William & Mary Bill of Rights Journal William & Mary Bill of Rights Journal
Volume
13 (2004-2005)
Issue 2
Article 2
December 2004
Introduction: Death Penalty and International Law Introduction: Death Penalty and International Law
Davison M. Douglas
William & Mary Law School
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Davison M. Douglas,
Introduction: Death Penalty and International Law
, 13 Wm. & Mary Bill Rts.
J. 305 (2004), https://scholarship.law.wm.edu/wmborj/vol13/iss2/2
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DEATH
PENALTY
AND
INTERNATIONAL
LAW
Davison
M.
Douglas*
In
2004,
the
United
States
celebrated
the
fiftieth
anniversary
of
the
Supreme
Court's
decision
in
Brown
v.
Board
of
Education
in
which
the
Court
declared
de
jure
segregated
schools
unconstitutional.
1
In
recent
years,
many
legal
historians
have
noted
the
influence
of
international
attitudes
towards
America's
persistent
embrace
of
racial
segregation
on
the
Court's
deliberations
in
Brown.
Indeed,
the
brief
of
the
United
States
in
the
Brown
case
was
devoted
in
significant
measure
to
the
harm
to
America's
foreign
policy
interests
that
resulted
from
the
country's
retention
of
de
jure
racial
segregation.
3
Will
international
attitudes
have
a
similar
impact
on
this
country's
use
of
the
death
penalty?
This
symposium
does
not
address
that
question.
But
the
articles
that
comprise
this
symposium
do
argue
that
there
is
a
non-trivial
relationship
between
international
legal
norms
and
the
operation
of
the
death
penalty
in
the
United
States.
These
articles
explore
the
various
ways
in
which
international
norms
do
affect
the
use
of
the
death
penalty
in
this
country.
Mark
Warren,
in
his
article
Death,
Dissent
and
Diplomacy:
The
U.S.
Death
Penalty
as
an
Obstacle
to
Foreign
Relations,
explores
in
part
the
impact
of
America's
retention
of
the
death
penalty
on
American
foreign
policy.
4
Warren
notes
that
some
former
U.S.
diplomats
have
cited
America's
retention
of
the
death
penalty
as
a
hindrance
to
the
nation's
interests.
In
2003,
for
example,
Harold
Koh
and
Thomas
Pickering
wrote:
"For
a
country
that
aspires
to
be
a
world
leader
on
*
Arthur
B.
Hanson
Professor
of
Law,
William
&
Mary
School
of
Law.
347
U.S.
483
(1954).
2
See,
e.g.,
MARY
L.
DUDZiAK,
COLD
WAR
CIVIL
RIGHTS:
RACE
AND
THE
IMAGE
OF
AMERICAN
DEMOCRACY
79-114
(2000).
3
The
United
States
Government's
brief
read
in
part:
Other
peoples
cannot
understand
how
such
a
practice
can
exist
in
a
country
which
professes
to
be
a
staunch
supporter
of
freedom,
justice,
and
democracy.
The
sincerity
of
the
United
States
in
this
respect
will
be
judged
by
its
deeds
as
well
as
by
its
words
....
[T]he
continuance
of
racial
discrimination
in
the
United
States
remains
a
source
of
constant
embarrassment
to
this
Government
in
the
day-to-day
conduct
of
its
foreign
relations;
and
it
jeopardizes
the
effective
maintenance
of
our
moral
leadership
of
the
free
and
democratic
nations
of
the
world.
Brief
for
the
United
States
as
Amicus
Curiae
at
8,
Brown
(No.
1,
2,
4,
10),
quoted
in
Mark
Warren,
Death,
Dissent
and
Diplomacy:
The
U.S.
Death
Penalty
as
an
Obstacle
to
Foreign
Relations,
13
WM.
&
MARY
BILL
RTS.
J.
309,
317
(2004).
"
Warren,
supra
note
3.
WILLIAM
&
MARY
BILL
OF
RIGHTS
JOURNAL
human
rights,
the
death
penalty
has
become
our
Achilles'
heel."
5
Nine
former
diplomats
filed
an
amicus
brief
with
the
United
States
Supreme
Court
in
McCarver
v.
North
Carolina,
a 2001
case
involving
the
execution
of
mentally
retarded
defen-
dants,
arguing
that
such
executions:
strain
diplomatic
relations
with
close
American
allies,
provide
diplomatic
ammunition
to
countries
with
demonstrably
worse
human
rights
records,
increase
U.S.
diplomatic
isolation,
and
impair
other
United
States
foreign
policy
interests....
The
degree
to
which
this
issue
has
strained
our
diplomatic
relations
can
be
measured
by
the
extent
to
which
important
bilateral
meetings
with
our
closest
allies
are
now
consumed
with
answering
diplomatic
demarches
challenging
these
practices.
The
persistence
of
this
practice
has
caused
our
allies
and
adversaries
alike
to
challenge
our
claim
of
moral
leadership
in
international
human
rights.
