a decision on sodomy due to its historic influence on laws of a moral nature.

Can you imagine the outrage? That's about how conservatives feel when controversial issues are decided by looking to western europe, where the issues have already been decided in an unsatisfactory manner.
6.5.2005 6:07pm
SupremacyClaus (mail):
Germany does not have a death penalty. It has this.

Skip the left wing masking ideology at the top. Go straight to the bottom of the page. Please, note the dates separating the discovery of the kidnap victim's body and the final resolution. Even wrote a nice apology note, after all the nasty things he said about capitalism and the victim. I wonder how they persuaded him to do that?

No $1 mil appeals for you, baby, nor for the criminal-loving, rent seeking lawyer. You get stacked in the ground. Efficient.
6.5.2005 7:17pm
wilson (mail):
"Germany does not have a death penalty. It has this.

Skip the left wing masking ideology at the top. Go straight to the bottom of the page. Please, note the dates separating the discovery of the kidnap victim's body and the final resolution. Even wrote a nice apology note, after all the nasty things he said about capitalism and the victim. I wonder how they persuaded him to do that?

No $1 mil appeals for you, baby, nor for the criminal-loving, rent seeking lawyer. You get stacked in the ground. Efficient."

I lived in Stuttgart that Autumn. In my view, the death penalty for juveniles or those with IQ under 69 has nothing to do with what happened in Germany then.

I also was at the Olympics in Munich when Israeli athletes perished. From what I can tell, there was nothing exemplary about the German approach in Munich.

German authorities were so "un-courageous" in Munich, and weak-seeming in Stuttgart, that I would be most surprised if they murdered any terrosits in their custody. That was just not what they were about then, and is probably not what they might do now. In 1933-45, sure; in 1969-81, that approach was not in the cards.

Citing foreign or state rules in a "nose counting" manner is obviously suspect. But if conservatives have examples of places (or times) where executing juveniles or those with IQ's below 69 has led to good results, show us.

Also, when citing surveys in the DP area, one must ask what alternative to the DP is given to the surveyed individual? If the choice is between life without possibility of parol (LWOPP) or death, one tends to see a marginal support for the DP, at best. At least that is my recollection of recent US surveys.

As far as I can tell, LWOPP was not any sort of practical alternative to death in 1787. Science as to mental health issues - science showing empirical data that an accused has the brain power of an 8 year old - did not exist in any substantial form.

Differences of an organic nature between juvenile brains and adult brains were not understood in much detail, if at all.

Hence, having a judge decide all IQ or mental-health related death penalty issues as if nothing had changed in our knowledge base since 1787 would seem irrationally conservative. It would also seems dehumanizing to tell judges that you must kill X even though he thinks like an 8 year old, and thought like that at the time he killed. Decency ideas should change as we know more about how the brain works.

Some reference to other places we respect, in an adversary context where an opponent can advocate the Chinese experience or what have you, looks like fair argument to me. If it is fair argument, why not have the judge report the argument?
6.5.2005 9:23pm
Daniel Chapman (mail):
You just made some excellent policy arguments in favor of abolishing the death penalty. I disagree with them, but I'm sure your state legislature would love to hear them when considering its policy concerning capital punishment.

But we're talking about judges here. Have we given up even pretending judges don't make policy?
6.5.2005 9:35pm
Rob Lyman (mail):
"having a judge decide all IQ or mental-health related death penalty issues..."

That is the conservative point in a nutshell. Why should a judge decide those things at all? Are judges somehow more capable of making these calls than are legislatures? Even despite the substantial resources of legislatures, with their staffs, power to order up studies and pay for them, subpoenas, and of course huge numbers of lobbyists engaged in argument before them?

This also gets at the foreign law question: if a legislator wants to argue that conforming to foreign norms is in the national interest, or just plain right, let him; we don't mind terribly. We can vote against him next time (or for him if he convinces us).
6.5.2005 9:53pm
wilson (mail):
"You just made some excellent policy arguments in favor of abolishing the death penalty. I disagree with them, but I'm sure your state legislature would love to hear them when considering its policy concerning capital punishment.

But we're talking about judges here. Have we given up even pretending judges don't make policy?"

Let's assume the Magna Carta had a "no cruel or unusual punishment" provision. Would England then be compelled to consider drawing and quartering after torture fully constitutional? Of course not. They interpret and announce law that comports with modern standards. Can and should the USSCT do likewise?

