Juvenile Execution, Terrorist Extradition, and Supreme Court Discretion to Consider International Death Penalty Jurisprudence

I. INTRODUCTION Multilateral treaties and international institutions have impacted the extradition of capital offenders and influenced the development of human rights law within the United States. Refusal to extradite without assurances that the death penalty will not be imposed has continuing ramifications for the implementation of transnational counter-terrorism measures. In the absence of consensus regarding the death penalty, prohibition against torture has served as justification for not extraditing people who would be likely to face death sentences. Determining a contemporary standard of decency regarding cruel and unusual punishment, what shocks the public conscience, or what constitutes torture depends upon what societal parameters one uses. Should capital punishment remain within the purview of provincial criminal law, depend upon national sentiment, or consider international legal standards? The execution of foreign nationals without notification of their consular rights has internationalized the United States' death penalty policy. Recently, the United States Supreme Court has been willing to consider international developments in relation to evolving standards of decency. The Court has extended greater protection on the basis of sexual orientation and prohibited the execution of individuals with mental retardation. In Roper v. Simmons, the United States Supreme Court determined that it is cruel and unusual to execute sixteen and seventeen year olds. (1) Prior to 2005, the United States had executed seventy percent of the juveniles that have been put to death worldwide since 1998. (2) Up until the Roper decision, there were eighty-two people between the ages of sixteen and eighteen on death row in the United States. (3) While customary international law prohibiting capital punishment has yet to fully develop, collective condemnation of torture exists and has had a significant impact on extradition law. In Soering v. United Kingdom, the European Court of Human Rights held that the United States would expose Soering to a real risk of torture in violation of the European Convention on Human Rights ("ECHR"). (4) The European Court of Human Rights based its decision on the length of time that Soering was likely to spend on death row in Virginia; the mounting anxiety of awaiting execution; and on Soering's youth and mental state at the time of the offense. (5) While subsequent decisions around the world have not always followed Soering, a growing body of case law provides a warning to States that still use the death penalty that their extradition treaties may not be upheld without assurances that capital punishment will not be imposed. This article considers the obligations of a supreme court in a liberal democracy and the effect that public opinion has upon the legality of the death penalty. Given the mounting need for international coordination to maintain peace and security, a consensus must be reached regarding capital punishment. II. THE EFFECT OF MULTILATERAL AND REGIONAL TREATIES ON CAPITAL PUNISHMENT As criminal conduct increasingly becomes transboundary, the European Court of Human Rights continues to clarify the scope of the ECHR. A per se rule is developing against extradition of a suspect who potentially will face capital punishment. (6) Ocalan v. Turkey may shed light on whether member States can extradite terrorist suspects to nonmember States if there is a risk that they will receive the death penalty. (7) A. Extradition and the War on Terrorism The war on terrorism has concentrated efforts to bring to justice suspects who free across international borders. Extradition proceedings allow the international community to consider the lawful parameters of such a war vis a vis human rights. Soering v. United Kingdom provides a guide for countries who extradite suspects to retentionist States. (8) Ocalan v. Turkey further clarifies the balance that should be struck between fundamental human rights and counter-terrorism measures in regard to the extradition of terrorist suspects. …