If
this
Court
were
again
to
sustain
the
practice
of
executing
people
with
mental
retardation,
it
would
provide
fresh
anti-American
diplomatic
ammunition
to
countries
who
have
exhibited
far
worse
human
rights
records.
6
Warren
discusses
other
incidents
as
well,
such
as
the
cancellation
of
a
visit
between
Mexican
President
Vincente
Fox
and
American
President
George
W.
Bush
in
protest
of
the
American
execution
of
a
Mexican
citizen
in
violation
of
his
consular
rights.
7
In
fact,
one
important
issue
involving
the
interplay
of
international
legal
norms
and
the
death
penalty
in
the
United
States
has
been
the
question
of
compliance
with
the
Vienna
Convention
on Consular
Relations
that
requires
consular
notice
when
a
foreign
national
is
facing
criminal
charges.
8
Both
John
Quigley,
in
his
article
Suppressing
the
Incriminating
Statements
of
Foreigners,
9
and
Linda
Malone,
in
her
article
From
Breard
to
Malvo:
Incompetency
and
Human
Rights
on
the
Fringes
of
'
Harold
Hongju
Koh
&
Thomas
R.
Pickering,
American
Diplomacy
and
the
Death
Penalty:
For
a
Country
That
Aspires
to
Be
a
World
Leader
in
Human
Rights,
The
Death
Penalty
Has
Become
Our
Achilles'
Heel,
FOREIGN
SERV.
J.,
Oct.
2003,
at
19,
25,
quoted
in
Warren,
supra
note
3,
at
315.
6
Brief
of
Amici
Curiae
Diplomats,
McCarver
v.
North
Carolina,
532
U.S.
941
(2001)
(No.
00-8727),
2001
WL
648607,
at
*5-6,
*12,
quoted
in
part
in
Warren,
supra
note
3,
at
315-16.
7
Warren,
supra
note
3,
at
326-27.
8
Vienna
Convention
on
Consular
Relations,
Apr.
24,
1963,
art.
36,
para.
1,
21
U.S.T.
77,
596
U.N.T.S.
261.
'
John
Quigley,
Suppressing
the
Incriminating
Statements
of
Foreigners,
13
WM.
&
MARY
BILL
RTs.
J.
339 (2004).
[Vol.
13:305
2004]
INTRODUCTION:
DEATH
PENALTY
&
INTERNATIONAL
LAW
307
the
Death Penalty,
0
explore the
operation
of
the
Vienna
Convention
in American
death
penalty
cases.
The
Convention requires
that foreign
nationals
arrested
on
criminal
charges
be
granted access
to
their
home-state
consul
and
notified
by
the
detaining
authorities
of
their
right
to
such
access.
But
in several
death
penalty
cases, this
consular
notice
requirement
has
not
been
met,
provoking
intense
inter-
national displeasure.
Quigley's
article
explores
"whether
consular
access
involves
a
judicially
cognizable
right,
whether the
information
about
consular
access
must
be
provided
prior
to
interrogating,
and
whether
principles
of
international
law
call
for
the
suppression
of
a
statement
made
by
a
foreign
national
who
was
not
informed
about
consular
access."'"
Malone,
in
her
article,
also
explores
the
application
of
the
Vienna Convention
on
Consular
Relations
by
reviewing the
way
in
which
various
courts
in
recent
years
have
treated
violations
of
the
convention. For
example,
in
2004,
the
International
Court
of
Justice
(ICJ)
found
that
the
United States
had
failed
to
meet
the
consular
notice
requirements
of
the
Vienna Convention
with
respect
to
several dozen
Mexican
nationals.
The
court
in
that
case ordered
the
United
States
to provide
"review
and
reconsideration
of
the
convictions
and
sentences
of
the
Mexican
nationals..,
by
taking
account"
of
the
consular
notification
violations,
but
left
unanswered
several
questions concerning the
relief
a
criminal
defendant
is
entitled
to
receive
when
consular notification
rights
have
been
violated.1
2
In
response,
the
Bush
Administration directed
the
Texas
state
courts
to
comply
with
the
ICJ
ruling
by
providing
a
hearing for
one
of
the
affected
Mexican
nationals, but
then
withdrew
the United
States
from
that
part
of
the treaty
that
grants
the
ICJ
enforcement
authority.
3
Another
central
issue involving
the
interplay between
international
law and
the
death
penalty
in
the
United
States
has
been
the
question
of
extradition.
William
Schabas, in
his
article
International
Law,
Politics,
Diplomacy
and
the
Abolition
of
the
Death
Penalty,
4
argues
in part
that
"most
developed
countries
now
refuse
to
extradite
fugitives
to
the
United
States
without
assurances
that capital punishment
will
not
be
imposed."'"
Schabas
also
notes
that
some
foreign nations
have
agreed
to
provide
certain
evidence
to
the
United States
in
connection
with
the
prosecution
of
9/11
terrorists
only
after
"receiving
an
assurance
that
the
information
would
not
be
used
to
seek
or
impose the death penalty."'
6
In
a similar
manner,
Schabas
notes
10
Linda
A.
