International Materials and the Eighth Amendment: Some Thoughts on Method after Graham V. Florida

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INTRODUCTION

In Graham v. Florida, (1) the Supreme Court of the United States decided that imposition of a life without parole sentence ("LWOP") on offenders who committed non-homicide offenses as juveniles (2) violates the Eighth Amendment's prohibition on cruel and unusual punishment) The petitioner briefs in two cases raising this issue--Graham and Sullivan v. Florida--focused on convincing the Court that the LWOP sentence in these circumstances contravened the proportionality requirement embedded in the Eighth Amendment. (4) Moreover, the briefs invoked the Court's recent decision in Roper v. Simmons, (5) which held the death penalty for juvenile offenders unconstitutional. (6) Each brief also contained a fleeting reference to how international materials have treated the juvenile LWOP sentence-three paragraphs in Graham, (7) and only one in Sullivan. (8) An amicus curiae brief submitted by Amnesty International presented a more fully developed argument that the Court should look to international materials, and in so doing, should hold the juvenile LWOP sentence unconstitutional under the Eighth Amendment. (9)

Recent years have seen considerable scholarly controversy over whether the Supreme Court of the United States, or indeed any American court, should use international and foreign law when interpreting the U.S. Constitution. (10) Much of the controversy followed the Court's decisions in Atkins v. Virginia, (11) Lawrence v. Texas, (12) and, most recently, Roper. (13) The justices themselves, perhaps most notably Justice Breyer and Justice Scalia, have entered the fray by addressing the issue outside the courtroom in debates and public addresses. (14) A couple of bills addressing the issue briefly appeared in Congress, although neither secured enough votes for passage. (15)

Rather than engage in wide-ranging debate about the place of international materials (16) in constitutional interpretation, this Note focuses on the narrower question of how courts could consider international and comparative law in the analysis of cruel and unusual punishment under the Eighth Amendment. (17) Could is a purposefully chosen word. In a debate marked by strong--and conflicting--normative claims as to the propriety of using international materials in constitutional interpretation, (18) the focus here is on method, not appropriateness. To the extent this Note makes a normative claim, it is this: if American courts are to consider international materials when deciding the constitutionality of a given punishment under the Eighth Amendment, they should do so in a principled manner, or not at all. Developing such a principled manner--and applying it to the Graham case--is this Note's contribution to the ongoing debate about the use of international materials in American constitutional interpretation.

In the spirit of moving the debate beyond generalities about foreign law and American constitutional interpretation, (19) this Note focuses narrowly on the Eighth Amendment. The decision to focus on the analysis of cruel and unusual punishment under the Eighth Amendment is not arbitrary. Looking in particular at the Court's death penalty jurisprudence, Part I justifies reference to international materials as part of the Eighth Amendment analysis on two grounds. First, both the relevant constitutional text and the text of the standard most commonly applied to such analysis permit--and arguably envision---consideration of international materials. Second, the Court has now developed a body of Eighth Amendment precedent in which international materials have played some, even if not a clearly identifiable, role.

Part II addresses what is arguably the most difficult problem: how to incorporate international materials into Eighth Amendment analysis. Again focusing on the line of death penalty cases, this Part discusses three ways that consideration of international materials can enter the analysis. First, such materials can be considered as part of the Court's inquiry into the "objective indicia of consensus. …