Posted by Orin Kerr:
What Does Foreign Law Teach Us About the Constitutionality of Methods of
Execution?:
http://volokh.com/archives/archive_2007_12_30-2008_01_05.shtml#1190749819
Several Supreme Court Justice believe that foreign law and practice
can help elucidate the meaning of the United States Constitution They
contend that the experience and practices of other countries are
relevant to the meaning of our founding charter; what works for other
countries may work for us, and we need to be open-minded to the
practices and experiences of other nations rather than be arrogant and
think other countries have nothing to teach us. This raises an
interesting question for those following [1]Baze v. Rees, next week's
case on the constitutionality of methods of execution: In countries
that have the death penalty, how do they carry out their executions?
Unfortunately, I couldn't find a good summary of the methods of
execution in all [2]74 countries that have the death penalty. However,
I did learn that the clear leader in terms of experience with capital
punishment is China: It is estimated that China is responsible for
[3]about 80% of the executions worldwide every year. In China, the
traditional method of execution appears to be the firing squad. Here's
how [4]one website described the process:
Executions are often carried out immediately after a public
sentencing rally and the criminal's family is made to pay for the
bullet. The prisoner's arms are shackled behind them and they are
made to kneel down before receiving a single bullet fired at close
range into the back of the head or neck by a soldier or policeman
or by a bullet fired into the heart from behind using an automatic
rifle.
However, there is a growing movement in China to replace this with
lethal injection; lethal injection was first used about ten years ago
and [5]appears to be gaining in popularity as a more humane method of
execution. According to the [6]USA Today, lethal injection in China is
implemented using so-called "death vans," mobile execution chambers
that travel from town to town. One person has estimated that [7]as
much as 40% of Chinese executions currently are carried about by the
"death vans" instead of by firing squad. Unfortunately, I was unable
to find anything on the specific cocktail of drugs the "death vans"
use to carry out executions in China.
In any event, China is of course only one example. Those who believe
foreign practices are relevant to the meaning of the U.S. Constitution
would want to look more broadly at many other nations, including Saudi
Arabia and Iran, two countries with high execution rates. And of
course I'm not endorsing this method of Constitutional interpretation:
I happen to think practices in China and elsewhere are utterly
irrelevant. But I thought it would be interesting to start the inquiry
for those who believe that foreign practices inform the meaning of the
U.S. Constitution.
References
1. http://www.scotuswiki.com/index.php?title=Baze_v._Rees
2. http://news.bbc.co.uk/2/hi/in_depth/4926224.stm
3. http://www.amnestyusa.org/document.php?lang=e&id=ENGUSA20060419001
4. http://www.richard.clark32.btinternet.co.uk/shooting.html
5. http://web.amnesty.org/wire/May2003/China
6. http://www.usatoday.com/news/world/2006-06-14-death-van_x.htm
7. http://www.usatoday.com/news/world/2006-06-14-death-van_x.htm
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