Roper v. Simmons and International Law
![handle is hein.journals/denlr83 and id is 219 raw text is: ROPER V. SIMMONS AND INTERNATIONAL LAW
INTRODUCTION
There is a gap between the United States and the much of the world
on the issue of capital punishment.' Legal systems across the globe have
employed the death penalty since the beginnings of civilization, 2 and
colonial America inherited the practice from its British forefathers.3
Formerly, these multinational origins fostered concurrence on the ethi-
cality of capital punishment. Hence, when the framers of the United
States Constitution crafted the Eighth Amendment's4 ban on cruel and
unusual punishments, the death penalty fell outside of the Amendment's
ambit as capital punishment was deemed morally acceptable by both
American society and international standards.5 However, in the last few
decades, this common path has split.6 A global movement has emerged
that rejects capital punishment, compelling much of the world to abolish
its use.7 The United States has not embraced this movement as fully; and
the United States Supreme Court's slow abrogation of death penalty laws
under the Eighth Amendment has not matched the enthusiasm of its in-
ternational brethren.8 Consequently, a significant disparity has arisen
between the United States and the international community.9 This dis-
parity has played a volatile role in Supreme Court deliberations as the
Court has struggled to define what part, if any, international law should
have in the Court's decisions regarding capital punishment.
Recently, in Roper v. Simmons,'0 the United States Supreme Court
abolished the juvenile death penalty. The United States' use of the
1. See William A. Schabas, International Law and the Abolition of the Death Penalty, in
BEYOND REPAIR? AMERICA'S DEATH PENALTY 178, 210 (Stephen P. Garvey ed., 2003).
2. Jeffery M. Banks, Student Article, In Re Stanford: Do Evolving Standards of Decency
Under Eighth Amendment Jurisprudence Render Capital Punishment Inapposite for Juvenile Of-
fenders?, 48 S.D. L. REV. 327, 338 (2003).
3. Harold Hongju Koh, Paying Decent Respect to World Opinion on the Death Penalty,
35 U.C. DAVIS L. REv. 1085, 1092 (2002).
4. U.S. Const. amend. VIII.
5. Koh, supra note 3, at 1091-92.
6. See Franklin E. Zimring, Postscript: The Peculiar Present of American Capital Punish-
ment, in BEYOND REPAIR? AMERICA'S DEATH PENALTY 212, 213 (Stephen P. Garvey ed., 2003).
7. Koh, supra note 3, at 1093-95. The recent swell of international opinion against capital
punishment flows from an international human rights movement triggered by the horrors of the
Holocaust and World War II. Id. at 1092-93. This movement has realized abolition throughout
Europe and much of the world. See id. at 1094-95. Currently, a total of 120 countries have abol-
ished the death penalty in law or practice. Amnesty International, Facts and Figures on the Death
Penalty, http://www.amnesty.org (follow Campaigns hyperlink; then follow The Death Penalty
hyperlink; then follow Facts and Statistics hyperlink; then follow Facts and Figures on the Death
Penalty hyperlink) (last visited Sept. 6, 2005) [hereinafter Amnesty International Facts & Figures].
8. Dana L. Bogie, Note, Life or Death? The Death Penalty in the United States and the New
Republic of South Africa, 3 TULSA J. COMP. & INT'L L. 229, 245 (1996).
9. Schabas, supra note 1, at 196.
10. 125 S. Ct. 1183 (2005).](ViewImageLocal?handle=hein.journals/denlr83&div=12&collection=&method=preview&ext=.png&size=3)
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