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What Does Foreign Law Teach Us About the Constitutionality of Methods of Execution?:
Several Supreme Court Justices believe that foreign law and practice can help elucidate the meaning of the United States Constitution. They contend that the experience and practices of other countries are relevant to the meaning of our founding charter; what works for other countries may work for us, and we need to be open-minded to the practices and experiences of other nations rather than be arrogant and think other countries have nothing to teach us. This raises an interesting question for those following Baze v. Rees, next week's case on the constitutionality of methods of execution: In countries that have the death penalty, how do they carry out their executions?

  Unfortunately, I couldn't find a good summary of the methods of execution in all 74 countries that have the death penalty. However, I did learn that the clear leader in terms of experience with capital punishment is China: It is estimated that China is responsible for about 80% of the executions worldwide every year. In China, the traditional method of execution appears to be the firing squad. Here's how one website described the process:
Executions are often carried out immediately after a public sentencing rally and the criminal's family is made to pay for the bullet. The prisoner's arms are shackled behind them and they are made to kneel down before receiving a single bullet fired at close range into the back of the head or neck by a soldier or policeman or by a bullet fired into the heart from behind using an automatic rifle.
  However, there is a growing movement in China to replace this with lethal injection; lethal injection was first used about ten years ago and appears to be gaining in popularity as a more humane method of execution. According to the USA Today, lethal injection in China is implemented using so-called "death vans," mobile execution chambers that travel from town to town. One person has estimated that as much as 40% of Chinese executions currently are carried about by the "death vans" instead of by firing squad. Unfortunately, I was unable to find anything on the specific cocktail of drugs the "death vans" use to carry out executions in China.

  In any event, China is of course only one example. Those who believe foreign practices are relevant to the meaning of the U.S. Constitution would want to look more broadly at many other nations, including Saudi Arabia and Iran, two countries with high execution rates. And of course I'm not endorsing this method of Constitutional interpretation: I happen to think practices in China and elsewhere are utterly irrelevant. But I thought it would be interesting to start the inquiry for those who believe that foreign practices inform the meaning of the U.S. Constitution.
alias:
If the wing of the court that cares about foreign law follows its mode of "analysis" in Roper v. Simmons, it'll look primarily to the practices and opinions of countries that do not have the death penalty, particularly those that might once have performed lethal injections before getting rid of the death penalty, because those countries are more likely to provide support for what those Justices appear to be trying to do.

I'm hoping to be proven wrong about this, but I have low expectations for the majority opinion in this case.
1.2.2008 3:57pm
lucia (mail) (www):
Oh Ick!

Sounds like what we can learn is that generally speaking, countries that have the death penalty implement it cruelly.
1.2.2008 3:57pm
tvk:
Orin, do you really mean utterly irrelevant? Suppose, for example, that the practice in China shows that the condemned suffer writhing agony before dying by lethal injection or firing squad. Wouldn't that be quite relevant to whether that method is unnecessarily cruel punishment?
1.2.2008 4:03pm
Anderson (mail):
I think the real point of the international comparison would be that only despicable countries even *have* the death penalty. China? Saudi Arabia? Iran?

Next up: what does China's practice of torture tell us about how we should regulate our own torture practices?
1.2.2008 4:06pm
mobathome:

... the criminal's family is made to pay for the bullet.


Who pays for the bullet of an indigent criminal with no family? It better not be BIG Government.
1.2.2008 4:08pm
Steve H.:
Okay, I'll take the bait here, at least partially.
As Orin points out, any search for instructive foreign practices concerning the death penalty might lead you to places like China or Iran.

But out of fairness, I'd point out that the justices who see value in foreign law (including the justice for whom Orin clerked!) typically confine their endeavors to countries with similar histories and traditions to our own.

That would exclude countries such as China or Iran, and would encourage comparison to other western nations, such as England, or Germany and everyone's favorite, France.

Of course, that leaves unresolved many of the other questions about whether foreign law ought to be used as a basis for interpreting our own.

But I think it does show that the foreign law advocates are more refined in their analysis than some critics might give them credit for being. They aren't just willy-nilly grabbing any foreign experience; they're looking to other places that aren't so different in the way they do things, and trying to draw lessons from them.
1.2.2008 4:10pm
OrinKerr:
Anderson,

Surely you would look to what countries used before they abolished the death penalty, correct? If the issue is only methods of execution, not the different question of whether to have the death penalty, I would think this would be the relevant comparison from which to learn from other countries.
1.2.2008 4:12pm
The Emperor (www):
I think by "foreign" they mean parts of Northwest Europe and Canada. Or more accurately, "foreign" jurisdictions that agree with our policy views.
1.2.2008 4:13pm
The Emperor (www):
I mean, "their" policy views.
1.2.2008 4:20pm
another anonVCfan:
tvk,

There's nothing wrong with citing empirical evidence that's gathered in another country. What's a problem is surveying the field of foreign law and then "picking out your friends" to support a prefered interpretation of the Constitution. The hypothetical evidence you describe may exist as a result of foreign law, but it is not the law itself.
1.2.2008 4:20pm
Nathan_M (mail):
Surely you would look to what countries used before they abolished the death penalty, correct? If the issue is only methods of execution, not the different question of whether to have the death penalty, I would think this would be the relevant comparison from which to learn from other countries.


