Will “International” Norms Override Civil Liberties and Protections Against Violent Crime?

by Hans Bader on December 9, 2011 · 3 comments

in International, Legal, Personal Liberty, Sanctimony

The Supreme Court has agreed to hear challenges to life sentences without parole for teenage murderers, in Miller v. Alabama and Jackson v. Hobbs, two cases in which teen killers argue that such sentences always violate the Eighth Amendment’s ban on cruel and unusual punishment, no matter how horrible the crime. 

In Graham v. Florida (2010), the Supreme Court, in a 5-to-4 vote citing “international opinion,” outlawed life imprisonment without parole for juveniles who commit rape, torture, and other non-homicide crimes, ruling that such sentences violate the U.S. Constitution’s Eighth Amendment. In Roper v. Simmons (2005),  the Supreme Court struck down the death penalty for juveniles in all cases, including homicide cases, citing the “overwhelming weight of international opinion against the juvenile death penalty,” although its ruling cited the existence, as a reasonable alternative to the death penalty, of the “punishment of life imprisonment without the possibility of parole,” which was “itself a severe sanction.”

Left-wing lawyers would like to ban life sentences even for adults who repeatedly torture other people to death. Earlier, New Zealand was pressured to end life without parole for adults who commit “the worst” murders, based on a supposed rule of “customary international law” against life imprisonment without parole. Citing Spanish law and supposed international human-rights norms, Spain now refuses to extradite terrorists who plot mass murder to the United States unless the U.S. agrees not to seek life imprisonment without parole.

In relying on “international opinion” to decide the case, the Supreme Court set a dangerous precedent for civil liberties, since foreign legal systems and international lawyers are often hostile to free speech, religious freedom, and other basic civil liberties, and the right of homeowners to defend themselves against criminals by wielding a knife or gun in self-defense. The U.N. Human Rights Council says there is no human right to self-defense, and that, quite the contrary, international human rights norms require “very severe gun control.”

The libertarian Cato Institute, which frequently files amicus briefs in the Supreme Court seeking to promote civil liberties and privacy rights, joined an amicus brief in the Graham case asking the court not to rely on “international norms,” since doing so would “undermine the democratic process and rule of law, casting considerable uncertainty over many U.S. laws.”   The Competitive Enterprise Institute also joined that brief.

Opposition to life sentences is based heavily on snob appeal, sanctimony, and contempt for the unwashed masses. Eighth Amendment challenges to life sentences are based on supposedly  “evolving” notions of decency that are not in fact shared by most contemporary Americans, who continue to support both life sentences and the death penalty in public opinion polls; and on “international” norms against life imprisonment that conflict with their own country’s practices and values.

By citing “evolving” notions of decency, and “international opinion,” left-wing lawyers get to feel morally superior to their fellow citizens, and get to view themselves as being more cosmopolitan and highly evolved than the average peon. It makes them feel sophisticated and refined to argue that society should forgive and parole violent criminals who have supposedly “rehabilitated” themselves (even though many “model inmates” have gone on to commit horrible crimes after being released on parole — seldom against wealthy lawyers).   These sanctimonious lawyers have forgotten the wisdom of the great Athenian lawgiver Solon, who observed that true justice will not be achieved until those who have not been victimized by crime are just as indignant as those who were victimized. As Midrash sagely notes, “He who is kind to the cruel is cruel to the kind.”

Courts should not rely on “international opinion” to decide cases, since it is vague and manipulable. So-called international law is applied selectively by lawyers and judges, who cite real or imagined “international law” to push the ideological goals they support, while ignoring actual international court rulings they don’t like, like foreign court rulings barring punitive damages or limiting damages under the Warsaw Convention (as in Olympic Airways v. Husain).

Left-wing lawyers take vague international treaties and interpret them as mandating their ideological wishlists, like restricting criticism of Islam and minority religions as “hate speech,” banning Mother’s Day as sexist, and mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring “redistribution of wealth,” “affirmative action,” “gender studies” classes, government-sponsored “access to rapid and easy abortion,” and “the application of quotas and numerical goals.” Never mind that most countries don’t even have affirmative action.

But left-wing lawyers ignore foreign law and world opinion when it calls into question liberal policies in the United States. One classic example is the horror that most countries’ courts have for the American practice of letting virtually unguided juries award punitive damages. In most of the world, punitive damages are forbidden. But you will never see a liberal Supreme Court justice talk about “international law” or “international opinion” when it comes to punitive damages, which are sacrosanct in the eyes of some liberal judges.

Ultimately, even many liberals may come to regret their reliance on “international opinion,” which sets a dangerous precedent for civil liberties. In USA Today, liberal law professor Jonathan Turley discussed how international norms against blasphemy and the “defamation” of religions promoted at the United Nations are undermining freedom of speech and resulting in restrictions on speech perceived as inconsistent with Islam: “Around the world, free speech is being sacrificed on the altar of religion. Whether defined as hate speech, discrimination or simple blasphemy, governments are declaring unlimited free speech as the enemy of freedom of religion.” Turley describes cases such as the arrest of a Dutch cartoonist for depicting Christian and Muslim fundamentalists as zombies; the investigation of an Italian comedian for joking that in 20 years, the Pope will be in hell; the exclusion of a Dutch politician from Britain because he made a movie describing Islam’s holy book as “fascist”; and the prosecution of writers for calling Mohammed a “pedophile” because of his marriage to 6-year-old Aisha (which was consummated when she was 9).

In Canada, hate speech laws passed in the name of “human rights” have been used to punish ministers for anti-gay sermons. In the U.S., college hate-speech and “harassment” codes have been used to discipline students for criticizing affirmative action or homosexuality, or writing about the racial implications of the death penalty. Ironically, hate speech laws have often been used against minorities in the Third World, with prosecutors arguing that advocating the rights of minorities is an inflammatory form of racial separatism.

Velia Koppenhoefer December 10, 2011 at 10:36 am

Juvenile life without parole (JLWOP) sentences are inhumane sentences that abandon the concept of redemption and ignore the inherent dignity of young people. To see an example about how Michigan imposed a death by incarceration sentence on a juvenile named Efrén Paredes, Jr. visit: http://4Efren.com and http://Facebook.com/Free.Efren

Hans Bader December 10, 2011 at 1:59 pm

Banning life sentences for all minors will harm teenagers and children most, since the victims of teenage killers and torturers are disproportionately other teenagers or children (like the teenager who abducted and tortured little children to death because he liked the way it sounded when he shattered their legs).

Beneficiaries of the Supreme Court’s ruling in Graham v. Florida included criminals like “Milagro Cunningham, a 17-year-old who beat and raped an 8-year-old girl before leaving her to die under 197 pounds of rock” (the little girl somehow managed to survive).

James Wilson December 12, 2011 at 12:51 pm

It is wrong to invoke “international law” to decide legal cases in one country (shouldn’t international law refer to relations BETWEEN nations, rather than WITHIN nations?). Nevertheless, perhaps the Court’s deference to international norms in interpreting the 8th Amendment is NOT a precedent for interpreting the 1st Amendment.

The reason I say this is simple. In March, the Supreme Court upheld the right of the anti-gay Westboro church to hold demonstrations near military funerals. Surely no other country would allow this. The 1st Amendment seems to be pretty safe for now and the near future.

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