Of ousae judges make law - or mandatory policy if you prefer. That is what they are appointed to do. That seems accepted as a proven empirical fact in the US since around 1900.

The Constitution is intentionally unspecific in many ways. Just as contracts routinely have gaps that lawyers and judges must fill, so does the constitution.

That "filling-in" process, in my view, is initially the duty of the states, subject to review in the federal courts. Judge Marshall pretty well laid it out in the late 18th and early 19th century. The Civil War pretty much settled the "states can do their own thing" argument.

By labelling the death penalty decisions "policy" as opposed to "law" or "interpretation", one skews the "abuse of discretion" argument. Everyone agrees that judges can and should announce law and interpret contracts and the like. How does one define what shades into discretionary "policy" as opposed to law or interpretation of agreement?

I agree that the law vs. discretionary policy line is tough to draw and I note that DP opponents have made their arguemtns about LWOPP, juveniles and low IQ's with considerable success in lots of legislative bodies. Does that mean one cannot legitimately make some of the same arguments to judges? Not in our system, as routinely demonstrated by arguments in both fora by big pharm, movie studios, etc.
6.5.2005 10:20pm
Occam's Beard (mail):
Mr. Lyman,

While IANAL, and I haven't read the case you cited, on its face I think taking cognizance of foreign law is entirely appropriate in interpreting a treaty, which perforce is between countries. It looks as though the Court looked to foreign law to determine the intent of the other parties to the treaty. No problem there, for me at least.

I also have no problem with looking to other countries for arguments and reasoning to apply here. My problem arises when we accord weight to other countries' conclusions, as opposed to the process by which they reached those conclusions. In short, the ultimate decision must stand on its own under American law and American principles - period. Whether other countries do or don't have a death penalty is, in and of itself, irrelevant in my book. We should no more change our laws regarding capital punishment because, e.g,. the UK has abolished it, than we should abandon separation of church and state because the UK has an established religion.
6.5.2005 10:57pm
SupremacyClaus (mail):
The death penalty has yet to be used properly, anywhere. It is best used for social self-defense.

Some murderers should go home, because they pose no further threat. Prison or the death penalty for them would hurt the public interest. The public is the owner, and pays for every penny of cost. Its interest is ignored by the thieves that have converted this chattel, the lawyer on the throne. Public interest will prevail.

Some thieves have outlived the value of their life, and should be hanged, for example, past the $2 million damage mark.

Any such change should be clear in law, and give judges no latitude. Judges are incompetent, biased, little dictators, and set all the criminals free idiots. Idiots would be OK, my being one. But, worse, they only have allegiance to lawyer rent seeking and malignant proceduralism. Not a single one cares about victims, especially the 1000's guaranteed in the future of the average criminal's career. No lawyer should be permitted on the bench by Constitutional Amendment.
6.6.2005 12:21am
wilson (mail):
"having a judge decide all IQ or mental-health related death penalty issues..."

"That is the conservative point in a nutshell. Why should a judge decide those things at all? Are judges somehow more capable of making these calls than are legislatures? Even despite the substantial resources of legislatures, with their staffs, power to order up studies and pay for them, subpoenas, and of course huge numbers of lobbyists engaged in argument before them?

This also gets at the foreign law question: if a legislator wants to argue that conforming to foreign norms is in the national interest, or just plain right, let him; we don't mind terribly. We can vote against him next time (or for him if he convinces us)."

Judges can best decide IQ questions because they get to see and hear the expert witnesses who have administered the IQ tests. They can judge the credibility of asserting an accused functions as an 8 year old when under stress. They get to see, again and again at the USSCT, the accused 20 year old (chronological, not mental age) who has yet to learn to read well enough to take a driver's test. Do Presidents and Legislators read those sorts of declaration? Maybe in our dreams.

Judges get to "green light" or "red light" executing the functional equivalent of an 8 year old. Executing an actual 8 year old would have been considered cruel and unusal even in 1787.

How would the USSCT decide the issue in 1787? By reference to foreign law. If it was ok then, and we want strict construction based on original intent, why not look at law of England or France or any other civilized county in 1787?
At least one should admit that contemporary (1787) law of foreign origin could have relevance.