The logic being what? If it wasn't good enough for the UK over 40 years ago it's good enough for America today?
1.2.2008 4:22pm
CrazyTrain (mail):
What tvk said.
1.2.2008 4:25pm
Dave D. (mail):
...We learn again that hanging someone with a rope too long results in decapitation.
1.2.2008 4:26pm
OrinKerr:
Nathan,

The logic is that the issue is how best to do something; presumably you look at instances in which it was done, and then you study how they did it. Leaning how to do something by studying its absence seems like an unusual method to learn how to do something.
1.2.2008 4:28pm
Crust (mail):
"another anonVCfan": There's nothing wrong with citing empirical evidence that's gathered in another country

But doesn't that sustain tvk's point that Orin is wrong/overstating in saying that the practices of other countries are "utterly irrelevant"? After all, isn't what constitutes cruel and unusual punishment in part an empirical question?
1.2.2008 4:28pm
ejo:
haven't I read where opinion polls in many of the countries where cp was abolished show the citizens want it while, of course, the non-responsive ruling class don't-would our Justices credit only the latter while ignoring the former?
1.2.2008 4:29pm
AF:
Surely you would look to what countries used before they abolished the death penalty, correct? If the issue is only methods of execution, not the different question of whether to have the death penalty, I would think this would be the relevant comparison from which to learn from other countries.

No, the relevant question is what countries currently administer the punishment in question. The countries traditionally considered relevant to American law, most notably England, do not employ the particular method of lethal injection at issue in Baze. Thus, to the extent that the views of other countries are relevant, they weigh in favor of the defendant.

Of course, the reason comparable countries do not use the punishment at issue is that they don't have the death penalty at all. But that is hardly an argument that foreign law weighs in favor of lethal injection!
1.2.2008 4:37pm
gasman (mail):

What Does Foreign Law Teach Us About the Constitutionality of Methods of Execution?

This is no longer a young country, with 220 years under the same government and constitution. Pehaps only Britain and Switzerland could have their current governance structure considered more mature.
So what should foreign law reach us about our constitution? Not a damn thing. We've got about the oldest continuously stable govenment in the world and should look to ourselves for interpretation of our constitution.
1.2.2008 4:40pm
OrinKerr:
TVK writes:
Orin, do you really mean utterly irrelevant? Suppose, for example, that the practice in China shows that the condemned suffer writhing agony before dying by lethal injection or firing squad. Wouldn't that be quite relevant to whether that method is unnecessarily cruel punishment?
Yes, I do mean it; no, that wouldn't be quite relevant. I gather you disagree on the relevance: What do you think it would show you that is of constitutional relevance? For example, what do you think existing Chinese practice proves?

I should add, I can certainly imagine specific situations in which foreign practices would be highly relevant. For example, if the U.S. Government were to sent a person to another country to be executed by that country's government, then that country's practices would of course be relevant because the foreign country would be acting as an agent of the U.S. Government. However, I'm assuming we're referring to foreign practices with no U.S. role.
1.2.2008 4:41pm
John425:
"I happen to think practices in China and elsewhere are utterly irrelevant. But I thought it would be interesting to start the inquiry for those who believe that foreign practices inform the meaning of the U.S. Constitution."

Dunno why we are having this discussion. Two bullets behind the ear ought to suffice, altho the Chinese practice of charging the family for the bullet is juicy.

We ought to calculate the pain and other terrors that the victims felt and then calculate a level of pain and terror for the murderer at just a notch below that of his/her victim.
1.2.2008 4:42pm
another anonVCfan:
Crust,

I thought it was pretty clear from the context that Orin was calling the legal practices in other countries irrelevant, e.g., using China's (or any other nation's) legal view of what is "cruel and unusual" to inform our interpretation of those words in the Constitution. Empirical data about how the human body responds to a cocktail of drugs is not the "practice of other countries".
1.2.2008 4:44pm
AF:
If we wanted to use international comparisons to decide whether waterboarding is unconstitutional, would we exclude countries that consider themselves bound by the Geneva conventions?
1.2.2008 4:47pm
Tom Cross (www):
There is a world of difference between the argument you are making and the argument you are mocking.

If there is general world wide consensus that something is moral, or immoral, its not completely unreasonable to consider that in evaluating the question of its morality. Thats a far cry from upholding a specific example of someone who engages in a behavior and saying "this behavior is OK because this person engages in it" unless there is some independent reason why this person should be considered a useful role model.

For example, when trying to educate a child that its wrong to steal things, one might reasonably point out that most people agree that stealing is wrong. Suppose the child objects that stealing must be ok because one of his friends at school does it. Thats simply not the same sort of argument, and the former argument is not incorrect simply because the later argument is.

