EU Policy On The Death Penalty
No. 00-8727
IN THE
Supreme Court of the United States
OCTOBER TERM, 2000
ERNEST PAUL MCCARVER,
Petitioner,
v.
STATE OF NORTH CAROLINA,
Respondent.
ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF NORTH CAROLINA
BRIEF OF AMICI CURIAE DIPLOMATS MORTON ABRAMOWITZ, STEPHEN W. BOSWORTH,
STUART E. EIZENSTAT, JOHN C. KORNBLUM, PHYLLIS E. OAKLEY, THOMAS R. PICKERING,
FELIX G. ROHATYN, J. STAPLETON ROY, AND FRANK G. WISNER IN SUPPORT OF PETITIONER
|
STANLEY S. HERR
UNIVERSITY OF MARYLAND SCHOOL OF LAW
515 W. Lombard Street
Baltimore, Md. 21201
(410) 706-3191
|
HAROLD HONGJU KOH
Counsel of Record
JAMES J. SILK
DEENA HURWITZ
ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC
YALE LAW
SCHOOL
127 Wall Street
New Haven, Ct. 06511
(203) 432-4932
Counsel for Amici Curiae
|
June 8, 2001
TABLE OF CONTENTS
TABLE
OF AUTHORITIES
INTEREST
OF AMICI CURIAE
SUMMARY
OF ARGUMENT
ARGUMENT
I.
THE EXECUTION OF PEOPLE WITH MENTAL RETARDATION IS INCONSISTENT WITH EVOLVING
GLOBAL STANDARDS OF DECENCY II.
THE GROWING INTERNATIONAL CONSENSUS AGAINST THE EXECUTION OF PEOPLE WITH MENTAL
RETARDATION HAS INCREASINGLY ISOLATED THE UNITED STATES DIPLOMATICALLY III.
IN EVALUATING "EVOLVING STANDARDS OF DECENCY" UNDER THE EIGHTH AND FOURTEENTH
AMENDMENTS, THIS COURT SHOULD WEIGH INTERNATIONAL AS WELL AS DOMESTIC OPINION
CONCLUSION
TABLE OF AUTHORITIES
Cases
Coker v. Georgia, 433 U.S. 584 (1977) 13
Crosby
v. National Foreign Trade Council, 530 U.S. 363 (2000) 12
Enmund v. Florida,
458 U.S. 782 (1982) 13
Estelle v. Gamble, 429 U.S. 97 (1976) 6, 13
Ford
v. Wainright, 477 U.S. 399 (1986) 13
The Paquete Habana, 175 U.S. 677 (1900)
1, 7
Penry v. Lynaugh, 492 U.S. 302 (1989) 16, 18
Reynolds v. United
States, 98 U.S. 145 (1878) 15
United States v. Smith, 18 U.S. (5 Wheat.) 153
(1820) 1
Stanford v. Kentucky, 492 U.S. 361 (1989) 14
Thompson v.
Oklahoma, 487 U.S. 815 (1988) 13, 18-19
Trop v. Dulles, 356 U.S. 86 (1958)
6, 13, 15
Washington v. Glucksberg, 521 U.S. 702 (1997) 15
Constitutional Provisions
U.S. Const. amend. VIII 2, 13
U.S. Const. amend. XIV 2, 13, 15
Statutes and Rules
Conn. S. 1161, 2001 Reg. Sess. (2001) 16
Fla. S. 238, 2001 Reg. Sess. (2001) 16
Mo. S. 267, 2001 Sess. (2001) 16
Tex. H.B. 236, 77th Sess. (2001) 16
U.S. Supreme Court Rule 37.6 1
Other Sources
Gay Alcorn, News Review, Sydney Morning
Herald, May 12, 2001, at 37 11
American Association on Mental Retardation,
Mental Retardation: Definition, Classification, and Systems of Support (9th ed.
1992) 5
Bill Bell Jr., Legislation Sent to Holden Would Ban Death Penalty
for Mentally Retarded, St. Louis Post Dispatch, May 12, 2001, at 11 16
Harry
A. Blackmun, The Supreme Court and the Law of Nations, 104 Yale L.J. 39, 45-46
(1994) 14, 15
Steve Brewer & Mike Tolson, A Deadly Distinction: Part
III, Houston Chronicle, Feb. 6, 2001, at A6 17
Bush Campaign Unfazed by
Death-Penalty Debate; Gore Also Favors Execution, Telegraph Herald (Dubuque,
Iowa), Aug. 8, 2000, at A7 17
Lisa Chedekel, Senate OK's Changes in Death
Penalty, The Hartford Courant, June 6, 2001, at A3 16
A Cultural Gulf,
International Herald Tribune, May 14, 2001, at 8 11
The Daily Telegraph
(London), March 8, 2001, at 15, 9-10
Stephen Davis, The Death Penalty and
Legal Reform in the PRC, 1 Journal of Chinese Law 303, 307 (1987) 12
Declaration of Independence, para. 1 14-15
Eric Dyer, Death Penalty Measure Passes in State Senate: The Legislation Would
Prohibit Prosecutors from Seeking Capital Punishment for Anyone with an IQ of
70 or Below, News-Record (Greensboro, N.C.), April 24, 2001, at A1 19
The
Economist, A Covenant with Death, May 12, 2001, at 34 11
Editorial, Europe's
View of the Death Penalty, New York Times, May 13, 2001, § 4, at 12 11
Rodney Ellis, The Hard-Line Punishment Texans Don't Support, New York Times,
June 2, 2001, at A13 18
European Union, EU Policy on the Death Penalty: EU
Demarche on the Death Penalty, Feb. 25, 2000 10
European Union, Letter to
Nevada Governor Guinn on Behalf of Thomas Nevius, Mar. 26, 2001 10
European
Union, Press Release, May 10, 2001 9
Extrajudicial, Summary or Arbitrary
Executions: Report of the Special Rapporteur, U.N. GAOR, Hum. Rts. Comm., 57th
Sess., U.N.Doc.