If one accepts the factual conclsuion that 69 IQ equals intelligence and performance ability of an 8 year old, the issue resolves itself with minimal debate. Who other than a monster would feel right about executing an 8 year old? If conservatives dislike the mental health conclusion, perhaps they should look hard at the IQ test and the mental health profession. Attacking judges seems misguided.

Juveniles issue seems closer. I suspect that as we learn more about the adolescent brain, we will become more comfortable with the idea that it has considerably less impulse control than an adult brain. Structurally, organically and chemically, the adolescent has a geater risk of doing a capital crime than an adult. What weight does one attach to that? Again, I submit USSCT judges have more routine access to the relavant expert data and can and should make the call.
6.6.2005 1:00am
SupremacyClaus (mail):
Wilson: We mellow with age. Crime among 50 year olds is lower than among 40 year olds, but higher than among 60 year olds.

See Table 4-4, p. 345.

http://www.albany.edu/sourcebook/pdf/section4.pdf

The public pays for and owns criminal justice. The interest of the owner are the only valid purpose. All other considerations are forms of social immaturity and from Grotius. Grotius standards of lawyer practice were OK in 1600. Nothing from then is OK for every day practice today. Think medical care from then. Not acceptable. Why is 1600 lawyer practice any more acceptable?

And Grotius was ... ? OK, Dutch, but he died in Germany.
6.6.2005 3:15am
Rob Lyman (mail):
OB:

You and I and Justice Scalia are in 100% agreement. Scalia's point (go back and read again) is that the majority in Olympic Airways ignored foreign law when interpreting a treaty, while referring to it to interpret the Constitution. All three of us consider that exactly backward.

Wilson:

I suspect that few conservatives would mind if trial judges, who do see expert witnesses and whatnot, decided not to impose the death penalty despite a jury's recommendation. No problem here: that's about individualized fact finding and discretion. But we're talking about the SC issuing a blanket ruling which binds everyone to the result of a test or expert's conclusion, even if the trial judge and jury both think, based on having heard the expert and seen the test, that death is appropriate. Even if 69 IQ = 8 year old and execution is barbaric (I agree, BTW), what if the judge and jury think the guy is faking it and intentionally got a bunch of test questions wrong? The SC says he must be spared no matter what.

And yes, foreign law around the time of the Framing, especially English law, is relevant. No conservative objects to examining the commmon law as it existed at ratification.

You have thus addressed two arguments that no on has made or is likely to make.
6.6.2005 6:19am
wilson (mail):
"Wilson:

I suspect that few conservatives would mind if trial judges, who do see expert witnesses and whatnot, decided not to impose the death penalty despite a jury's recommendation. No problem here: that's about individualized fact finding and discretion. But we're talking about the SC issuing a blanket ruling which binds everyone to the result of a test or expert's conclusion, even if the trial judge and jury both think, based on having heard the expert and seen the test, that death is appropriate. Even if 69 IQ = 8 year old and execution is barbaric (I agree, BTW), what if the judge and jury think the guy is faking it and intentionally got a bunch of test questions wrong? The SC says he must be spared no matter what.

And yes, foreign law around the time of the Framing, especially English law, is relevant. No conservative objects to examining the commmon law as it existed at ratification.

You have thus addressed two arguments that no on has made or is likely to make."

Your view of USSCT being divorced from the expert presentations in death cases seems incorrect. Ceretainly they have the records (clerk's transcripts, decalrations, trial transcripts). They read the records, through clerks. Also, the USSCT did not have a cutoff of 69 IQ -- that is a rule of thumb, I suppose. It said mentally retarded, as I recall. So the person wuith 69 IQ can still be challenged as faking it, or nonetheless not mentally retarded.

If it is ok to look at English law in 1787, and the 8th Amendedmnt simply says no cruel and unusual punishment, why do we assume the framers want the reference to foreign law necessarily cut off at any time? Why not assume they meant doing nothing that is at any time, over the next 1000 years, cruel and unusual? The framers must have assumed the nation could expand west and include lands taken from French, Spanish (eg Phillipines), English (Canada) or Indians. Did framers intend us to ignore local customs in acquired lands when deciding what might be cruel and unusual? From what evidence (as opposed to conservative predeliction) does one know the framers intended this narrow approach to 8th Amendment cases?

If I write a contract that says we will have no unreasonable profits, and I expect the contract to last 1000 years, would I want the future interpreters bound by market conditions in 2005? Probably not.