What Breyer did was say that one of the reasons you can tell that executing minors is immoral is because most people in the world think that its immoral. This is akin to the former argument. What you're suggesting (sarcastically) is that if China or Iran engage in a particular method of execution than its OK if we do so as well. That is akin to the later argument.

The two forms of argument are completely different, the fact that one is unreasonable does not reflect on the other. As I stated, the later argument requires an independent reason to assume that the subject in question is a useful role model. I can see no good reason why the volume of executions performed by China or Iran would qualify them as helpful in determining what forms of execution are humane.

This does not shed any light on whether or not the former argument is ok to use in the context of evaluating constitutional law, nor does it even shed any light on its reasonableness in an objective sense.
1.2.2008 4:54pm
OrinKerr:
Tom,

So do you believe that foreign law and practice has nothing to teach us beyond to help us understand human morality? I have not heard that from any of the Justices, so I'm interested in hearing more if that is your view.
1.2.2008 5:02pm
tvk:
Well, I think there are two somewhat distinct issues here. First, what do the words "cruel and unusual" mean in the abstract? Now, we could say that they are basically meaningless fluff, or judicially unenforceable fluff, that the government can impose any punishment, no matter how much agony they impose on the prisoner. Racking and torture are just fine too, under this standard.

Assuming that we don't go with that interpretation, and that the 8th amendment bars some level of pain infliction, the question is whether lethal injection causes that level. The practice in China may well give us good data on the level of pain caused by different methods of execution, simply because (1) they have more executions overall; and (2) they have more executions using different methods.

Orin would still think that empirical evidence is utterly irrelevant. Another anonVCfan apparently thinks that evidence is relevant, but doesn't think that it qualifies as making the "practices of other countries" relevant.

Orin, if you don't think that the data made available as a result of Chinese practice can even be relevant, then I can only applaud that you really mean what you say. But we are just doing to have to agree to disagree about this.
1.2.2008 5:05pm
Justin (mail):
I don't get this post at all. Why look at China, Iran, or Saudi Arabia? Did we look at the countries that perform child-executions to determine their legitimacy?

The terms "cruel and unusual" do not mean "international median," or even "international mode." The proper thing to do is to look at countries with similar levels of human rights and decency as the United States. The only two countries I can think of off the top of my head is Japan and Taiwan.

Also note that neither country applies the death penalty to run of the mill murders - so this may counsel (but not by itself determine) that the death penalty as applied in the US is C&U. Note that question is not the one on cert: because of that, I think international law tells us very little about HOW to apply the death penalty.

Overall, I think the execution should be affirmed - if the act of executing someone for a run of the mill murder is constitutional (I tend not to think it is - only for multiple homicides, or major acts of treason, war, or crimes against humanity), then how the execution is performed seems a rather minor question in comparison.
1.2.2008 5:05pm
jim:
Though others have alluded to it, I'd like point out that there is a middle ground between looking to countries like China, Saudi Arabia and Iran, and looking at no foreign laws. One might instead take the cue from proponents of the fourteenth amendment (the last amendment to significantly affect governments' power over cruel punishment) some of whom talked about banning the sort of punishments used on slaves in the south, but which no other "civilized" country used.

One might attempt to discern the criteria by which the hearers of such pronouncements might understand the word civilized and then look at the practices of those countries that fit that definition. I suspect this would include France, the common law countries and a few other European nations.

Not that I am advocating this. I suspect that the originalist criteria for determining "civilized" turns out to be "agrees with the amendment's advocate on the definition of cruelty" and thus it becomes simpler just to try to discern the criteria for cruelty directly. But just to say that there is a legitimate argument out there for looking at countries like France and not ones like China.
1.2.2008 5:05pm
Alison J. Nathan (mail):
Orin - Two quick thoughts in response to your interesting post. The first is that in this area there is sometimes (often?) a conflation of international and foreign law. You mention foreign law, but as I expand in the second point, international law may also be relevant to the analysis.

Second, let me suggest that your question raises an interesting "level of generality" or framing issue, akin to that in the substantive due process context. I don't think Baze involves the question of what is the national or world consensus regarding what precise method of execution is currently being used. As a preliminary matter, we do not know if the Court will apply a consensus analysis to this method of execution challenge—the Court hasn't considered such a challenge in over 100 years, prior to the application of the 8th Amendment to the States and well before the modern death penalty jurisprudence that looks at consensus based argument. If that is a relevant doctrinal question, however, then I think the framing you suggest (what's the consensus regarding specific method) is too granular. Indeed, if that's the proper framing, there would certainly be no need for the Court to look to foreign or international law, the domestic "consensus" would answer it: 35 out of 36 death penalty states use a similar three-drug lethal injection cocktail.

Nor does it make sense to ask that specific question given that the Petitioners in Baze are not challenging lethal injection per se. They are challenging the particular protocol and procedures that are being used that present a significant danger of error that will cause severe and unnecessary pain. Indeed, they appear to conclude that other lethal injection methods (like the type used typically by veterinarians), would likely be permissible because they do not involve a high danger of pain even if administration errors occur.

