Introduction: Death Penalty and International Law

In 2004, the United States celebrated the fiftieth anniversary of the Supreme Court's decision in Brown v. Board of Education in which the Court declared de jure segregated schools unconstitutional.1 In recent years, many legal historians have noted the influence of international attitudes towards America's persistent embrace of racial segregation on the Court's deliberations in Brown.2 Indeed, the brief of the United States in the Brown case was devoted in significant measure to the harm to America's foreign policy interests that resulted from the country's retention of de jure racial segregation.3 Will international attitudes have a similar impact on this country's use of the death penalty? This symposium does not address that question. But the articles that comprise this symposium do argue that there is a non-trivial relationship between international legal norms and the operation of the death penalty in the United States. These articles explore the various ways in which international norms do affect the use of the death penalty in this country. Mark Warren, in his article Death, Dissent and Diplomacy: The U.S. Death Penalty as an Obstacle to Foreign Relations, explores in part the impact of America's retention of the death penalty on American foreign policy.4 Warren notes that some former U.S. diplomats have cited America's retention of the death penalty as a hindrance to the nation's interests. In 2003, for example, Harold Koh and Thomas Pickering wrote: "For a country that aspires to be a world leader on human rights, the death penalty has become our Achilles' heel."5 Nine former diplomats filed an amicus brief with the United States Supreme Court in McCarver v. North Carolina, a 2001 case involving the execution of mentally retarded defendants, arguing that such executions: 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. . . . . . . . . . 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. 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.6 Warren discusses other incidents as well, such as the cancellation of a visit between Mexican President Vincente Fox and American President George W. Bush in protest of the American execution of a Mexican citizen in violation of his consular rights.7 In fact, one important issue involving the interplay of international legal norms and the death penalty in the United States has been the question of compliance with the Vienna Convention on Consular Relations that requires consular notice when a foreign national is facing criminal charges.8 Both John Quigley, in his article Suppressing the Incriminating Statements of Foreigners,9 and Linda Malone, in her article From Breard to Malvo: Incompetency and Human Rights on the Fringes of the Death Penalty, (10 explore the operation of the Vienna Convention in American death penalty cases. The Convention requires that foreign nationals arrested on criminal charges be granted access to their home-state consul and notified by the detaining authorities of their right to such access. But in several death penalty cases, this consular notice requirement has not been met, provoking intense international displeasure. Quigley's article explores "whether consular access involves a judicially cognizable right, whether the information about consular access must be provided prior to interrogating, and whether principles of international law call for the suppression of a statement made by a foreign national who was not informed about consular access. …