E/CN.4/2001/9 (2001) 9
Extrajudicial, Summary or Arbitrary Executions: Report of the Special
Rapporteur, U.N. GAOR, Hum. Rts. Comm., 56th Sess., U.N.Doc.
E/CN.4/2000/3 (2000) 8
Extrajudicial, Summary
or Arbitrary Executions: Report by the Special Rapporteur, U.N. GAOR, Hum. Rts.
Comm., 54th Sess., para. 145, U.N.Doc.
E/CN.4/1998/68/Add.3 (1998) 8
Extrajudicial, Summary or Arbitrary
Executions: Report by the Special Rapporteur, U.N. GAOR, Hum. Rts. Comm., 51st
Sess., para. 380, U.N.Doc.
E/CN.4/1995/61 (1994) 6
Geneva Convention Relative to the Protection of Civilian Persons in Time of
War, August 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365
19
Louis Henkin, A Decent Respect to the Opinions of Mankind, 25 J. Marshall
L. Rev. 215 (1992) 14
Implementation of the Safeguards Guaranteeing
Protection of the Rights of Those Facing the Death Penalty, E.S.C. Res. 1989/64,
U.N. ESCOR,
U.N.Doc. E/RES/1989/64 (1989) 7
Marcus Mabry, A Bad Case of Euro Envy; The Rift Between U.S. and Old World
Values is Threatening America's Claim to Global Leadership,
Newsweek, Apr. 16, 2001, at 2 10-11
Sheryl McCarthy, The Mentally Retarded Should Be Spared the Chair, Newsday,
April 2, 2001, at A2 17
National Briefing South: Florida: Legislature Bans
Execution of Mentally Retarded, New York Times, May 5, 2001, at A9 16
National Briefing Southwest: Texas: Compromise on Death Penalty, New York
Times, May 25, 2001, at A16 16
The Question of the Death Penalty, Hum. Rts.
Comm. Res. 2001/68, U.N. GAOR, 57th Sess., U.N.Doc. E/CN.4/RES/2001/68 (2001) 8
The Question of the Death Penalty, Hum. Rts. Comm. Res. 2000/65, U.N. GAOR,
56th Sess., U.N.Doc. E/CN.4/RES/2000/65 (2000) 8
Question of the Death
Penalty, Hum. Rts. Comm. Res. 1999/61, U.N. GAOR, 55th Sess., U.N.Doc.
E/CN.4/RES/1999/61 (1999) 8
Felix G. Rohatyn, Op-Ed, America's Deadly Image,
Washington Post, Feb. 20, 2001, at A23 10
Sparing the Retarded Law, St.
Louis-Dispatch, May 16, 2001, at B6. 16
Henry Weinstein, Death Penalty
Moratorium Gaining Unlikely Adherents, Los Angeles Times, Oct. 17, 2000 at A1 17
Jim Yardley, Texas Death Bill Is in Hotter Spotlight, New York Times, June
5, 2001 at A18 16-17
Jim Yardley, Texas Set to Shift in Wake of Furor Over
Death Penalty, New York Times, Jun. 1, 2001, at A1 17
INTEREST OF AMICI CURIAE1
Amici curiae have served as diplomats representing the government of the
United States at home and abroad in both Republican and Democratic
administrations.2
Four of their number (Abramowitz, Pickering, Roy, Wisner) retired with the rank
of Career Ambassador, the highest rank that can be awarded to members of the
United States Foreign Service. Amici submit this brief as friends of the Court
to advise regarding the customs of nations with which amici are familiar, and
the likely impact the continuing administration of the death penalty against
individuals with mental retardation would have upon our diplomatic relations
with foreign governments and upon our standing in the international
community.3
Some of the signatories to this brief oppose the administration of the death
penalty principally with respect to the execution of people with mental
retardation; others oppose its application in all circumstances. But all
amici agree upon three basic principles: first, that the current United States
practice of executing people suffering from mental retardation is inconsistent
with evolving international standards of decency; second, that North Carolina's
continuation of the practice in this case would strain diplomatic relations with
close American allies, increasing America's diplomatic isolation and impairing
other United States foreign policy interests; and third, that these
considerations (along with other arguments presented by petitioner McCarver and
other amici supporting petitioner) should lead this Court to conclude that the
practice of executing people with mental retardation offends our "evolving
standards of decency" and hence, the Eighth and Fourteenth Amendments of the
United States Constitution. U.S. Const. amends. VIII, XIV.
