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Supreme Court Decision Notes Argument Made by YLS Professor Harold Koh

Footnote number twenty-one of Supreme Court Justice John Paul Stevens's opinion for the court in the case of Atkins v. Virginia notes that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." This was one of several pieces of evidence that the court used to demonstrate that the movement by state legislatures over the last several years to ban the execution of the mentally retarded "reflects a much broader social and professional consensus."

The Court overturned the death sentence of Daryl Atkins, dismissing the execution of mentally retarded individuals as "cruel and unusual punishment" under the Eighth Amendment. Earlier cases had established that "the [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." In 1989, the Supreme Court ruled in Penry v. Lynaugh that there was no clear consensus that executing the mentally retarded violated this rubric but left open the possibility that one could emerge. The Atkins opinion noted that sixteen states subsequently enacted bans on such executions--while no states repealed such a ban--and declared "a national consensus has developed." The Court left the implementation of this new Constitutional standard to the states, but as many as 200 death row inmates may be affected, according to the New York Times.

The noting of international sentiment in the Court's opinion is something that Harold Hongju Koh, Gerard C. and Bernice Latrobe Smith Professor of International Law at YLS, worked hard to establish. Koh submitted an amicus curiae brief that he, along with several YLS students, authored on behalf of nine career U.S. diplomats. The brief pointed out that the U.S. is the only democratic nation in the world that executes people with mental retardation and further argued that this practice is straining U.S. diplomatic relations and harming its position as a human rights leader.

In an article appearing in the June 2002 U.C. Davis Law Review, titled Paying "Decent Respect" to World Opinion on the Death Penalty, Koh describes the history of the incorporation of international law in U.S. law--from the Declaration of Independence's appeal to the international community out of a "decent respect to the opinions of mankind" to the twentieth century's multilateral treaties and UN resolutions. Koh also documents the personal development that led him to oppose the death penalty and to decide that international opinion could be brought to bear on the practice through the Eighth Amendment's "cruel and unusual" clause. Finally he discusses how the Atkins case provided a vehicle to express this idea.

Koh closes with this statement: "I hope this lecture shows that Justice Blackmun spoke the truth: our country's continued adherence to the death penalty lessens us, both as a nation and as a people. As Americans committed to transnational legal process, we must do what we can to make the day arrive when this nation, conceived in liberty, again pays decent respect to the world opinion on the death penalty."