The Foreign Service Journal, October 2003

All of this caused little ripple in the U.S. media or in public opinion. For example, a poll conducted in 2000 by Newsweek found that, even among opponents of the death penalty, only 2 percent gave as the main reason for opposition that the death penalty “hurts America’s image.” But now there are signs of change. New Weight to World Opinion In 2001, the Supreme Court surprised many in the U.S. by agreeing to hear the appeal of Earnest McCarver from North Carolina, whose attor- neys had raised the issue of his mental retardation. At the time of this grant of certiorari, only 13 of 38 death penalty states had passed laws forbidding the execution of the mentally retarded. When the Supreme Court had first addressed this issue in 1989 in Penry v. Lynaugh , it found insufficient evidence of a national consensus rejecting such executions. It was not clear that the standards of decency had now evolved to the extent that these executions should be declared uncon- stitutional. McCarver’s appeal was eventually ruled moot when the state of North Carolina joined a growing list of states banning the execution of the mentally retarded. But the Court quickly took up a new case, Atkins v. Virginia , and in 2002, with 18 states outlawing such executions and a clear trend toward more such bans, it ruled that this practice had become a cruel and unusual punishment. From an international perspective, this case was sig- nificant for two reasons. First, it marked the first major removal of a whole class of inmates from death row in many years. The international community, through res- olutions at the United Nations Commission on Human Rights, and in other forums, had called for just such reform on many occasions. Second, the Court’s opinion in Atkins v. Virginia made specific reference to the ami- cus curiae brief filed by the European Union support- ing such a ban. The clear inference of this reference was that international opinion played a role in deter- mining the standards of decency as they evolved in a maturing society. The 18 states banning such executions did not constitute a majority of the death penalty states, yet the Court found evidence of a con- sensus when these states were joined with many other factors, including world opinion. It should be added that among other amicus briefs supporting the exemption was one submit- ted by former members of the U.S. diplomatic corps (see excerpts, p. 22). International opinion has gained even greater stature in U.S. court decisions in recent months. Perhaps the two most important Supreme Court opinions from the 2002-2003 term were Lawrence v. Texas and Grutter v. Bollinger . Neither of these involved the death penalty, but instead dealt with the right to pri- vacy for consenting adults in sexual relations ( Lawrence ) and affirmative action programs at universities ( Grutter ). In Lawrence , the Court overturned a prior ruling in which reference had been made to an asserted unifor- mity of laws forbidding homosexual relations. In rebut- tal of this notion, Justice Kennedy pointed to the con- trary opinion of an advisory committee to the British Parliament and to a decision of the European Court of Human Rights as examples of authority upholding pri- vacy rights. Such a reference in a sensitive matter involving states’ rights, morality, and the law sent a pow- erful new message about the weight to be given inter- national law. In Grutter , the Supreme Court upheld a limited use of affirmative action programs such as the one employed at the University of Michigan Law School. Justice Ginsburg concurred in the result, and specifical- ly cited international law on the same matter: “The Court’s observation that race-conscious programs ‘must have a logical end point’ accords with the international understanding of the office of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimination, ratified by the United States in 1994, endorses ‘special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, 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 35 A poll conducted in 2000 by Newsweek found that, even among opponents of the death penalty, only 2 percent gave as the main reason for opposition that the death penalty “hurts America’s image.”