Amici curiae include the following:4
Morton Abramowitz is a Senior Fellow at The Century Foundation. A
Career Ambassador, during his diplomatic career, he served as U.S. Ambassador to
Turkey, Assistant Secretary of State for Intelligence and Research, U.S.
Ambassador to the Mutual and Balanced Force Reduction Negotiations in Vienna,
U.S. Ambassador to Thailand, and Deputy Assistant Secretary of Defense for
Inter-American, East Asian and Pacific Affairs. He has also served as
President of the Carnegie Endowment For International Peace and as Acting
President of the International Crisis Group.
Stephen W. Bosworth is Dean of the Fletcher School of Law and
Diplomacy at Tufts University. During his diplomatic career, he served as U.S.
Ambassador to the Republic of Korea, U.S. Ambassador to the Philippines, U.S.
Ambassador to Tunisia, Director of the State Department Policy Planning Staff,
Principal Deputy Assistant Secretary for Inter-American Affairs, and Deputy
Assistant Secretary for Economic Affairs. He has also served as Executive
Director of the Korean Peninsula Energy Development Organization (KEDO) and
President of the United States-Japan Foundation.
Stuart E. Eizenstat is a partner at the Washington, D.C. law firm of
Covington and Burling. During his career in public service, he served as
Deputy Secretary of the Treasury, Undersecretary of State for Economic, Business
and Agricultural Affairs, Undersecretary of Commerce for International Trade,
U.S. Ambassador to the European Union, Special Representative of the President
and the Secretary of State on Holocaust-Era Issues, Chief Domestic Policy
Adviser to the President and Executive Director of the White House Domestic
Policy Staff.
John C. Kornblum is Chairman of Lazard & Co. GmbH in Germany.
During his diplomatic career, he served as U.S. Ambassador to the Federal
Republic of Germany, Assistant Secretary of State for European and Canadian
Affairs, Senior Deputy Assistant Secretary of State for European and Canadian
Affairs, U.S. Ambassador to the Conference of Security and Cooperation in
Europe, Special Envoy to the Balkans, and U.S. Deputy Permanent Representative
to the North Atlantic Treaty Organization in Brussels.
Phyllis E. Oakley served as Assistant Secretary of State of the Bureau
of Intelligence and Research, Assistant Secretary of State of the Bureau of
Population, Refugees, and Migration, Senior Deputy Assistant Secretary of State
in the Bureau of Population, Refugees, and Migration, Deputy Assistant Secretary
for Regional Analysis in the Intelligence Bureau, and Deputy Spokesman for the
State Department.
Thomas R. Pickering is Senior Vice-President International Relations
for The Boeing Company. A Career Ambassador, during his diplomatic career, he
served as Undersecretary of State for Political Affairs, Assistant Secretary of
State for Oceans, Environment and Science, U.S. Ambassador and Permanent
Representative to the United Nations in New York, U.S. Ambassador to The Russian
Federation, U.S. Ambassador to India, U.S. Ambassador to Israel, U.S. Ambassador
to El Salvador, U.S. Ambassador to Nigeria, U.S. Ambassador to The Hashemite
Kingdom of Jordan, and Executive Secretary of the Department and Special
Assistant to the Secretary. He also served as President of the Eurasia
Foundation.
Felix G. Rohatyn is the President of Rohatyn Associates. He was
previously Counselor at the Council on Foreign Relations. He is a Trustee of the
Center for Strategic and International Studies. He served from 1997-2000 as U.S.
Ambassador to France, and before that time as Partner and Managing Director of
Lazard Freres, Chairman of the Municipal Assistance Corporation, and Member of
the Board of Governors of the New York Stock Exchange.
J. Stapleton Roy is Managing Partner of Kissinger Associates, Inc. A
Career Ambassador, during his diplomatic career, he served as U.S. Ambassador to
Indonesia, U.S. Ambassador to the Peoples' Republic of China, and U.S.
Ambassador to Singapore. He also served as Assistant Secretary of State for
Intelligence and Research, Executive Secretary of the Department and Special
Assistant to the Secretary, and as Deputy Assistant Secretary for East Asian and
Pacific Affairs.
Frank G. Wisner is Vice-Chairman of the American International Group.
A Career Ambassador, during his diplomatic career, he served as U.S. Ambassador
to India, U.S. Ambassador to the Philippines, U.S. Ambassador to Egypt, and U.S.
Ambassador to Zambia. He also served as Under Secretary of Defense for Policy,
Under Secretary of State for International Security Affairs, and Senior Deputy
Assistant Secretary of State for African Affairs.
SUMMARY OF ARGUMENT
The United States of America is the only established democracy in the world
that is known regularly to execute people with mental retardation. As former diplomats,
amici curiae make three submissions, based upon their first-hand observation.
First, the current United States practice of executing people with mental retardation
has become manifestly inconsistent with evolving international standards of decency.
Second, permitting North Carolina to execute petitioner Ernest Paul McCarver,
an adult with a demonstrated IQ of 67,5
will 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.
