Will the U.S. Supreme Court Use International and Foreign Law Again?

Yesterday, the U.S. Supreme Court heard oral arguments in a consolidated case regarding whether it is cruel and unusual punishment within the meaning of the Eighth Amendment to the U.S. Constitution to sentence a juvenile to life in prison without the possibility of parole. The two cases are Graham v. Florida, No. 08-7412, in which Terrance Graham was sentenced to life for armed burglary at age 16 and a probation violation at age 17, and Sullivan v. Florida, No. 08-7621, in which a 13-year-old was sentenced to life in prison for the rape of an elderly woman.

As many readers of this blog will recall, the U.S. Supreme Court has frequently turned to international and foreign law to inform its Eighth Amendment jurisprudence.  The Court's use of foreign and international law in this area can be traced to Trop v. Dulles (1958), where the Supreme Court said that it must look to “evolving standards of decency” in assessing whether a particular punishment is cruel and unusual within the meaning of the Eighth Amendment.  In the most recent case involving cruel and unusual punishment for juveniles, Roper v. Simmons (2005), the U.S. Supreme Court held that imposition of the death penalty on juveniles violates the Eighth Amendment because offenders under 18 are less responsible for their crimes than adults, partly because they are less mature and more vulnerable to peer pressure. In coming to that conclusion, Justice Kennedy, writing for the majority, referred to the fact that the U.S. is the only country in the world that officially sanctions the death penalty for juveniles. In support of the international law ban on the death penalty for juveniles, Justice Kennedy cited to U.N. Convention on Rights of the Child (CRC), the International Covenent for Civil and Political Rights (ICCPR), the American Convention on Human Rights, and the African Charter on Rights and Welfare of the Child.  Justice O'Conner dissented in Roper, but allowed for the proper use of international and foreign law: “This inquiry reflects the special character of the Eighth Amendment, which, as the Court has long held, draws its meaning directly from the values of a maturing society.”  While American law is “distinctive,” “this Nation’s evolving understanding of human dignity is neither wholly isolated from nor inherently at odds with, the values prevailing in other countries.”  By contrast, Justice Scalia’s dissent argued that the meaning of the Eighth Amendment should not be determined by the views of five Members of the Court and “like-minded foreigners.”  He accused the majority of not listening to the views of American citizens and instead allowing the views of the international community to take center stage.  While admitting that the U.S. shares a common legal heritage with the U.K. and that U.S. courts often consult English sources in constitutional interpretation, Justice Scalia maintains that the Supreme Court should retain the original meaning of the Constitution and not resort to evolving standards of decency.

A sentence of life imprisonment without the possibility of parole for juveniles does appear to be condemned by the international community. In a 2005 joint report issued by Amnesty International and Human Rights Watch, these human rights organizations contended that the United States stands virtually alone in the world in allowing juveniles to be sentenced to life in prison without the possibilty of parole.  By 2009, a group of human rights organizations wrote in a letter to the Committee on the Elimination of Racial Discrimination that "no other country in the world has imposed this sentence on juvenile." Such a practice is probihited under article 37 of the CRC, but the U.S. has yet to ratify that treaty.  Article 14 of the ICCPR, to which the U.S. is a party, requires that the age of a youth be taken into account in criminal procedures. Questioning during yesterday's oral argument suggested that some of the justices may be more willing to require the age of the offender to be taken into account in sentencing rather than imposing an across-the-board ban on life sentences without parole for juveniles.

Whether the U.S. Supreme Court will consider international law and foreign law and practice in its decision is an open question.  Both Chief Justice Roberts and Justice Alito have joined the Court since Roper v. Simmons and both expressed views during their confirmation hearings that were not particularly favorable to the use of foreign and international law in constitutional interpretation.  Likewise, Justice Sotomayor is new to the Court and her views are somewhat unclear.  She stated during her confirmation hearings that the justices should not rely on foreign law as precedent, but has stated elsewhere that justices should be open to good ideas that come from foreign sources, suggesting that she does see a role for foreign and international law in constitutional interpretation. (And Justice O'Conner, who was favorably disposed to the use of foreign and international law in this context, has since left the bench.)

(cgb)