The Foreign Service Journal, October 2003

F O C U S 22 F O R E I G N S E R V I C E J O U R N A L / O C T O B E R 2 0 0 3 No. 00-8727 IN THE Supreme Court of the United States OCTOBER TERM, 2000 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 SUP- PORT OF PETITIONER June 8, 2001 The following is excerpted from the friend of the Court brief submitted by nine U.S. diplomats in the U.S. Supreme Court’s con- sideration of Atkins v. State of Virginia. All footnotes, sources and endnotes have been deleted. The complete brief can be found at ht tp://www.deathpenaltyinfo.org/article.php?did=538&scid=28. Interest of Amici Curiae Amici curiae have served as diplomats representing the gov- ernment of the United States at home and abroad in both Republican and Democratic administrations. … 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 stan- dards of decency; second, that Virginia’s continuation of the prac- tice 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 … 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 decen- cy” and hence, the Eighth and Fourteenth Amendments of the United States Constitution. … Argument The United States of America is the only established democ- racy 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 minor- ity of nations that still retain the practice of capital punishment, only two— the United States and Kyrgyzstan— are reported reg- ularly to execute people with mental retardation. In diplomatic settings, the United States faces daily and growing criticism from the international community for maintaining a cruel and uncivi- lized practice. As former diplomats, amici curiae make three sub- missions, based upon their first-hand observation. I. The execution of people with mental retardation is incon- sistent 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 interna- tional and regional intergovernmental bodies have passed resolu- tions, 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 “eliminat- ing the death penalty for persons suffering from mental retarda- tion or extremely limited mental competence.” … 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 suffer- ing from any form of mental disorder,” a term understood by the Commission to include both mental illness and mental retarda- tion. … 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. … II. The growing international consensus against the execu- tion of people with mental retardation has increasingly isolat- ed the United States diplomatically. Amici submit that permitting Virginia to execute petitioner … 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 sys- tems and political cultures similar to ours, have most consistent- ly protested our practice of executing people with mental retarda- tion. The European Union — which now makes abolition of the death penalty a prerequisite for membership — has strongly crit- icized the U.S. execution of people with mental retardation both in formal diplomatic demarches to the United States and in letters