Given the right wing tilt of today’s Supreme Court, it is remarkable that death penalty jurisprudence in moving in a somewhat progressive direction. Witness yesterday’s 5-4 decision that a boy who killed at age 17 should not be executed for his crimes (Supreme Court, 5-4, Forbids Execution in Juvenile Crime). The heart of the Supreme Court turnaround lies with Justice Kennedy who, in 1989 ruled with the majority that juvenile executions were societally acceptable. He’s now apparently had a change of heart and wrote one of the majority decisions. One of the critical arguments he relied on in his decision was that every one of the nations that, in 1990, executed minors had turned against such practice. He argued that there was a consensus among nations now against juvenile execution that there hadn’t been in 1989:
…The United States is the only country in the world that continues [to] official[ly] sanction the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the court’s decision in Trop, the court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.”
…Only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo and China. Since then, each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice. In sum, it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty.
It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.
“Hey Kennedy, we ain’t gonna let
no stinkin’ furriners tell us we who we
can fry!” (credit: AP)
This argument in particular enrages Antonin Scalia in his dissent:
…The basic premise of the court’s argument – that American law should conform to the laws of the rest of the world – ought to be rejected out of hand…
Foreign sources are cited today, not to underscore our “fidelity” to the Constitution, our “pride in its origins,” and “our own [American] heritage.” To the contrary, they are cited to set aside the centuries-old American practice of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty. What these foreign sources “affirm” is the justices’ own notion of how the world ought to be, and their diktat that it shall be so henceforth in America. The court’s parting attempt to downplay the significance of its extensive discussion of foreign law is unconvincing. “Acknowledgment” of foreign approval has no place in the legal opinion of this court unless it is part of the basis for the court’s judgment – which is surely what it parades as today.
Running through Scalia’s argument is a rampant xenophobia (is there a legal term for “hatred of foreign legal systems?”), a deep mistrust and rejection of world public opinion and international jurisprudence. It is of a muchness with current U.S. rejection of all international legal bodies such as the International Court of Criminal Justice. In Scalia’s world, the ‘furriners’ are soft-headed, lily livered cowards who like to coddle criminals, psychopaths and other miscreants. To rely on such authorities to craft a decision on U.S. law, for Scalia is a heinous offense.
We should also point out the distortions and twisted terms of Scalia’s dissent used to try to demean and devalue Kennedy’s argument. Scalia mistakenly paraphrases his position as contending “American law should conform to the laws of the rest of the world.” This is certainly not what Kennedy is arguing. He is merely saying that if no other nations in the entire world execute minors, this is a fact we should take notice of in writing this decision. “Foreign sources [note the ominous use of “foreign”] are cited today…to set aside [the American jury system]. Again, those ominous foreigners are attempting to turn us away from our own “American heritage.” How’s that for legal xenophobia? And finally, Scalia’s continuing paranoia manifest itself here: “Foreign sources affirm…their diktat that it shall be so henceforth in America.” Note that ominous Bolshevik-like term diktat. Whenever you want to appeal to American nativist sentiment you need only resort to such incendiary terms to get hackles properly raised.
I’d say that Scalia must’ve really loved Invasion of the Body Snatchers because his own paranoia is reflected in that scary xenophobic film allegory as well.