Arguably, the only way it makes analytical sense to ask a consensus question in this context is to probe at a higher level of generality: What is the consensus regarding the amount of pain and risk of pain that evolving standards permit in the context of legal executions? Indeed, the Petitioners in Baze argue that there is a national consensus regarding executions that involve anesthetized deaths. They contend that because Kentucky's procedures and protocol involve such an unnecessarily high risk of severe pain, it falls outside this consensus. And this appears to coincide with the international law consensus on this point. As Andy Pincus, the Yale Law School clinic, and Human Rights Watch argue in this amicus brief (available at lethalinjection.org), international law requires that executions inflict the minimum possible pain and suffering.

Ali Nathan
1.2.2008 5:07pm
alkali (mail):
What have we learned? Given a statement of the form, "With respect to custom and practice X, the countries that the US most resembles are China, Iran, and Saudi Arabia," the liberal response is find it horrifying and the conservative response is to find it hilarious. Ladies and gentlemen, I give you American politics in 2008.
1.2.2008 5:15pm
OrinKerr:
tvk writes:
Assuming that we don't go with that interpretation, and that the 8th amendment bars some level of pain infliction, the question is whether lethal injection causes that level. The practice in China may well give us good data on the level of pain caused by different methods of execution, simply because (1) they have more executions overall; and (2) they have more executions using different methods.

Orin would still think that empirical evidence is utterly irrelevant. Another anonVCfan apparently thinks that evidence is relevant, but doesn't think that it qualifies as making the "practices of other countries" relevant.

Orin, if you don't think that the data made available as a result of Chinese practice can even be relevant, then I can only applaud that you really mean what you say. But we are just doing to have to agree to disagree about this.
TVK, as I understand it, every one agrees that if administered correctly, the three-drug cocktail is painless. The question in the United States is (a) whether the risk of inadvertent error is of constitutional magnitude, and (b) if so, how much risk of error is needed to cross the line from constitutionally okay error to constitutionally improper error. What do you think you could learn from Chinese practice that you think is relevant to these questions?
1.2.2008 5:24pm
Tom Cross (www):
Orin,

No, I'm not suggesting that. But, if you're going to look to a particular foreign practice and claim that it is helpful in answering a question, there has to be a good reason why you think that practice is helpful. Every foreign practice isn't helpful for evaluating every question. I don't think any of the Justices have suggested otherwise, either.

Tom
1.2.2008 5:25pm
A.C.:
alkali -

Who said anything of the kind? This sort of distortion is what conservatives find hilarious.

Also the fact that the Scandinavias of the world and the Irans of the world so often seem to find common cause. It makes no sense - clearly a person should pick one or the other and not try to make both work on the same terms. But picking neither is also a valid option.
1.2.2008 5:30pm
OrinKerr:
Alison,

Thanks for the comment. I wasn't suggesting any sort of "consensus" approach, actually; I realize some of the amicus briefs argue that, but it's not what I had in mind. I think we saw in Roper v. Simmons that the "consensus" analysis can be manipulated to reach any desired result; I don't think such things actually influence the Court's results.
1.2.2008 5:35pm
OrinKerr:
Oops, sorry, make that "Ali."
1.2.2008 5:35pm
Bruce Hayden (mail) (www):
At this point, I don't think that the proper question is what do other similarly situated countries do as far as imposing capital punishment, because most of them do not. That really doesn't address the question of whether or not this method of lethal injection is cruel and unusual, because in those countries capital punishment has been banned for any number of moral or other reasons.

Rather, much of this country has decided on imposing capital punishment, and the question then is whether it can be done with less pain and suffering, and in particular, with a low enough level of such that it is not considered cruel. And from that point of view, looking around the world at how other countries impose it may be of interest.

I don't see the Chinese method of shooting the back of the head from close range as being any better. I would guess that what is glossed over are all the times when the execution does not go according to plan, and the one being executed somehow does not die instantly. And, indeed, that is the same problem with the method being attacked, that when it doesn't work correctly, there is too much pain involved.

I think that the French had the right idea during their Revolution, in that the method invented then was fairly quick and assured.
1.2.2008 5:38pm
OrinKerr:
Tom,

My apologies for the error. On the other hand, we are in absolute agreement about this point:
But, if you're going to look to a particular foreign practice and claim that it is helpful in answering a question, there has to be a good reason why you think that practice is helpful.
Like you, I look forward to the day when the Justices do that.
1.2.2008 5:43pm
AF:
Orin,

If your point is that foreign law is of little relevance to question presented in Baze, you are right and few would disagree, whatever their views on the relevance of foreign law as a general matter. But if your point is that "those who believe that foreign practices inform the meaning of the U.S. Constitution" are committed to considering China and the other countries that retain the death penalty but not the countries that have abolished the death penalty, it just doesn't make sense.
1.2.2008 5:43pm
Carolina:
In all seriousness, why not just execute people with a massive overdose of heroin. They would go out smiling, and no one could possibly argue it was cruel. Inexpensive as well.
1.2.2008 5:45pm
Ken Arromdee:
The proper thing to do is to look at countries with similar levels of human rights and decency as the United States. The only two countries I can think of off the top of my head is Japan and Taiwan.

