On March 1, 2005, the Supreme Court held that the Eighth and Fourteenth Amendments to the U.S. Constitution forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed.
Justice Anthony M. Kennedy, writing for the five-judge majority, said that a new decision was necessary to keep pace with the “evolving standards of decency” of what constitutes cruel and unusual punishments in the Supreme Court’s view. He noted that more than thirty states (five more than sixteen years ago at the time the Supreme Court last considered the issue) at present reject the death penalty for juveniles. Justice Kennedy’s analysis consisted of three parts. First, in an assessment of whether U.S. society had formed a consensus against juvenile executions, Justice Kennedy found that, “the objective indicia of consensus in this case – the rejection of the juvenile death penalty in the majority of States; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice – provide sufficient evidence that today our society views juveniles, in the words Atkins used respecting the mentally retarded, as ‘categorically less culpable than the average criminal.’ 536 U.S. at 316.”

The second part of Justice Kenney’s analysis was to move beyond counting by states to decide, “in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment for juveniles,” concluding that “three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders.” The differences were: “a lack of maturity and an underdeveloped sense of responsibility”; vulnerability to peer pressure; and a personality that is still in formation, making it “less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.”

The final stage of the Justice Kennedy’s analysis referred to international developments that have left the United States alone in supporting juvenile executions. Justice Kenney stated that “it is fair to say that the United States now stands alone in a world that has turned its face against the juvenile death penalty.” He noted that, since 1990, only seven countries outside the United States (China, the Democratic Republic of Congo, Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen) have executed people for crimes they committed as juveniles, and all seven have disavowed the practice. There have been nineteen juvenile executions in the United States since 1990, most recently in 2003. Justice Kennedy said that while the court was not bound by foreign developments, “it is proper that we acknowledge the overwhelming weight of international opinion” for its “respected and significant confirmation for our own conclusions.”

Excepts from the majority opinion concerning international standards:

Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty. This reality does not become controlling, for the task of interpreting the Eighth Amendment remains our responsibility. Yet at least from the time of the Court's decision in Trop, the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.” 356 U. S., at 102-103 (plurality opinion) (“The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime”); see also Atkins, supra, at 317, n. 21 (recognizing that “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved”); Thompson, supra, at 830-831, and n. 31 (plurality opinion) (noting the abolition of the juvenile death penalty “by other nations that share our Anglo-American heritage, and by the leading members of the Western European community,” and observing that “[w]e have previously recognized the relevance of the views of the international community in determining whether a punishment is cruel and unusual”); Enmund, supra, at 796-797, n. 22 (observing that “the doctrine of felony murder has been abolished in England and India, severely restricted in Canada and a number of other Commonwealth countries, and is unknown in continental Europe"); Coker, supra, at 596, n. 10 (plurality opinion) (“It is ... not irrelevant here that out of 60 major nations in the world surveyed in 1965, only 3 retained the death penalty for rape where death did not ensue”).

As respondent and a number of amici emphasize, Article 37 of the United Nations Convention on the Rights of the Child, which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18. United Nations Convention on the Rights of the Child, Art. 37, Nov. 20, 1989, 1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468-1470 (entered into force Sept. 2, 1990); Brief for Respondent 48; Brief for European Union et al. as Amici Curiae 12-13; Brief for President James Earl Carter, Jr., et al. as Amici Curiae 9; Brief for Former U. S. Diplomats Morton Abramowitz et al. as Amici Curiae 7; Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 13-14. No ratifying country has entered a reservation to the provision prohibiting the execution of juvenile offenders. Parallel prohibitions are contained in other significant international covenants. See ICCPR, Art. 6(5), 999 U. N. T. S., at 175 (prohibiting capital punishment for anyone under 18 at the time of offense) (signed and ratified by the United States subject to a reservation regarding Article 6(5), as noted, supra, at 13); American Convention on Human Rights: Pact of San José, Costa Rica, Art. 4(5), Nov. 22, 1969, 1144 U. N. T. S. 146 (entered into force July 19, 1978) (same); African Charter on the Rights and Welfare of the Child, Art. 5(3), OAU Doc. CAB/LEG/24.9/49 (1990) (entered into force Nov. 29, 1999) (same).

Excerpts from Justice O’Conner’s Dissent:

I turn, finally, to the Court’s discussion of foreign and international law. Without question, there has been a global trend in recent years towards abolishing capital punishment for under-18 offenders. Very few, if any, countries other than the United States now permit this practice in law or in fact. See ante, at 22-23. While acknowledging that the actions and views of other countries do not dictate the outcome of our Eighth Amendment inquiry, the Court asserts that “the overwhelming weight of international opinion against the juvenile death penalty ... does provide respected and significant confirmation for [its] own conclusions.” Ante, at 24. Because I do not believe that a genuine national consensus against the juvenile death penalty has yet developed, and because I do not believe the Court’s moral proportionality argument justifies a categorical, age-based constitutional rule, I can assign no such confirmatory role to the international consensus described by the Court. In short, the evidence of an international consensus does not alter my determination that the Eighth Amendment does not, at this time, forbid capital punishment of 17-year-old murderers in all cases.