Third, amici believe that under the jurisprudence of the Eighth and Fourteenth
Amendments, this Court cannot meaningfully evaluate "evolving standards of decency
that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 101
(1958), without weighing international as well as domestic opinion. Sustaining
the practice of executing people with mental retardation would not only deny the
"decent respect to the opinions of mankind" accorded by our Founding Fathers,
but would also offend broad universal "concepts of dignity, civilized standards,
humanity and decency" that lie at the core of the Eighth and Fourteenth Amendments'
bar against cruel and unusual punishments. Estelle v. Gamble, 429 U.S. 97, 102
(1976).
ARGUMENT
The United States of America is the only established democracy in the world
that is known regularly to execute people with mental retardation. At least 108
of the world's nations have now abolished capital punishment by law or by practice.
Of the minority of nations that still retain the practice of capital punishment,
only two-the United States and Kyrgyzstan-are reported regularly to execute people
with mental retardation.6
In diplomatic settings, the United States faces daily and growing criticism from
the international community for maintaining a cruel and uncivilized practice.
As former diplomats, amici curiae make three submissions, based upon their first-hand
observation.
I. THE EXECUTION OF PEOPLE WITH MENTAL RETARDATION IS INCONSISTENT
WITH EVOLVING GLOBAL STANDARDS OF DECENCY
The current United States practice of executing people with mental retardation
has become manifestly inconsistent with evolving international standards of decency.
Numerous international and regional intergovernmental bodies have passed resolutions,
statements and judgments expressing opposition to capital punishment for people
with mental retardation. As far back as 1989, the United Nations Economic and
Social Council (ECOSOC) passed by consensus a resolution that recommended "eliminating
the death penalty for persons suffering from mental retardation or extremely limited
mental competence." Implementation of the Safeguards Guaranteeing Protection of
the Rights of Those Facing the Death Penalty, E.S.C. Res. 1989/64, U.N. ESCOR,
para. 1, U.N.Doc. E/RES/1989/64 (1989).
In 1999, 2000, and 2001, the U.N. Commission on Human Rights adopted
resolutions urging those states that retain capital punishment "not to impose
the death penalty on persons suffering from any form of mental disorder," a term
understood by the Commission to include both mental illness and mental
retardation. See The Question of the Death Penalty, Hum. Rts. Comm. Res.
2001/68, U.N. GAOR, 57th Sess., para. 4, U.N.Doc. E/CN.4/RES/2001/68 (2001); The
Question of the Death Penalty, Hum. Rts. Comm. Res. 2000/65, U.N. GAOR, 56th
Sess., para. 3, U.N.Doc. E/CN.4/RES/2000/65 (2000); Question of the Death
Penalty, Hum. Rts. Comm. Res. 1999/61, U.N. GAOR, 55th Sess., para. 3, U.N.Doc.
E/CN.4/RES/1999/61 (1999).
The U.N. Special Rapporteurs on Extrajudicial, Summary or Arbitrary
Executions have also repeatedly criticized the U.S. for the practice of
executing people with mental retardation. See Extrajudicial, Summary or
Arbitrary Executions: Report by the Special Rapporteur, U.N. GAOR, Hum. Rts.
Comm., 54th Sess., para. 145, U.N.Doc. E/CN.4/1998/68/Add.3 (1998). In his 1998
report, the Special Rapporteur (Mr. Bacre Waly Ndaiye) stated: "Because of the
nature of mental retardation, mentally retarded persons are much more vulnerable
to manipulation during arrest, interrogation, and confession. Moreover, mental
retardation appears not to be compatible with the principle of full criminal
responsibility." Id. para. 58. In 2000, the Special Rapporteur urged governments
that continue to use the death penalty "to take immediate steps to bring their
domestic legislation and legal practice into line with international standards
prohibiting the imposition of death sentences in regard to minors and mentally
ill or handicapped persons."
Extrajudicial, Summary or Arbitrary Executions: Report of the Special Rapporteur,
U.N. GAOR, Hum. Rts. Comm., 56th Sess., para. 97, U.N.Doc. E/CN.4/2000/3 (2000).
The most recent report of the Special Rapporteur (Ms. Asma Jahangir) noted that
during the previous year she had sent urgent, unsuccessful appeals on behalf of
at least four persons facing execution in the United States "despite indications
that they were suffering from mental illness or disability." Extrajudicial, Summary
or Arbitrary Executions: Report of the Special Rapporteur, U.N. GAOR, Hum. Rts.
Comm., 57th Sess., para. 82, U.N.Doc. E/CN.4/2001/9 (2001).
II. THE GROWING INTERNATIONAL CONSENSUS AGAINST THE EXECUTION
OF PEOPLE WITH MENTAL RETARDATION HAS INCREASINGLY ISOLATED THE UNITED STATES
DIPLOMATICALLY
Amici submit that permitting North Carolina to execute petitioner Ernest Paul
McCarver will create friction with and alienate countries who have been American
allies of long standing. Nations that are otherwise our allies, with strong rule-of-law
traditions and histories, legal systems and political cultures similar to ours,
have most consistently protested our practice of executing people with mental
retardation. The European Union-which now makes abolition of the death penalty
a prerequisite for membership-has strongly criticized the U.S. execution of people
with mental retardation both in formal diplomatic demarches to the United States
and in letters expressing distress at specific executions.7
In numerous foreign nations-including many to which amici have been accredited-the
media and the general public have expressed growing outrage at the continued existence
and frequency of capital punishment in our country, with particular emphasis on
the U.S. practice of executing people with mental retardation.8
Amici believe that persisting in this aberrant practice will further the
United States' diplomatic isolation and inevitably harm 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.9
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.10
In Crosby v. National Foreign Trade Council, 530 U.S. 363, 385 (2000), this
Court recently found that "statements of foreign powers necessarily involved in
the President's [foreign policy] efforts . . . indications of concrete disputes
with those powers, and opinions of senior National Government officials are competent
and direct evidence of the frustration" of Congress' foreign policy objectives
by state law. In this case, this Court should similarly find that analogous statements,
indications and opinions of former officials constitute relevant evidence that
sustaining North Carolina's law and practice of executing people with mental retardation
would act to frustrate our broader national foreign policy goals.
