"My Friend Is a Stranger": The Death Penalty and the Global Ius Commune of Human Rights

My friend is a stranger, someone I do not know. A stranger far, far away. For his sake my heart is full of disquiet because he is not with me. Because, perhaps, after all he does not exist? Who are you who so fill my heart with your absence? Who fill the entire world with your absence?1 I. Introduction: The Foreign Presence in Atkins v. Virginia A stranger is lurking in the background of the United States Supreme Court's death penalty jurisprudence, a foreigner still not quite present but nevertheless filling the heart of the law with disquiet. In Atkins v. Virginia, in which the Court recently held that the execution of mentally retarded criminals violates the Eighth Amendment of the United States Constitution,2 we get a timid glimpse of the stranger through what might otherwise be an unremarkable footnote. In the main text of the opinion, the Court measures the existence of a national consensus regarding the "evolving standards of decency" that mark the progress of a maturing society.3 Only after reaching a conclusion on the basis of legislative developments in the United States does Justice Stevens add a long footnote to list "[a]dditional evidence" providing "further support to our conclusion that there is a consensus among those who have addressed the issue."4 There, almost buried among the opinions of medical associations, religious organizations, and general polling data is this single sentence: "Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved."5 While seeming to be rather casual on its own, that sentence becomes much more noticeable because of the vehement rejoinders it provokes from the two dissenters. Both Chief Justice Rehnquist and Justice Scalia go to considerably greater length in condemning any consideration of foreign norms than the majority does in acknowledging them, insisting that "the viewpoints of other countries simply are not relevant" to an assessment of United States standards.6 Their response hardly seems proportionate to the majority's bare mention, in very indirect fashion, of the existence of an international consensus; it only makes sense to the extent that the reference to IMAGE FORMULA7IMAGE FORMULA8 global developments is a sign of a larger and more significant presence looming just beyond the current reach of U.S. law. There is more at work here than just the well-known, but minor, running spat among the Justices about the relevance of foreign and comparative law to constitutional adjudication in general.7 The dissenters succeeded in highlighting that in its death penalty jurisprudence, the U.S. Supreme Court is on the threshold of participating more fully in a substantial transnational normative community that could, in principle, have a significant impact on U.S. law.8 Within just two months, the Court gave us a hint of the potential implications of the stranger's presence, when three of the Justices dissented from a denial of certiorari in a case challenging Texas's execution of a man for a crime committed while he was still a minor. Justice Stevens called for a reversal of Stanford v. Kentucky9 (in which the Court, thirteen years earlier, had upheld the constitutionality of such executions), noting that "the issue has been the subject of further debate and discussion both in this country and in other civilized nations" and that there is now an "apparent consensus... among the States and in the international community against the execution of a capital sentence imposed on a juvenile offender."10 Justices Ginsburg and Breyer both joined Stevens, and added specifically that Atkins has now made it more tenable to revisit Stanford.11 However, a much more rich and vivid illustration of the possibilities of transnational normative dialogue could be found in another significant death penalty case decided at almost the same time as Atkins, albeit in a very different court. …