The Foreign Service Journal, October 2003

F O C U S O C T O B E R 2 0 0 3 / F O R E I G N S E R V I C E J O U R N A L 23 expressing distress at specific executions. In numerous foreign nations — including many to which amici have been accredited — the media and the general public have expressed growing out- rage at the continued existence and frequency of capital punish- ment in our country, with particular emphasis on the U.S. practice of executing people with mental retardation. Amici believe that persisting in this aberrant practice will fur- ther the United States' diplomatic isolation and inevitably harm 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 clos- est allies are now consumed with answering diplomatic demarch- es 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 men- tal retardation, it would provide fresh anti-American diplomatic ammunition to countries who have exhibited far worse human rights records. In Crosby v. National Foreign Trade Council , 530 U.S. 363, 385 (2000), this Court recently found that “statements of for- eign powers necessarily involved in the President's [foreign policy] efforts . . . indications of concrete disputes with those powers, and opinions of senior National Government officials are competent and direct evidence of the frustration” of Congress' foreign policy objectives by state law. In this case, this Court should similarly find that analogous statements, indications and opinions of former officials constitute relevant evidence that sustaining Virginia’s law and practice of execut- ing people with mental retardation would act to frustrate our broader national foreign policy goals. III. In evaluating “evolving standards of decency” under the Eighth and Fourteenth Amendments, this Court should weigh international as well as domestic opinion. Third and finally, amici believe that sustaining the practice of executing people with mental retardation would offend our “evolving standards of decency” and violate the Eighth and Fourteenth Amendments of the United States Constitution. … The Eighth Amendment's bar against Cruel and Unusual Punishments embodies broad “concepts of dignity, civilized stan- dards, humanity and decency.” Estelle v. Gamble , 429 U.S. 97, 102 (1976). These concepts are not static; rather, they change with the “evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles , 356 U.S. 86, 101 (1958). While this Court has primarily discerned these standards by ref- erence to the actions of state legislatures and juries, it has regu- larly looked to international practices as well. Indeed, in assess- ing the contemporary standards of “humanity,” this Court has consistently recognized the obvious fact that “humanity” encom- passes citizens of nations other than our own. … Our earliest understandings of the Eighth Amendment reflect- ed the opinions and practices of other civilized nations. Indeed, the phrase “cruel and unusual” originated in the English Bill of Rights of 1689. The framers of the Constitution understood that the customs of nations and the global “opinions of mankind” would play an important role in the new nation. … Such respect for world opinion proved particularly important in the drafting of the Eighth Amendment to the Constitution. As Justice Blackmun noted, “[T]he drafters of the [Eighth] Amendment were concerned, at root, with ‘the dignity of man,’ and understood that ‘evolving standards of decency’ should be mea- sured, in part, against international norms.” … When this Court last considered this question, in the 1989 case of Penry v. Lynaugh , 492 U.S. 302 (1989), only two states (Maryland and Georgia) and the federal government statutorily prohibited executing people with mental retardation. Today, 14 states and the federal government prohibit the practice by statute. Taken in conjunction with the 12 states and the District of Columbia which prohibit all capital punishment, 26 states, the fed- eral government and the District of Columbia now prohibit execu- tion of people with mental retardation. In four other states — Connecticut, Florida, Missouri, and Texas — similar bills have passed the legislature and are currently awaiting gubernatorial sig- nature. Several additional states are in various stages of legislative action concerning a ban on the execution of people with mental retardation. … International condemnation of the United States practice of executing people with mental retardation has been a significant factor in state legislative moves to eliminate the practice. The last time this issue was considered, 12 years ago in Penry , this Court acknowledged that executing people with mental retardation might be cruel and unusual punishment, … but held that there was “insufficient evidence of a national consensus against [the prac- tice].” … Amici respectfully submit that abundant evidence now exists of both an international and a national consensus against executing persons with mental retardation. For that reason, this Court should now take the step postponed in Penry and bring this country's practices with regard to execution of peo- ple with mental retardation into line with that of all other civi- lized nations. … ■