III. IN EVALUATING "EVOLVING STANDARDS OF DECENCY" UNDER
THE EIGHTH AND FOURTEENTH AMENDMENTS, THIS COURT SHOULD WEIGH INTERNATIONAL AS
WELL AS DOMESTIC OPINION
Third and finally, amici believe that sustaining the practice of executing
people with mental retardation would offend our "evolving standards of decency"
and violate the Eighth and Fourteenth Amendments of the United States Constitution.
See U.S. Const. amends. VIII, XIV. The Eighth Amendment's bar against Cruel
and Unusual Punishments embodies broad "concepts of dignity, civilized standards,
humanity and decency." Estelle v. Gamble, 429 U.S. 97, 102 (1976). These
concepts are not static; rather, they change with the "evolving standards of decency
that mark the progress of a maturing society." Trop v. Dulles, 356 U.S.
86, 101 (1958). While this Court has primarily discerned these standards
by reference to the actions of state legislatures and juries, it has regularly
looked to international practices as well. Indeed, in assessing the contemporary
standards of "humanity," this Court has consistently recognized the obvious fact
that "humanity" encompasses citizens of nations other than our own. See
Thompson v. Oklahoma, 487 U.S. 815, 830 (1988) (looking, among other things, to
international practices in determining that the death penalty was unconstitutional
as applied to a 15-year-old); Ford v. Wainright, 477 U.S. 399, 409 (1986) ("the
natural abhorrence civilized societies feel at killing one who has no capacity
to come to grips with his own conscience or deity is still vivid today. And the
intuition that such an execution simply offends humanity is evidently shared across
this Nation") (emphasis added); Enmund v. Florida, 458 U.S. 782, 796 n.22 (1982)
(noting that "the doctrine of felony murder has been abolished in England and
India, severely restricted in Canada and a number of other Commonwealth countries,
and is unknown in continental Europe."); Coker v. Georgia, 433 U.S. 584, 596 (1977)
(citing Trop v. Dulles, 356 U.S. at 102, to determine that international practices
regarding the death penalty for rape were relevant to "evolving standards" analysis);
Trop v. Dulles, 356 U.S. at 102 (1958) (looking to international opinion to assess
"evolving standards of decency" for Eighth Amendment purposes).11
Our earliest understandings of the Eighth Amendment reflected the opinions
and practices of other civilized nations. Indeed, the phrase "cruel and unusual"
originated in the English Bill of Rights of 1689. The framers of the
Constitution understood that the customs of nations and the global "opinions of
mankind" would play an important role in the new nation. See Louis Henkin, A
Decent Respect to the Opinions of Mankind, 25 John Marshall L. Rev. 215
(1992). The American Declaration of Independence itself famously
announced:
When in the Course of human events, it becomes necessary for one people to
dissolve the political bonds which have connected them with one another . . .
a decent respect to the opinions of mankind requires that they should declare
the causes which impel them to the separation.
The Declaration of Independence, para. 1 (U.S. 1776) (emphasis added). Such
respect for world opinion proved particularly important in the drafting of the
Eighth Amendment to the Constitution. As Justice Blackmun noted, "[T]he drafters
of the [Eighth] Amendment were concerned, at root, with 'the dignity of man,'
and understood that 'evolving standards of decency' should be measured, in part,
against international norms." Harry A. Blackmun, The Supreme Court and the Law
of Nations, 104 Yale L.J. 39, 45-46 (1994) (quoting Trop v. Dulles, 356 U.S. 86,
100 (1958)). Moreover, since the founding of the nation, this Court has, in non-Eighth
Amendment contexts, often noted that Americans' social values reflect and are
informed by those of other nations, particularly those with similar legal and
social traditions. See, e.g., Reynolds v. United States, 98 U.S. 145, 164
(1878) (pointing out that "[p]olygamy has always been odious among the northern
and western nations of Europe"); Washington v. Glucksberg, 521 U.S. 702, 710 (1997)
("In almost every State-indeed, in almost every western democracy-it is a crime
to assist a suicide."); id. n.8 (citing Canadian decision discussing assisted-suicide
provisions in Austria, Spain, Italy, the United Kingdom, the Netherlands, Denmark,
Switzerland, and France).
International opinion has always informed this Court's understandings of the
social values of the United States and, in particular, what our society
considers to be "cruel and unusual punishments." U.S. Const. amend VIII. In an
increasingly globalized society, the opinions of other nations are more relevant
today than at any time since the Founding. In this context, the Court's
evaluation of "evolving standards of decency" must continue to reflect not just
the views of the American community, but the views of the international
community as a whole.