Which itself tells you something. It's easy to lobby against the death penalty in several European countries, either at once or sequentially, when the countries are right next to each other. It's a lot harder to extend your lobbying from Europe to Japan or Taiwan.
1.2.2008 5:46pm
Alison J. Nathan (mail):
Orin - Thanks and apologies for misconstruing your post. But that leaves me wondering if there is really an 8th Amendment case in which Justices look to foreign or international law for something other than confirmation of consensus and actually, as you suggest, "contend that the experience and practices of other countries are relevant to the meaning of our founding charter"? Is that a straw man (at least in the 8th Amendment context)?

Ali
1.2.2008 6:43pm
Chris Newman (mail) (www):
It has long seemed to me that a proper originalist approach to the 8th Amendment would ask, not what was considered "unusual" in America in 1786, but what was the conceptual content of the term "unusual": i.e., how uncommon among what group of people would a practice have to be in order to qualify as "unusual" at any given moment in time. I haven't done any research on this, so I'm talking entirely off the cuff. But it would make sense to me to read the phrase as meaning that, at least, a practice that has been abolished in all or nearly all of the nations that we would view as "civilized" would qualify as "unusual."

That still leaves the separate question of cruelty. Either we must take the position that execution is inherently cruel, or we must decide what about the method of an execution renders it so. Is it simply a question of the degree of attendant bodily pain?
1.2.2008 7:19pm
titus32:
But it would make sense to me to read the phrase as meaning that, at least, a practice that has been abolished in all or nearly all of the nations that we would view as "civilized" would qualify as "unusual."

You seemed to me to make a plausible argument until you inserted the "civilized nation" requirement (one that crops up in a number of comments). How is that defensible from an originalist perspective? Where does it come from?
1.2.2008 7:29pm
tvk:
For a start, the Chinese may well have more data about the failure rates of the three-drug cocktail. Even Texas only executes a relative handful of people a year, far less than an ideal sample size.

True, I do not know if the Chinese keep such records, and also true that US prisons may have a lower failure rate due to more careful administration. Indeed, I do not even know if the Chinese use the three drug cocktail at all. But I would be rather hesitant about deeming such potential information utterly irrelevant.

Moreover, Orin, your claim is hardly limited to the current three-drug cocktail at hand. Your claim, as I read it, is that foreign practices are always irrelevant to constitutional analysis. Thus, if firing squad (used in Utah) was up for consideration, you'd exclude the Chinese evidence too.
1.2.2008 7:33pm
LM (mail):

Unfortunately, I was unable to find anything on the specific cocktail of drugs the "death vans" use to carry out executions in China.

I hear it's fast and effective, but half an hour later you have to kill them again.
1.2.2008 7:45pm
CrazyTrain (mail):
the Chinese practice of charging the family for the bullet is juicy

I don't know if this was raised already, but I imagine that if that were tried here in the US, it would violate the Constitution's prohibition on bills of attainder, or at the very least would be a per se violation of the due process clauses. It is the taking of property (i.e., the cost of the bullet) without due process to the family -- pretty much without any process at all.
1.2.2008 7:54pm
OrinKerr:
Ali Nathan writes:
Thanks and apologies for misconstruing your post. But that leaves me wondering if there is really an 8th Amendment case in which Justices look to foreign or international law for something other than confirmation of consensus and actually, as you suggest, "contend that the experience and practices of other countries are relevant to the meaning of our founding charter"? Is that a straw man (at least in the 8th Amendment context)?
That brings up a broader problem with reliance on foreign law: It can be difficult to predict when the Justices will decided to say it is relevant. In terms of patterns from the cases, I think the biggest pattern tends to be that the Justices cite foreign law when they expect foreign judges to read the Court's decisions particularly closely (especially in cases involving topics like the death penalty and gay rights). I suppose that is consistent with the explanation Justice Stevens has hinted at, that the Justices discuss foreign law as sort of a quid pro quo designed to maximize the Supreme Court's global influence.
1.2.2008 8:47pm
Porkchop:
CrazyTrain wrote:




the Chinese practice of charging the family for the bullet is juicy


I don't know if this was raised already, but I imagine that if that were tried here in the US, it would violate the Constitution's prohibition on bills of attainder, or at the very least would be a per se violation of the due process clauses. It is the taking of property (i.e., the cost of the bullet) without due process to the family -- pretty much without any process at all.