Incidentally, if it is ok to look at state law to see what is cruel and unusual, which state law? Just state law from original 13 states? Just states or colonies that have reasoned opinions from 1750 to 1817? Suppose one finds nothing on point? The clause then has a hole that one can only fill by amendment? So since the 8th Amendment does not specifically say no boiling in oil, and not reasoned opinion on the point exists from 1750-1817, any state can take that approach to punishment until the states amend the constitution?

Finally, about who makes "rent" (profits) from death penalty cases.

First, the prison guards. Look at the folks at San Quentin that make money hand over fist providing guard services 24/7 for 1 inmate per cell, max security - the union guards. They lobby hardest for expanding death row in SQ, CA.

Next most interested - folks like Lundgren, former AG in charge of death cases. He drafted the new federal death penalty statute, used his death work to help fund a run for governor (unsuccessful) followed by a run for Congress (successful). Granted, he does not pocket millions, but neither do defenders. He pockets large sums for his political campaigns, though.

Third, look at the Death Doctors - Park Deitz and Martell. They charge $350 to $650 per hour (each case easily $50,000 or more) to say, essentially, "not sick, just bad".

If one wants the DP defense industry to evaporate, why not crack down on prosecutors looking to promote their careers, their experts, and prison guards.
6.6.2005 1:07pm
Mike G. in San Diego (mail):
Orin Kerr wrote:

... public opinion in Germany today [...] is in fact strongly opposed to capital punishment. So path-dependency problems aside, it seems highly likely that German law would have abolished the death penalty eventually even if it hadn't done so in 1949.


I don't see this as highly likely at all. People tend to stick with the status quo in terms of what they see as "right and proper." If the law had not changed, I strongly doubt that public opinion would have spontaneously gone against capital punishment.

An interesting hypothetical case: Substitute "ban on drugs" for "ban on capital punishment." If the U.S. Congress had not made recreational pharmaceuticals illegal in the early twentieth century, would the majority of the population today be in favor of banning them?
6.6.2005 2:17pm
SupremacyClaus (mail):
The use of numbers for IQ is obsolete. Only the dumbass SC doesn't know that.

You score an IQ of 50, on a test that requires motivation and cooperation to be accurate. At 18, you have a mental age of 9.

Since age 14, you have been a drug dealer, living and thriving in the most stressful neighborhood in the US. You are making $1000 a week, tax free. When not working so hard, it's the Roman Orgy every day. By 18, you have had 100 sex partners, a few kids. You are driving a nice car. Some beef arises. You settle it with a gun.

Not only is this person a precocious businessman, but is living on his own, supporting several families, and having a great time. Lifestyle is a little scary, with its high murder rate. However, being a sensation seeker, that is fun, not obnoxious. Social skills are above average, "street smarts." Let's drop some of the lawyers here in that neighborhood, see how they make out. Bring some law books, to hit people upside the head.

Since being condemned to death, you have been hanging out with a lot of windbag lawyers. Now the score on the IQ has increased past 70. You should sue the defense lawyers for wrongful death by negligent education, if executed.

What are you going to believe, a paper and pencil test, or your lying eyes, to paraphrase Richard Pryor?

How many of you appellate advocacy types had 100 sex partners, were making $50G's at a mental age of 9, and have conned the dumbass SC?

Actually, I have more respect for the SC than I let on. They are the biggest cons. That kid is an amateur. The SC really rakes the public over, but good, increasing lawyer rent by $bils through extreme proceduralism, exceptionalism, and exceptions to the exceptions, defenses to the exceptions to the exceptions, in between inscrutable English use, requiring professionals for the simplest transactions. They are not dumbasses at all.
6.7.2005 6:24am
Katherine (mail):
One of the things that varies among countries and Constitutions is the extent to which they make it legitimate for the high court rely on foreign constitutional law or international law. In South Africa, for example, the text and history of the Constitution mean that it is appropriate to look to foreign law quite a lot. In the United States, the appropriate scope is far more limited.

The meaning of the words of the Constitution, in the sense of definition, does not and should not change. The meaning of the words of the Constitution, in the sense of their application to particular facts, inevitably changes and should change as the facts change or our knowledge of the facts changes. History did not stop in 1787 and did not stop mattering in 1787. "Constitutional facts", I think the term is.

There are other countries have been through the same history, and have applied it to Constitutional provisions similar to ours, and they may be useful persuasive authority--like a law review article, or a statistical study.
6.8.2005 4:40am