When this Court last considered this question, in the 1989 case of Penry v.
Lynaugh, 492 U.S. 302 (1989), only two states (Maryland and Georgia) and the
federal government statutorily prohibited executing people with mental
retardation. Today, 14 states and the federal government prohibit the practice
by statute.12
Taken in conjunction with the 12 states and the District of Columbia which
prohibit all capital punishment, 26 states, the federal government and the
District of Columbia now prohibit execution of the people with mental
retardation. In four other states-Connecticut, Florida, Missouri, and
Texas-similar bills have passed the legislature and are currently awaiting
gubernatorial signature.13
Several additional states are in various stages of legislative action concerning
a ban on the execution of people with mental retardation.14
Public opinion polls now show that a large majority of Americans-even those who
support capital punishment-today are opposed to executing people with mental
retardation. See, e.g., Sheryl McCarthy, The Mentally Retarded Should Be Spared
the Chair, Newsday, April 2, 2001, at A2 (citing a Gallup nationwide poll
finding that two-thirds of Americans oppose executing people with mental
retardation); Steve Brewer & Mike Tolson, A Deadly Distinction: Part III,
Houston Chronicle, Feb. 6, 2001, at A6 (citing a nationwide poll showing that
only 16 percent of those people who otherwise support the death penalty support
the execution of a person who is mentally impaired).
International condemnation of the United States practice of executing people
with mental retardation has been a significant factor in state legislative moves
to eliminate the practice.15
The last time this issue was considered, 12 years ago in Penry, this Court
acknowledged that executing people with mental retardation might be cruel and
unusual punishment, Penry, 492 U.S. at 333, but held that there was
"insufficient evidence of a national consensus against [the practice]." Penry,
492 U.S. at 335. Indeed, the Court in Penry stated that public sentiment
expressed in polls and resolutions indicating opposition to execution of people
with mental retardation showed only that it was perhaps an appropriate subject
for legislative intervention, "which is an objective indicator of contemporary
values upon which we can rely." Penry, 492 U.S. 302, 334-35 (emphasis added).
Amici respectfully submit that abundant evidence now exists of both an
international and a national consensus against executing persons with mental
retardation. For that reason, this Court should now take the step postponed in
Penry and bring this country's practices with regard to execution of people with
mental retardation into line with that of all other civilized nations.
In Thompson v. Oklahoma, 487 U.S. 815 (1988), this Court held that Oklahoma's
application of the death penalty to a defendant who was 15 years old at the time
of the offense violated the Cruel and Unusual Punishments clause of the Eighth
Amendment. Justice Stevens, writing for the plurality, took note of the
views of "other nations that share our Anglo-American heritage, and . . . the
leading members of the Western European community," id. at 830. Justice
O'Connor's concurrence invoked the United States' ratification of Article 68 of
the Geneva Convention Relative to the Protection of Civilian Persons in Time of
War, Aug. 12, 1949, 6 U.S.T. 3516, 3560, T.I.A.S. No. 3365 (entered into force
for United States on Feb. 2, 1956), "to undercut any assumption that [recent
congressional legislation has intended] to authorize the death penalty for some
15-year-old felons." 487 U.S. at 852 (O'Connor, J., concurring in the judgment).
It would be tragic if this Court were now to ignore an equally strong expression
of international practice and opinion and affirmatively authorize imposition of
the death penalty upon an adult with the mind of a 10-year-old.16
CONCLUSION
For the foregoing reasons, the Court should vacate the order of the Supreme
Court of North Carolina.
Respectfully submitted,
____________________
HAROLD HONGJU KOH
Counsel of Record
JAMES J. SILK
DEENA HURWITZ
ALLARD K. LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC
YALE LAW SCHOOL
127 Wall Street
New Haven, Ct. 06511
(203) 432-4932
STANLEY S. HERR
UNIVERSITY OF MARYLAND SCHOOL OF LAW
515 W. Lombard
Street
Baltimore, Md. 21201
(410) 706-3191
Counsel for Amici Curiae
June 8, 2001
Endnotes
1. In accordance with Sup. Ct. R. 37.6, amici curiae
disclose that the law firm of Debevoise & Plimpton made a contribution in
kind to the printing, preparation and submission of this brief.
2. Blanket consents have been granted by all
parties for the filing of amicus briefs.
3. This Court has long held that international law
standards "may be ascertained by consulting the . . . general usage and practice
of nations," United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820), and
by examining "the customs and usages of civilized nations; and as evidence of
these . . . the works of . . . commentators, who by years of labor, research and
experience, have made themselves peculiarly well acquainted with the subjects of
which they treat." The Paquete Habana, 175 U.S. 677, 700 (1900) (emphasis
added).
4. The current affiliations of amici are provided here for
identification purposes only, and are not intended to convey the views of their
affiliated institutions on the questions at issue here.
5. According to the American Association on Mental
Retardation, a person possesses the intellectual-deficit component of mental
retardation, inter alia, if he or she has an IQ of "70 to 75 or below." American
Association on Mental Retardation, Mental Retardation: Definition,
Classification, and Systems of Support 25 (9th ed. 1992). At the
sentencing phase in this case, a psychologist who had tested McCarver testified
that his disability, which had manifested at an early age, left McCarver with
the reading comprehension of a 7-year-old and the writing ability of an
8-year-old. Tr. at 732-33. A national expert on mental retardation further
determined that McCarver possessed an age-equivalent score in adaptive behavior
of 10 years and 5 months.