Nevertheless, I disagree with Justice Scalia’s contention, post, at 15-22 (dissenting opinion), that foreign and international law have no place in our Eighth Amendment jurisprudence. Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency. See Atkins, 536 U. S., at 317, n. 21; Thompson, 487 U. S., at 830-831, and n. 31 (plurality opinion); Enmund, 458 U. S., at 796-797, n. 22; Coker, 433 U. S., at 596, n. 10 (plurality opinion); Trop, 356 U. S., at 102-103 (plurality opinion). This inquiry reflects the special character of the Eighth Amendment, which, as the Court has long held, draws its meaning directly from the maturing values of civilized society. Obviously, American law is distinctive in many respects, not least where the specific provisions of our Constitution and the history of its exposition so dictate. Cf. post, at 18-19 (Scalia, J., dissenting) (discussing distinctively American rules of law related to the Fourth Amendment and the Establishment Clause). But this Nation's evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries. On the contrary, we should not be surprised to find congruence between domestic and international values, especially where the international community has reached clear agreement – expressed in international law or in the domestic laws of individual countries – that a particular form of punishment is inconsistent with fundamental human rights. At least, the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus. The instant case presents no such domestic consensus, however, and the recent emergence of an otherwise global consensus does not alter that basic fact.

Excerpts from Justice Scalia’s Dissent for himself, Chief Justice Rehnquist, and Justice Thomas:
The Court begins by noting that “Article 37 of the United Nations Convention on the Rights of the Child, [1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468-1470, entered into force Sept. 2, 1990], which every country in the world has ratified save for the United States and Somalia, contains an express prohibition on capital punishment for crimes committed by juveniles under 18." Ante, at 22 (emphasis added). The Court also discusses the International Covenant on Civil and Political Rights (ICCPR), December 19, 1966, 999 U. N. T. S. 175, ante, at 13, 22, which the Senate ratified only subject to a reservation that reads:
“The United States reserves the right, subject to its Constitutional restraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crime committed by persons below eighteen years of age.” Senate Committee on Foreign Relations, International Covenant on Civil and Political Rights, S. Exec. Rep. No. 102-23, (1992).

Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position. That the Senate and the President – those actors our Constitution empowers to enter into treaties, see Art. II, §2 – have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces. That the reservation to the ICCPR was made in 1992 does not suggest otherwise, since the reservation still remains in place today. It is also worth noting that, in addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, then the Court's reassurance that the death penalty is really not needed, since “the punishment of life imprisonment without the possibility of parole is itself a severe sanction,” ante, at 18, gives little comfort.

More fundamentally, however, the basic premise of the Court’s argument--that American law should conform to the laws of the rest of the world – ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law – including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively American. When we adopted that rule in Mapp v. Ohio, 367 U. S. 643, 655(1961), it was “unique to American Jurisprudence.” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 415(1971) (Burger, C. J., dissenting). Since then a categorical exclusionary rule has been “universally rejected” by other countries, including those with rules prohibiting illegal searches and police misconduct, despite the fact that none of these countries “appears to have any alternative form of discipline for police that is effective in preventing search violations.” Bradley, Mapp Goes Abroad, 52 Case W. Res. L. Rev. 375, 399-400 (2001). England, for example, rarely excludes evidence found during an illegal search or seizure and has only recently begun excluding evidence from illegally obtained confessions. See C. Slobogin, Criminal Procedure: Regulation of Police Investigation 550 (3d ed. 2002). Canada rarely excludes evidence and will only do so if admission will “bring the administration of justice into disrepute.” Id., at 550-551 (internal quotation marks omitted). The European Court of Human Rights has held that introduction of illegally seized evidence does not violate the “fair trial” requirement in Article 6, §1, of the European Convention on Human Rights. See Slobogin, supra, at 551; Bradley, supra, at 377-378.

The Court has been oblivious to the views of other countries when deciding how to interpret our Constitution's requirement that “Congress shall make no law respecting an establishment of religion... .” Amdt. 1. Most other countries – including those committed to religious neutrality – do not insist on the degree of separation between church and state that this Court requires. For example, whereas “we have recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 842 (1995) (citing cases), countries such as the Netherlands, Germany, and Australia allow direct government funding of religious schools on the ground that “the state can only be truly neutral between secular and religious perspectives if it does not dominate the provision of so key a service as education, and makes it possible for people to exercise their right of religious expression within the context of public funding.” S. Monsma & J. Soper, The Challenge of Pluralism: Church and State in Five Democracies 207 (1997); see also id., at 67, 103, 176. England permits the teaching of religion in state schools. Id., at 142. Even in France, which is considered “America's only rival in strictness of church-state separation,” “[t]he practice of contracting for educational services provided by Catholic schools is very widespread.” C. Glenn, The Ambiguous Embrace: Government and Faith-Based Schools and Social Agencies 110 (2000).

And let us not forget the Court's abortion jurisprudence, which makes us one of only six countries that allow abortion on demand until the point of viability. See Larsen, Importing Constitutional Norms from a “Wider Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L. J. 1283, 1320 (2004); Center for Reproductive Rights, The World's Abortion Laws (June 2004), http://www.reproductiverights.org/pub_fac_abortion_laws.html. Though the Government and amici in cases following Roe v. Wade, 410 U. S. 113 (1973), urged the Court to follow the international community's lead, these arguments fell on deaf ears. See McCrudden, A Part of the Main? The Physician-Assisted Suicide Cases and Comparative Law Methodology in the United States Supreme Court, in Law at the End of Life: The Supreme Court and Assisted Suicide 125, 129-130 (C. Schneider ed. 2000).