ACT LOCALLY, THINK GLOBALLY, PART TWO: Why Evolving International Standards May Have Rendered the Death Penalty Unconstitutional

By AKHIL REED AMAR ---- Wednesday, Aug. 08, 2001 This column is Part Two of a two-part series by Yale Law professor and author, and FindLaw guest columnist, Akhil Reed Amar on constitutional issues raised by the trial of Timothy McVeigh. Part One, which appeared earlier on this site, argues that transferring venue for McVeigh's trial from Oklahoma to Colorado was unconstitutional. - Ed.

As debates over the death penalty once again heat up, basic constitutional questions are resurfacing: "Cruel" according to whom? "Unusual" by what standard? To what extent should states and localities be bound by emerging national norms? Indeed, to what extent should states, localities, and the federal government be bound by emerging international norms?

Our Constitution's text and history suggest that international views on the death penalty might perhaps be relevant in construing the words "cruel and unusual." Given that legal trends among the fifty states can inform evolving Eighth Amendment standards of decency, why aren't emerging international trends among advanced democracies abroad likewise informative?

Why the Capital Punishment Debate Has Intensified

Several factors explain capital punishment's return to the spotlight. New DNA technology has produced a parade of death row inmates who are incontrovertibly innocent. Journalists and politicians have responded with renewed attention to some of the biggest problems in the criminal justice system: often inadequate defense lawyering, occasionally sloppy forensics, too frequent mistakes in eyewitness identifications, and so on.

In addition, some governors who previously supported capital punishment are now calling for a halt, at least temporarily. General issues of racial profiling intertwine with specific concerns about the racial composition of state and federal death rows.

And, of course, the federal government is now back in the death business, with two executions (including Timothy McVeigh's) in the last two months after a moratorium of almost four decades.

Europe's Reaction to U.S. Executions - and Why We Should Listen

This last development has had momentous implications abroad. Modern European governments have foresworn the death penalty. Indeed, no country that practices capital punishment may join the European Union. In this rule-and indeed, in the very idea of a European Union-we see a new post-Cold War European consciousness emerging, defining itself in part in contradistinction to all things American.

For years, American diplomats abroad could explain away capital punishment as a quirk of American federalism: states make this decision, so please don't blame Congress or the President. But with the high visibility federal execution of Timothy McVeigh coinciding with President Bush's first visit to Europe, Europeans are increasingly challenging Americans on the issue and claiming the moral high ground.

The fact that President Bush rode into office directly from the governorship of Texas, a state notorious for its commitment to capital punishment, has only served to heighten European disdain for America on this issue.

Some Americans may be tempted to sneer back: "America has a more distinguished tradition of democracy and freedom than most of Europe. And if hadn't been for the Yanks' winning two hot world wars and one cold one, there wouldn't even be an EU to dis us. The impudence of the Germans! The arrogance of the French!"

But if in some sense modern Europe is America's child, America should remember that at our Founding, we were Europe's child. Our Framers drew inspiration from the European enlightenment, and our Declaration of Independence appealed to a global audience: Out of "a decent Respect to the Opinions of Mankind . . . let Facts be submitted to a candid World."

Why the Eighth Amendment Invites a Comparative Perspective

In this light, let's reconsider the Eighth Amendment's ban on "cruel and unusual punishments." At the Founding, the death penalty was common in America and throughout Europe. Death for ordinary felonies was not an "unusual" punishment in 1789. But the matter is far different today.

Even though America has maintained widespread use of the death penalty, most other civilized democracies have repudiated it. In this sense, the regular recourse to capital punishment in America is indeed "unusual" today in a way that was not true in 1789-or even in 1989, prior to the rise of a new democratic Europe and the emergence of its strong anti-death consensus.

If a guiding idea underlying the American experiment and the American Constitution is to be a light unto the world, a city on a hill, can Americans ignore our global standing, or allow our criminal justice practices to fall far below those of our sister democracies?

No stretching of constitutional language need be done here-the word "unusual" itself seems to require attention to the way standards of decency evolve over time. Put another way, it invites comparisons and endows them with legal force.

Thus, when a state practice is challenged as "cruel and unusual," judges often look to the practices of other states in the Union. As these practices evolve, a state policy that might have been constitutional at a given time in history can become unconstitutional-because it is much more unusual in sister states-at a later time.

In short, a strong consensus in most States to eliminate or qualify a given punishment may render the imposition of that punishment in outlier States unconstitutional.

The Comparative Eighth Amendment in McCarver

This type of comparison may come to the fore in a case the Supreme Court has agreed to hear next term, McCarver v. North Carolina. McCarver will decide whether states may continue to impose the death penalty on convicts with moderate mental retardation. (That is, persons who are able to tell right from wrong-and thus are properly held criminally responsible for their misdeeds-but who nevertheless have IQs well below normal.)

In 1989, the Supreme Court upheld this practice, in the case of Penry v. Lynaugh. But at that time, most states allowed death in this situation. In the intervening years, the tide has turned.

Fewer than half the states now permit capital punishment of retarded inmates. In recent years, more than a dozen states have explicitly repudiated this practice, and no new states have embraced it. Moreover, in many of the states that formally allow the practice, no retarded person has recently been put to death.

Taken together, these facts mean that capital punishment in cases of moderate retardation is now more "unusual" than it once was. Accordingly, the Supreme Court next term may well rely on this evolving trend to proclaim the practice unconstitutional.

Why International Comparisons Matter, Too

This approach to the Eighth Amendment raises an obvious question: If American judges may properly canvass the evolving principles and practices of democratic states on this side of the North Atlantic, why shouldn't they also consider the evolving norms of other advanced democracies? When regressive States lag, the Constitution brings them up to speed; shouldn't judges also be concerned when America as a whole lags behind the civilized world?

Whether or not courts use international standards to inform Eighth Amendment decisionmaking, surely nothing prevents American politicians and citizens from directly engaging our friends in Europe. In such conversations, both sides might begin to find common ground.

Consider, for example, the recent execution of Timothy McVeigh. Polls indicate that even many Americans generally opposed to capital punishment thought McVeigh deserved to die. There was no real doubt about his guilt; no gross procedural unfairness or shabby lawyering; no complicating issue of race or poverty; no mental retardation; no abusive childhood. Indeed, the man seemed an unrepentant moral monster. His was no fleeting crime of passion but a savage slaughter of innocents, a cowardly war against a peaceful people.

Seen this way, McVeigh appears as a kind of Hitler, though McVeigh wreaked his nazi genocide on an infinitely smaller scale. And, on this view, McVeigh's case resonates not so much with Europe's current anti-death penalty stance, but with its earlier stance that the death penalty is warranted under particularly horrific circumstances.

After all, modern ideas of universal human rights-the very ideas modern Europeans are now hurling against America-took root in the modern soil of Nuremberg, where various Nazis were indeed tried and put to death by a court of law representing democracies on both sides of the Atlantic.

Perhaps, then, some Europeans might allow that in a truly extreme case like McVeigh's, capital punishment is more European and more modern than they first thought. And some Americans might admit, for their part, that for anything less than genocidal mass murder, the death penalty is now highly "unusual" among the world's great democracies, and thus

 * Akhil Reed Amar teaches Constitutional Law at Yale Law School and is the author of The Bill of Rights: Creation and Reconstruction (1998).