6. In 1994, the U.N. Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions expressed concern that an execution in Japan may
have involved a person with mental retardation, but we have not been able to
independently verify that claim. Nor does that report suggest that Japanese law
and practice authorize the regular, knowing and deliberate execution of
individuals with mental retardation. Extrajudicial, Summary or Arbitrary
Executions: Report by the Special Rapporteur, U.N. GAOR, Hum. Rts. Comm., 51st
Sess., para. 380, U.N.Doc. E/CN.4/1995/61 (1994). Given this near-unanimity of
state practice followed out of a sense of legal obligation, amici believe that
the current U.S. practice violates customary international law, which "is part
of our law, and must be ascertained and administered by the courts of justice of
appropriate jurisdiction as often as questions of right depending upon it are
duly presented for their determination. . . ." The Paquete Habana, 175 U.S. 677,
700 (1900).
7. See, e.g., European Union, Press Release, May 10,
2001, at http://www.eurunion.org/legislat/DeathPenalty/Demarche10May.htm
(last consulted June 6, 2001), reporting that "[i]n line with established EU
practice, the Swedish Presidency of the European Union on May 10, 2001 made a
demarche to the US Administration presenting the EU positions of principle on
the death penalty," and noting that "[i]n individual cases, the EU makes
clemency demarches in cases involving mentally retarded persons." See also The
Daily Telegraph (London), Mar. 8, 2001, at 15, reporting that "Willy Helin,
spokesman for the EU in Washington, said the EU was opposed to the death penalty
in principle but particularly highlighted cases involving people who were minors
at the time of the offence, mentally retarded or foreign nationals." In 2000,
the European Union expressed its concern, via a demarche, that the United States
continues to carry out the death penalty against those who suffer from mental
disorders. See European Union, EU Policy on the Death Penalty: EU Demarche
on the Death Penalty, Feb. 25, 2000, at http://www.eurunion.org/legislat/deathpenalty/Demarche.htm
(last consulted June 6, 2001) (containing the European Union's demarche on the
death penalty of February 25 2000, forwarded to the United States with a
European Union Memorandum on the Death Penalty). On March 26, 2001 the European
Union, via its Presidency (Sweden), the subsequent President (Belgium) and the
European Commission, appealed to the Governor of Nevada not to execute Thomas
Nevius, a defendant with an IQ between 57 and 68. The European Union's
letter noted that Nevius's execution would be contrary to the United Nations
Safeguards Guaranteeing Protection of the Rights of those Facing the Death
Penalty as well as to the most recent resolution on capital punishment by the
Commission on Human Rights. See European Union, Letter to Nevada Governor
Guinn on Behalf of Thomas Nevius, Mar. 26, 2001, available at http://www.eurunion.org/legislat/DeathPenalty/NeviusGovLett.htm
(last consulted June 6, 2001).
8. See, e.g., Felix G. Rohatyn, Op-Ed, America's Deadly Image,
Washington Post, Feb. 20, 2001, at A23, noting that "[r]epeated protests in
front of the embassy in Paris, protests at our consulates and, just recently, a
petition signed by 500,000 French men and women delivered to our embassy in
Paris were part of a constant refrain. . . . There is a strong belief among our
European allies that [the death penalty] has no place in a civilized society. .
. . [T]he United States is seen as executing people who have not had appropriate
legal assistance, people who may be innocent, people who are mentally retarded
as well as minors" (emphasis added). See also Marcus Mabry, A Bad Case of
Euro Envy: The Rift Between U.S. and Old World Values is Threatening America's
Claim to Global Leadership, Newsweek, Apr. 16, 2001, at 2: "Human-rights
organizations and thousands of demonstrators bear down on U.S. embassies
with each controversial execution in America. . . . [Karsten] Voigt [coordinator
for German-American relations at the Foreign Ministry in Berlin] predicts that
in coming years, disagreements over values will become intractable. . . . [A]ll
this discord will eventually have political ramifications. . . . Increasingly,
Europe will find it difficult (and unpopular) to be allied with a nation whose
values it doesn't share-not to mention to be led by it." See A Cultural
Gulf, International Herald Tribune, May 14, 2001, at 8: "European politicians
and intellectuals, who view the death penalty as a human rights issue, are
incredulous that Americans support a punishment that . . . is used on the
mentally retarded and has often gotten the wrong man" (emphasis added);
Editorial, Europe's View of the Death Penalty, New York Times, May 13, 2001, §
4, at 12 (suggesting that the U.S. position on this issue may have contributed
to the U.S. failure to gain reelection to the United Nations Human Rights
Commission); Gay Alcorn, News Review, Sydney Morning Herald, May 12, 2001, at
37: "Why would the U.S., champion of human rights and justice, be so alone among
its allies . . . ?"
9. See The Economist, A Covenant with Death, May 12,
2001, at 34 ("Colin Powell, the secretary of state, is routinely confronted
about his country's use of the death penalty when he meets his counterparts
around the world.").
