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Washington-Every country in the world has ratified the 1989 United Nations Convention on the Rights of the Child, prohibiting capital punishment for those under 18-every country except the United States and Somalia, which has no real government. Should the U.S. Supreme Court care? The European Union and its 25 member nations, the Council of Europe and its 45 member states, Canada and Liechtenstein, the Bar of England and Wales, 18 Nobel Peace Prize laureates and other international groups and nations believe that the justices should not only care, but also consider the overwhelming world consensus against the death penalty for juveniles as they once again examine the constitutionality of executing juveniles in America. The juvenile death penalty challenge, which will be argued this week in the high court, is not the first time that foreign nations, international human rights groups and foreign bar associations have tried to influence the justices’ decision-making. But it is the most compelling case thus far, they argue, for the voice of international law to be heard. “There is some international law on executing the mentally retarded, but it is so much clearer with respect to juveniles that countries have agreed and continue to uphold the law that says you can’t do this,” said Constance de la Vega of the University of San Francisco School of Law, who authored an amicus brief for the Bar of England and Wales, Human Rights Advocates, Human Rights Watch and the World Organization for Human Rights USA. The juvenile death penalty challenge- Roper v. Simmons, No. 03-633-is the latest in a series of recent cases revealing a split among the justices over how influential, if at all, international law should be in deciding U.S. constitutional issues. It’s a debate that has also reached the halls of Congress, where legislation has been introduced in the House, H.R. 4118, prohibiting federal courts from looking to the laws, rules, decisions or constitutions of any foreign state when interpreting the U.S. Constitution. To Professor de la Vega and many other international law scholars and practitioners, international law, at a minimum, is relevant to determining the “evolving standards of decency” used to weigh what is cruel and unusual punishment under the Eighth Amendment. And if the international consensus against executing juveniles has become a “jus cogens” norm-and they argue it has-it is binding. Not all scholars, however, agree. “What are these international norms?” asked John McGinnis of Northwestern University School of Law. “Who is claiming these? Some group of international judges or international law professors, totally unaccountable in the American system.” After the Supreme Court struck down capital punishment for the mentally retarded in 2002, death penalty abolitionists saw an opening for an attack on the execution of juveniles. The Missouri Supreme Court used the same analysis in the 2002 ruling to reach the conclusion that the death penalty for Christopher Simmons, 17 when he murdered Shirley Crook, violated the Eighth Amendment. Tracking the approach of the Supreme Court in Atkins v. Virginia, 536 U.S. 304, the Missouri high court noted that a large number of international groups opposed the practice, and only two countries had recently executed juveniles: Iran and the Republic of the Congo. In the U.S. Supreme Court, Simmons’ counsel, Jennifer Herndon of St. Louis, relied on the international consensus to buttress her argument that evolving standards of decency now reject the juvenile death penalty. Since 1990, she told the court, executions of juveniles have virtually ceased. And in 2002, she added, this “nearly universal consensus” led the Inter-American Commission on Human Rights to declare that the prohibition is now a binding norm of international law. “The small minority of United States jurisdictions that continue to execute those under 18 now stand virtually alone-not just in this country, but in a world that has concluded that the execution of juvenile offenders is contrary to contemporary standards of decency,” Herndon said in her brief to the court. But Missouri Assistant Attorney General Stephen D. Hawke countered, “The Eighth Amendment inquiry is into the standard of decency in modern American society as a whole, not the standard in societies in First, Second, or Third World countries.” Atkins-the ruling on the death penalty for the mentally retarded-clearly revealed the high court split on whether to consider international law in determining the evolving standards of decency under the Eighth Amendment. In a footnote to his majority opinion, Justice John Paul Stevens-like Simmons’ counsel today-cited an amicus brief by the European Union in an earlier capital case to support the position that there was a national consensus against executing mentally retarded offenders. “Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” But Justice Antonin Scalia first rejected a role for the international community in analyzing the Eighth Amendment in his majority opinion in Stanford v. Kentucky, 492 U.S. 361 (1989), which upheld the death penalty for 16 and 17 year olds. He reiterated that view in his dissent in Atkins: “But the Prize for the Court’s Most Feeble Effort to fabricate ‘national consensus’ must go to its appeal (deservedly relegated to a footnote) to the views of assorted professional and religious organizations, members of the so-called ‘world community,’ and respondents to opinion polls.” Besides Stevens, other justices who have noted international law in their decisions are Anthony M. Kennedy (most notably in Lawrence v. Texas, striking down that state’s anti-sodomy law), Ruth Bader Ginsburg (in the most recent affirmation action rulings) and David H. Souter. What makes the Simmons challenge more compelling in terms of international law than those other cases, according to some scholars, is that the international consensus against executing juveniles is now a jus cogens norm, and that is particularly relevant to the court’s test for whether a practice violates “evolving standards of decency that mark the progress of a maturing society.” A jus cogens prohibition is a “rule of customary international law which cannot be set aside by treaty or acquiescence but only by the formation of a subsequent customary law of contrary effect,” according to the Vienna Convention on the Law of Treaties. “It’s sort of the pinnacle of international policy,” said Robert Goldman of American University Washington College of Law. “There is a very limited class of things we regard as jus cogens. The prohibition against genocide is one. No state can escape its dictates. I’m sure the White House is not too fond of the theory.” The Supreme Court, from its earliest days, looked to the law of nations to inform its decision-making and has said that customary international law is part of domestic law, said Vicki Jackson of Georgetown University Law Center. “I think in many areas of individual rights, the United States’ understanding of what our commitments in those areas mean can be informed-though certainly not controlled-by how other communities-international or particular countries-have understood similar commitments,” said Jackson. “The Eighth Amendment speaks to evolving standards of decency, which means we should keep looking,” she said. “What Justice Scalia would say is that means look in the United States. But we do not live in isolation in the world. To some extent, I think there’s a benefit in having everybody clear about what the legal norms are elsewhere so decision-making isn’t informed by misconception.” A major misconception, she noted, informed the high court’s ruling in Bowers v. Hardwick, which upheld Georgia’s anti-sodomy law but was subsequently overruled by Lawrence. The Bowers court said that homosexuality had been condemned legally everywhere in the world, she recalled. But, as the Lawrence majority discussed, that was not true. Assuming a bar against executing juveniles is now an international norm, Northwestern’s McGinnis said, “I don’t think the question for an originalist is: Does this cast light on the original meaning of the Constitution? I’m skeptical it does. New norms of international law weren’t around at the time.” And even if the Eighth Amendment test involves evolving standards of decency, he added, “I’m skeptical . . . that the framers wanted or that we should want our own standards to depend on those in the international community, which may be less protective of human rights.” The international community’s involvement in recent high court cases is the result of “our country getting so far out of the loop,” said de la Vega, and the United States or the government doesn’t care. “But as we increasingly become part of the global community, we will have to care because it affects our economic relations and other relations with countries. We are part of the community.”

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