Malone,
From
Breard
to
Atkins
to
Malvo:
Legal
Incompetency
and
Human
Rights Norms
on
the
Fringes
of
the
Death
Penalty,
13
WM.
&
MARY
BILLRTS.
J.
363
(2004).
"
Quigley,
supra
note
9,
at
339.
12
Avena
and
Other
Mexican
Nationals
(Mex.
v.
U.S.),
2004
I.C.J.
128
(Mar.
31),
para.
153(9),
available
at
http://www.icj-cij.org.
"3
Charles
Lane,
Texas
Accuses
Bush
of
Trampling
Its
Autonomy
in
Death Penalty
Case,
WASH.
POST,
Mar.
28,
2005,
at
A2.
14
William
A.
Schabas,
International
Law,
Politics,
Diplomacy
and
the
Abolition
of
the
Death
Penalty,
13
WM.
&
MARY
BILL RTS.
J.
417
(2004).
"s
Id.
at
422.
16
Id.
at
443.
WILLIAM
&
MARY
BILL
OF
RIGHTS
JOURNAL
that
the
European
Union has
decided
to
allow
the
United
States
to
receive
information
on suspects
from
the
Europol
law
enforcement
agency
only
on
the
condition
that
the
suspects
not
be
subjected
to
the
death
penalty.'
7
Finally,
Brian
Tittemore,
in
his
article
The
Mandatory
Death
Penalty
in
the
Commonwealth
Caribbean
and
the
Inter-American
Human
Rights
System,
8
explores
the interaction
between
international
law
and
domestic
capital
punishment
law by
probing
the
influence
of
the
decisions
of
international
human rights
tribunals
upon
the
legal
practices
of
various
Caribbean
nations.
Tittemore
argues
that
international
legal
standards
have
influenced
domestic
legal
practices,
noting,
for
example,
that
Caribbean
courts
on
occasion
have
drawn
"upon
the
terms
of human
rights
instruments
and
the
associated
decisions
of
their
supervisory
institutions
in
order
to
give
informed
and
progressive
meaning
and
effect
to
the
rights
and
freedoms
enshrined
in
regional
constitutions."'
9
In
recent
years,
the
interplay
of
international
legal
norms
and
America's
domestic
law
-
particularly
its
constitutional
law
-
has
been
highly
controversial,
even
provoking
congressional
efforts
to
bar
reliance
on
non-domestic
legal
sources
to
interpret
the
U.S.
Constitution.
2
"
For
example,
in
the
United
States
Supreme
Court's
recent
decision
in
Roper
v.
Simmons
declaring unconstitutional
the
death
penalty
for persons
under
the
age
of
eighteen
at
the
time
their
crimes
were
committed,
the Court
made
note
of
"the
stark
reality
that the
United
States
is the
only
country
in
the
world
that
continues
to
give
official
sanction
to
the
juvenile
death
penalty."'"
The
Court's
decision
in
Roper
signals
that the Court
will likely
continue
to
find
international
norms
relevant
when
assessing
the
constitutionality
of
the death
penalty.
17
Id.
at
444.
S
Brian
D.
Tittemore,
The
Mandatory
Death
Penalty
in
the
Commonwealth
Caribbean
and
the
Inter-American
Human
Rights
System:
An
Evolution
in
the
Development
and
Implementation
of
International
Human
Rights
Protections,
13
WM.
&
MARY BILL
RTS.
J.
445
(2004).
'9
Id.
at
519.
20
See,
e.g.,
Marsha
F.
Davis,
Don't
'Gag'
U.S.
Courts,
NAT'L
L.J.,
Aug.
23,
2004
(discussing
House
Resolution
568
which would
bar
consideration
of
foreign
or
international
legal
precedents
in
interpreting
the
U.S.
Constitution);
Tim Wu,
Foreign
Exchange:
Should
the
Supreme
Court
Care
What
Other
Countries
Think?,
Slate (reporting
a
speech
by
Justice
Scalia
in
which
he
criticized
the
reliance
of
American
constitutional
opinions
on
foreign
precedents),
at
http://slate.msn.comid/2098559
(Apr.
9,
2004);
Anne-Marie
Slaughter,
Courting
the
World:
U.S.
Judges
Must
Overcome
a
Culture
of
Legal
Isolationism
-
Or
Risk
Being
Left
Behind,
FOREIGN
POL'Y,
March-Apr.
2004,
at
78
(approving
of
reliance
on
foreign
precedents
in
American
legal
decision
making).
2
Roper
v.
Simmons,
125
S.
Ct.
1183,
1198
(2005).
The
Court
in
Roper
also
noted
that
Article
37
of
the United
Nations
Convention
on
the
Rights
of
the
Child,
which
every
nation
in
the
world
except
the
United
States and
Somalia
has
ratified,
contains
a
prohibition
on
the
juvenile
death
penalty.
Id.
at 1199.
This
aspect
of
the
Court's
decision
provoked
a
vigorous
rejoinder from
Justice
Scalia.
Id.
at
1225-28
(Scalia,
J.,
dissenting).
[Vol.
13:305