10. The Peoples' Republic of China, for example, regularly
raises the U.S. practice of executing people with mental retardation when
demarched about its own human rights practices. Although the Peoples' Republic
executed nearly three times as many people in 1998 as the rest of the world
combined (nearly 1800 people), it has reportedly banned the execution of people
with mental retardation for centuries. Stephen Davis, The Death Penalty and
Legal Reform in the PRC, 1 Journal of Chinese Law 303, 307 (1987).
11. In Stanford v. Kentucky, the opinion announcing the
Court's judgment stated in a footnote that exclusively American conceptions of
decency were "dispositive" of the analysis. Stanford v. Kentucky, 492 U.S.
361, 370, n.1 (1989). This view seems clearly aberrant, however, when
viewed in light of this Court's established Eighth Amendment jurisprudence,
cited in text above. That precedent has consistently considered international
opinion when evaluating evolving standards of decency for purposes of the Eighth
Amendment. As Justice Blackmun has noted, "if the substance of the Eighth
Amendment is to turn on 'evolving standards of decency' of the civilized world,
there can be no justification for limiting judicial inquiry to the opinions of
the United States." Harry A. Blackmun, The Supreme Court and the Law of Nations,
104 Yale L.J. 39, 48 (1994).
12. Arizona, Arkansas, Colorado, Georgia, Indiana,
Kansas, Kentucky, Maryland, Nebraska, New Mexico, New York, South Dakota,
Tennessee, and Washington.
13. See Fla. S. 238, 2001 Reg. Sess. (2001); Conn. S.
1161, 2001 Reg. Sess. (2001); Mo. S. 267, 2001 Sess. (2001); Tex. H.B. 236, 77th
Sess. (2001). If signed by their respective governors, these bills will
bring to 18 the number of states that retain the death penalty, but not for
people with mental retardation. One of the four governors, Florida's Jeb Bush,
has said that he supports the measure and has vowed publicly not to sign death
warrants for prisoners with mental retardation. See National Briefing South:
Florida: Legislature Bans Execution of Mentally Retarded, New York Times, May 5,
2001, at A9; National Briefing Southwest: Texas: Compromise on Death Penalty,
New York Times, May 25, 2001, at A16; Sparing the Retarded Law, St.
Louis-Dispatch, May 16, 2001, at B6. Missouri Governor Bob Holden has also
indicated that he will sign his state's bill. See Bill Bell Jr.,
Legislation Sent to Holden Would Ban Death Penalty for Mentally Retarded, St.
Louis Post Dispatch, May 12, 2001, at 11. Similarly, Connecticut Governor
John Rowland has indicated that he will sign the Connecticut measure in light of
his public support for a death penalty exemption for defendants with mental
retardation. See Lisa Chedekel, Senate OK's Changes in Death Penalty, The
Hartford Courant, June 6, 2001, at A3. Governor Rick Perry has not decided yet
whether he will allow the Texas bill to become law. See Jim Yardley, Texas
Death Bill Is in Hotter Spotlight, New York Times, June 5, 2001 at A18; Jim
Yardley, Texas Set to Shift in Wake of Furor Over Death Penalty, New York Times,
Jun. 1, 2001, at A1.
14. Several state legislatures (e.g., Louisiana,
North Carolina, and Oregon) have active bills pending. See 2001 LA H.B. 886
(La.); 2001 NC H.B. 141 (N.C.); 2001 NC S.B. 173 (N.C.); 2001 OR S.B. 140 (Or.).
At least two states that ban all capital punishment (Massachusetts and
Minnesota) saw efforts to restore the death penalty but proposed legislation
including specific exemptions for persons with mental retardation. See 2001 MA
H.B. 4003 (Mass.); 2001 MN H.B. 329 (Minn.). And at least two state legislatures
(Nebraska and New Hampshire) passed bills establishing a moratorium on
executions, including those of persons with mental retardation, only to have
them be vetoed by their governors. See Henry Weinstein, Death Penalty Moratorium
Gaining Unlikely Adherents, Los Angeles Times, Oct. 17, 2000, at A1; Bush
Campaign Unfazed by Death-Penalty Debate; Gore Also Favors Execution, Telegraph
Herald (Dubuque, Iowa), Aug. 8, 2000, at A7.
15. See, e.g., Rodney Ellis, The Hard-Line
Punishment Texans Don't Support, New York Times, June 2, 2001, at A13 (Texas
state senator states that "[s]ince the death penalty was ruled constitutionally
permissible in 1976, 35 offenders with mental retardation have been executed
nationwide. Texas leads the way, having executed six. Around the globe this
makes Texas look barbaric and concerned with revenge, not justice." (emphasis
added)).
16. See Eric Dyer, Death Penalty Measure
Passes in State Senate: The Legislation Would Prohibit Prosecutors from Seeking
Capital Punishment for Anyone with an IQ of 70 or Below, News-Record
(Greensboro, N.C.), Apr. 24, 2001, at A1 (quoting North Carolina Republican
state Senator Hamilton Horton after the state Senate passed a bill that would
revise the state statute at issue here by exempting the people with mental
retardation from the death penalty: "This act addresses the situation of a
child's mind in an adult's body. . . . I want the world to know that in North
Carolina, we aren't in the business of executing children.")
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