I have heard that the payment is a condition of getting possession of the body for burial. If they don't want the body, they don't have to pay for the bullet. If true, that would probably negate your taking argument. ;-)
1.2.2008 8:59pm
Chris Newman (mail) (www):
titus32:

Well, I guess I'm thinking of the same group of people that Jefferson had in mind when he wrote that "a decent respect to the opinions of mankind" required a public justification for revolution. Perhaps he had in mind all mankind, but I rather suspect that if pressed, he would say he meant to limit it to that portion of mankind that shared enough of the same basic principles underlying the Declaration to render his argument intelligible to them. Perhaps "civilized nations" is not the best term for this constituency, but I can't think of a better one off hand.
1.2.2008 9:27pm
jim:

It has long seemed to me that a proper originalist approach to the 8th Amendment would ask, not what was considered "unusual" in America in 1786, but what was the conceptual content of the term "unusual":


I think that's right, but let me give an alternate theory as to what unusual might mean. Perhaps it refers to unusual in your own society, not unusual across societies. That may seem like an odd restriction, but it flows directly from rule of law principles: no notorious punishments for notorious criminals, no matter if something is cruel or not, you can't use a punishment for one person that you wouldn't institute generally for a class of crimes.

The reason I offer this as a plausible theory is that it seems like many provisions of the constitution have their rhetorical basis in rebuffs directed against particular and egregious abuses by the old crown.
1.2.2008 9:46pm
Respondent:
Perhaps charging for the bullet as a conditional of burial can be said to violate "the corruption of blood" clause.
1.2.2008 10:55pm
NI:
Wouldn't the analogy here be controlling precedent vs. persuasive but non-controlling precedent? American courts may not be obligated to follow the rest of the world, or even that part of the rest of the world that shares our values. But if the entire rest of the world that shares our values has largely reached the same conclusion, there may be persuasive value in their rationale.
1.2.2008 11:11pm
OrinKerr:
AF writes:
If your point is that foreign law is of little relevance to question presented in Baze, you are right and few would disagree, whatever their views on the relevance of foreign law as a general matter. But if your point is that "those who believe that foreign practices inform the meaning of the U.S. Constitution" are committed to considering China and the other countries that retain the death penalty but not the countries that have abolished the death penalty, it just doesn't make sense.
Why not? You may believe so, but I don't understand why you believe that. (Other than that it would not achieve a politically liberal result or impress foreign judges, which may in fact be realistic reasons why such judges would not consult foreign law in these circumstances.)
1.3.2008 12:10am
Youngjae Lee (www):
Orin:

If the consensus analysis is to be principled, I think you would have to survey the same group of entities for roughly similar sorts of questions over time.

Imagine one day that you decide that the only movies you will ever see are the ones that your friends like. Let's say that this approach usually works for you because you always wait for movies to come out on DVDs whereas all your friends like seeing movies as soon as they come out in theaters. You cannot use this approach consistently (by "consistent," I mean consistent with the purpose of your consulting your friends in the first place -- the logic of the approach may be that you trust your friends more than, say, the people who rate movies on netflix or your own instincts after viewing trailers) if the list of your friends changes every time. (Of course, you might have a different list of friends for restaurants, a different list of friends for books to read, but the point is that each list has to stay consistent over time for each question.)

Now further imagine that one day you feel like seeing a movie but the only DVD you can get your hands on is something that none of your friends have seen. What do you do now? What you do NOT do is ask those who have seen it and see what they think -- then, you would be doing something different from what you first set out to do. Perhaps the next best thing for you to do is to ask "What would my friends say about this movie if they saw it?"

The reason your post seems to work as an argument is because you have changed the list of nations to be consulted from Roper to Baze. I am not saying that the Court has been principled about this, but a principled approach that builds on Atkins and Roper would be the one that tries to keep the list of nations to be consulted consistent over time. In the lethal injection context, it happens to be the case that we cannot get that much information out of how to do administer the method of execution by asking, say, the members of the European Union. The precisely wrong thing to do here is to ask how the Chinese do it.

Don't get me wrong. I myself am not a big fan of the "consensus" approach, and I have aired my own skepticism here. I just think that you are being a bit unfair to the other side, and I also think that a principled response to your objection can be developed along the lines I suggest here.
1.3.2008 12:41am
AF:
Why not? You may believe so, but I don't understand why you believe that.

The reason foreign practices are relevant to the Eighth Amendment is that they help determine what types of punishment are unusual in the countries that share our cultural and political traditions. All methods of execution are unusual in those countries. Thus, consideration of foreign practices weighs against the constitutionality of all methods of execution. True, this means that foreign practices is not much help in determining which methods of execution are constitutional and which aren't. But it does not mean that foreign practices can be considered without taking into account those of our peer countries.

