The Foreign Service Journal, October 2003

F O C U S 24 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 Feingold, D-Wis., has intro- duced bills that would halt execu- tions by the federal government and in all 38 states that have death penalty laws on their books pending review of the death penalty system by an indepen- dent, blue ribbon commission. Ending the Isolation Last year, for the first time in years, the U.S. Supreme Court signaled its willingness to take decisions to help reduce America’s international isolation on this issue. In Atkins v. Virginia , the Court considered whether execution of persons with mental retardation violated the U.S. Constitution’s Eighth Amendment prohibition against “cruel and unusual” punishments, interpreted according to the “evolving standards of decency that mark the progress of a matur- ing society.” Tom Pickering and eight other distinguished for- mer American diplomats whose combined service under Republican and Democratic presidents totaled nearly 200 years — Morton Abramowitz, Stephen W. Bosworth, Stuart E. Eizenstat, John C. Kornblum, Phyllis E. Oakley, Felix G. Rohatyn, J. Stapleton Roy and Frank G. Wisner — decided that it was time to speak out. Some of them opposed the death penalty in all cases; some opposed it only in certain circum- stances. But represented by Harold Hongju Koh, they submitted a “Friend of the Court” brief in the Atkins case, arguing that executions of mentally retarded inmates create diplomatic friction, pit America against its allies, tarnish America’s image as a human rights leader, and harm broader U.S. foreign policy interests (see 22 for excerpts). We were sur- prised to learn while preparing the brief that the U.S. was quite literally the only country in the world that regularly executed people with mental retardation as a matter of state policy. In Atkins , the Court struck down the practice of exe- cuting persons with mental retardation, noting that, “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” Yet even this simple statement of fact provoked strong dissents from Chief Justice Rehnquist and Justice Scalia, who insisted that “the viewpoints of other countries simply are not relevant” to an assessment of United States constitutional stan- dards. Several months later, a minor- ity of the justices argued, based on the reasoning in Atkins , that, given the “apparent consensus ... in the international community against the execution of a capital sentence imposed on a juvenile offender,” the death penalty should also be constitutionally barred for juvenile offenders. Without opinion, a bare majority of the Court continued, however, to reject that claim. “A Wider Civilization…” But a harbinger of change may have come this past Supreme Court term. In Lawrence v. Texas , six jus- tices of the Court struck down a Texas law banning consensual sodomy between adults of the same sex, declaring that the Court’s infamous 17-year-old deci- sion to the contrary in Bowers v. Hardwick was wrongly decided. Justice Anthony Kennedy, writing for the Court, declared: “To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been reject- ed [by the European Court of Human Rights] and else- where. Other nations, too, have taken action consistent with an affirmation of the protected right [claimed here] … The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circum- scribing personal choice is somehow more legitimate or urgent.” In Lawrence , the Supreme Court simply acknowl- edged that we are part of a wider world. Concepts like liberty, equality, privacy, and freedom from torture and cruel and unusual treatment are not American property, but universal concepts. Applied to the death penalty, the Court’s reasoning in Lawrence suggests that our courts should also look now to the practices of other nations in Nine former American diplomats whose combined service under Republican and Democratic presidents totaled nearly 200 years decided that it was time to speak out.