Prof. Harold Koh to Address Human Rights Workshop on "The Eighth Amendment and Execution of the Mentally Retarded," Nov. 30
Professor Harold Koh says his talk at the Human Rights Workshop will begin with the question "How does the U.S. policy of executing people, . . . particularly the mentally retarded, increasingly lead us into a state of isolation internationally?"
In his experience as assistant secretary of state for democracy, human rights, and labor in the Clinton administration, Koh increasingly came to believe that the continuing existence of the death penalty was causing damage to the standing of the U.S. as a leader in human rights. More than half the countries in the world have abolished the death penalty, and, according to Koh, the U.S. is "completely isolated" in executing the mentally retarded. Koh points out that this is a difficult position to be in while simultaneously trying to mobilize foreign opinion for the battle against terrorism.
The next question that Koh asks is "How should international opinion about the death penalty be expressed in our constitutional law?"
The opportunity to answer this, at least partially, is approaching in the case of Atkins v. Virginia, which the Supreme Court is scheduled to hear in February 2002. Daryl Atkins, who has an IQ of 59, was accused of killing a man to get money for beer.
Koh argues that international standards as well as domestic ones can be integrated into judgment of such a case through interpretation of the "cruel and unusual" clause in the Eighth Amendment. He explains that what amounts to cruel and unusual punishment is determined by "evolving standards of decency." In 1989, the Supreme Court ruled that the Constitution did not forbid execution of the retarded, but indicated that the "standards of decency" could change enough to make the practice untenable.
In 1989, only two states and the federal government explicitly outlawed executing the mentally retarded. Since then sixteen more states have enacted bans, while twelve states don't allow capital punishment at all. Should the decision on the Atkins case incorporate the world's revulsion at this practice, as well as the trend away from it within the United States?
Koh, along with Deena Hurwitz, the Robert M. Cover/Allard K. Lowenstein Fellow in International Human Rights, and a number of YLS students in the Lowenstein Clinic, wrote an amicus curiae brief on the case arguing that international standards should count. And, he adds that the decision in this case could affect how international opinion is reflected in other human rights issues within the U.S.
Koh predicts that the Atkins case will be decided by how "particular swing justices view the need to respect foreign opinion."
In addition, Koh says that he will tell the story of "my personal views of the death penalty and how they have changed" in his talk. He will describe how, between his days as a law student and the present, he came to believe that many of the arguments in favor of the death penalty proved untrue.