Your argument seems to be that, even if foreign practices were relevant to the Eighth Amendment, the practices of countries that have abolished the death penalty would be irrelevant. That strikes me as illogical.
1.3.2008 1:22am
Aaron Armitage (mail):
I haven't seen the real issue about foreign law raised here: as citizens of a republic we are entitled to govern ourselves. Sure, to quote Kerr's characterization of the pro-foreign law position, "what works for other countries may work for us, and we need to be open-minded to the practices and experiences of other nations rather than be arrogant and think other countries have nothing to teach us." But it is for us, the people, and our elected representatives, to make that call. It is not acceptible for the policy preferences of Frenchment to override the policy preferences of Americans. For the Court to have a well-defined group of countries to turn to for precendent makes matters worse, not better, as does any ambition they have to get other countries to ditch their own democratically chosen laws in favor of our laws, which their people had no hand in making.
1.3.2008 2:48am
OrinKerr:
AF,

That's an interesting and fresh theory of the 8th Amendment. I'm curious -- what countries do you think share "our cultural and political traditions"? And what are those traditions, in your view? The English language? The common law? The separation of powers? A federal system? Or do you something else?
1.3.2008 3:35am
OrinKerr:
AF,

I should add one caveat -- the idea that we should factor in a null set seems really odd to me, for the reasons expressed above.
1.3.2008 3:36am
Some dude:
Anesthetize them an harvest their organs.
1.3.2008 10:07am
donaldk2 (mail):
I haven't found the following sentiment, express or implied, in any of the above.

donaldk, J: Categorically, foreign law is inapplicable, and not to be considered in any respect, as to the meaning of the Constitution of the United States.

I am certain that this would be the view of the majority of citizens. I understand of course, that to the double-domed participants in this forum, such an opinion would bear no weight.
1.3.2008 11:28am
Tugh (mail):
Orin, I, too, think you are rather unfair to those who think foreign practices serve a valid purpose in elucidating the meaning of the Eighth Amendment. Here's why. You said in your 4:28pm post:

"The logic is that the issue is how best to do something; presumably you look at instances in which it was done, and then you study how they did it. Leaning how to do something by studying its absence seems like an unusual method to learn how to do something."

However, as Professor Lee pointed out in her 12:41am post, it is unfair to substitute one set of countries (China, etc) for another set of countries (Europe, UK, etc) when discussing the death penalty. In Roper, the Court, whether you agree with it or not (evidently, you don't), selected countries that the Court felt are sufficiently comparable to the US to help it decide whether executing minors is "cruel and unusual." Just because these countries do not have the death penalty does not mean the Court now has to consult the countries that DO have the death penalty to determine whether a specific method of execution is "cruel and unusual." I honestly don't see your logic. Because the countries analyzed in Roper do not have the death penalty at all, means that ALL methods of execution are cruel and unusual in these countries. It is not a "null set", it is a set that leads to the outcome that you dislike (namely, all methods of execution are cruel and unusual in these countries). You cannot simply choose a different set of countries just because you don't like this outcome. It seems to be (please don't take it personally) that it is YOUR approach which appears to be driven by the outcome that you want to achieve. Accordingly, the set of countries in Roper should not be changed for a different set of countries in Baze just because you want to discredit the theory that foreign practices may be useful to understand the current meaning of U.S. constitution.
1.3.2008 11:39am
AF:
Orin,

I appreciate the praise, but you are too kind. In fact, I did not invent this theory of the Eighth Amendment. The Supreme Court has on multiple occasions in the past noted that countries that share our "heritage" or "histor[y]" are of particular relevance to the Eighth Amendment. See Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (plurality) ("The conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by . . . by other nations that share our Anglo-American heritage, and by the leading members of the Western European community."); Roper v. Simmons ("The United Kingdom's experience bears particular relevance here in light of the historic ties between our countries and in light of the Eighth Amendment's own origins.").

Even if all countries were equally relevant, it still wouldn't follow that countries that have abolished the death penalty should be ignored. Again, the reason we look to foreign countries is to see whether a particular practice is usual or unusual in the world. A practice that is used in a minority of countries is still unusual. It may be settled in the US that the death penalty is constitutional, but this doesn't change the fact that, to the extent foreign practices are considered, they weigh against the death penalty in all its forms.

You believe that foreign practices are utterly irrelevant to the Eighth Amendment. Fine; I am not taking issue with that view. I am taking issue with your attempted reductio ad adsurdum argument that if foreign practices were taken into account, we would have to give great weight to the execution methods of China and the other countries that retain the death penalty. That is indeed an untenable conclusion, but it does not follow from the premise that foreign practices are relevant to the Eighth Amendment.
1.3.2008 11:54am
randal (mail):
Orin,

I do not believe that you understand the term "null set". A null set is an empty set.

A set of countries which don't have the death penalty is not an empty set, it is a collection of naughts, which can be analyzed.

In other words, if you get a 100% and a zero, you flunk; or is that not true in your class? Do you throw out all "null scores" before coming up with a grade?
1.3.2008 1:21pm
C. Denlane (mail):
If we want to get a better interpretation of our Constitution, should we not limit our borrowings from foreign customs to those countries that are more advanced and enlightened than we are rather than regress to learning lessons from countries that are less advanced and enlightened? Surely China, for example, with a civilization dating back millenia, has more to teach us than, say, Germany?
1.3.2008 1:48pm
LM (mail):
donaldk2 said:

Categorically, foreign law is inapplicable, and not to be considered in any respect, as to the meaning of the Constitution of the United States.

