Having transitioned from international criminal into Constitutional Law, I wanted to pose this question- how does/can international standards of proper punishment play into our country?
For example, in Roper v. Simmons, Anthony Kennedy's majority opinion (5-4) ruled that it was unconstitutional to administer the death penalty to anyone 18 or younger, citing scientific and psychological studies based around maturity and ability to comprehend the full scope of an action. He also cited a group of the only countries to execute a convicted person since 1990: Iran, Pakistan, Nigeria, Yemen, Saudi Arabia, China, the Democratic Republic of Congo- and the United States.
Using the cruel and unusual punishment theory, it is clear that in this company, capital punishment is very unusual in the 21st century. However, many judges and lawyers in the United States today gave Kennedy a lot of grief for the inclusion of international norms in a national judicial opinion. Of course, since the US has always had capital punishment, and lethal injection has been ruled to be 'not cruel,' how can we deem execution unusual, unless we take a step back and look at the international community?
I don't think we can. It is necessary since the prevalence of an alternative idea is not present in our nation itself. We say we are diverse; however, our society as a whole does not reflect this. We in some sense are very ethnocentric and its a very bad habit that we need to break. For example, the bombing in Boston shook many individuals, but these individuals do not realize that this may be routine or frequent in other countries. We are not the only people with brains in this world.
ReplyDeleteI think it may be possible to deem capital punishment cruel and repeal such laws without an appeal to international standards. But, I think Kennedy made the right decision, as the U.S. is not an insulated entity, but a member of a mutually dependent international community, although some citizens and the government seem to act otherwise on occasion. There does seem to be conflict within this country as most states do not use capital punishment, but a few do, and the existence of a Federal death penalty may send the wrong message to the international community. Some people are near absolute in their rejection of the death penalty except in cases of extreme crimes, such as genocide. I wonder if this might be contradictory.
ReplyDeleteI think we might be able to deem it unusual on the basis that keane spoke of. If most states don't have the death penalty and haven't used it in awhile, then the minority is unusual nowadays. And although I see the point of the judges and lawyers who said Kennedy should not have included the foreign states as a part of his argument. It seems like a move in the right direction, if we want to participate around the world then we need to know how they work and why. Looking at our legal system and the legal system of other countries is a great way to move forward.
ReplyDelete"Unusual" is a fraught term, of course, and there is always considerable resistance in the U.S. to learning from the rest of the world.
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