I am certain that this would be the view of the majority of citizens. I understand of course, that to the double-domed participants in this forum, such an opinion would bear no weight.

And what role are you suggesting this "view of the majority" should play? Because if you think issues of Constitutional jurisprudence should be settled by the will of the majority, we can save law firms millions of dollars in bonuses for their loftiest double-domed recruits by just doing away with the Supreme Court entirely. Of course that might raise its own Constitutional problems, but not if the majority says it doesn't, right?
1.3.2008 4:38pm
OrinKerr:
To be clear, I am not arguing that those who think foreign practices are relevant then MUST take China's practices (or anyone's practices) into account. The Justices who consider foreign law have been very clear that they never have to do anything they do not want to do. Considering foreign law is permitted by them if they feel like doing it, but the ultimate choice as to the legal rule is theirs to make without restriction or unwanted influence of any sort. My point was that this was an interesting line of inquiry for those who think foreign law is relevant. Of course, it is perfectly consistent with what the Justices have said to decline to consider this for any reason -- or no reason at all.

As for those who feel that the absence of a death penalty is akin to a state's conclusion that all methods of execution amount to cruel and unusual punishment, I find this position weak. First, there are many reasons to ban a practice other than because it is cruel and unusual. Second, I don't know of any evidence that countries banned the death penalty because the methods of execution specifically (as compared to the executions themselves) were problematic.
1.3.2008 6:15pm
Bill Poser (mail) (www):
Execution by firing squad is not traditional in China. It has been the usual means of execution only since the Communist Party came to power. Throughout most of Chinese history beginning with the Tang Dynasty in the 7th century CE and ending with fall of the Qing Dynasty in 1911, Chinese law provided five forms of capital punishment, involving three actual forms of execution. The least severe form of execution was by strangulation. The condemned was placed with the back of his head against a post and garrotted. The next most severe form was decapitation with a sword. The most severe form, applied only for truly heinous crimes such as high treason and patricide, was "death by slicing", often romanticized as "the death of a thousand cuts". In fact, it wasn't quite so horrible. The executioner would cut the condemned with a knife a number of times before finally stabbing him or her in the heart. In actual practice the number of cuts was typically on the order of eight, with no more than a minute or two between the initial cut and the fatal thrust. Not nice, but not the prolonged and gory torture it is sometimes made out to be.

The reason that decapitation was regarded as a more severe punishment than strangulation even though strangulation is slower and more painful is that in Confucian philosophy maintaining the integrity of one's body is regarded as an act of filial piety. Decapitation caused the condemned to fail in filial piety and was therefore more shameful.

These three forms of execution yielded five forms of capital punishment because the sentence of strangulation or decapitation could be either before or after the assizes. The assizes in question were appellate courts that met quarterly and not infrequently moderated the penalty awarded by the trial court (which was normally the judge who administered what in Mandarin is called a hsien "county"). A sentence of death "after the assizes" then provided an opportunity for clemency that was not afforded with a sentence of death "before the assizes".

It is also worth noting that no death sentence could be carried out until confirmed personally by the Emperor, so there was always review of a sort.

Chinese law at most periods also provided a penalty that was not quite a death sentence. Among the several forms of exile was "exile to a malarial region". Such regions were not only considered unpleasant but carried with them a not insignificant risk of death by disease.
1.4.2008 1:36am
Tugh (mail):
Orin,

Respectfully, your 6:15pm post is even weaker than your original post. You really didn't address the main substantive criticism of your post: that is, it is unfair to replace the set of countries in Roper with a different set of countries when determining the constitutionality of methods of execution. You sidestep the criticism by now claiming it is merely "an interesting line of inquiry." Respectfully, it is a misleading rather than "interesting" line of inquiry. As several commentators already pointed out, for consistency purposes it's unfair to change the set of countries when discussing the death penalty. There's nothing "interesting" in it, in my view.

Second, when AF pointed out that the countries that should be considered are the ones that share our culutral and political traditions, you ironically commented on his allegedly "new and fresh" interpretation of the Eighth Amendment. But as he correctly replied, this is not a "new and fresh" interpretation, as the Supreme Court itself made a reference to the countries of Anglo-American heritage, European community, UK, etc. In my view, you really did not acknowledge that AF is correct on the issue.

All of it is not meant to suggest that you argue in bad faith. Far from it, I am sure that you argue in good faith and are honest about it. However, I strongly feel that your position on this issue is unfair, for the reasons already explained. Given your often claims that you simply argue what the law is, not what it should be (for example, facial challenge of the laws dealing with the 4th Amendment issues, etc), I believe that it would only be consistent if you acknowledge that the current state of the law is that the Supreme Court will likely consult the experiences of the countries that (in the words of AF) share "our cultural and political traditions" and that there is nothing in the Supreme Court's death penalty jurisprudence to suggest that it should consult the countries which currently practice death penalty. Thanks.
1.4.2008 11:25am