With the decision in Graham v. Florida, we are likely to see a renewal of the debate over whether and how to use foreign caselaw in interpreting the U.S. Constitution. As in his earlier decision in Roper v. Simmons, 543 U. S. 551 (2005), Justice Anthony Kennedy again utilized foreign sources to interpret the cruel and unusual punishment clause of the Eighth Amendment to the U.S. Constitution. This case involved a juvenile who had committed an armed robbery, received probation, and then received a life sentence for violating the probation by participating in a home invasion. The question of whether a life sentence without the possibility of parole was appropriate for juveniles convicted of crimes that did not involve killing. Kennedy found that only 11 nations allowed for life sentences in theory and only two–the United States and Israel–use it in practice. All of the juveniles serving life sentences in Israel were convicted of homicide. Kennedy’s reliance on the material is as persuasive, not binding authority: “The Court has treated the laws and practices of other nationsand international agreements as relevant to the Eighth Amendment not because those norms are binding or con-trolling but because the judgment of the world’s nationsthat a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.”
Predictably, this provoked comment from the dissenting justices. Justice Thomas, joined by Justice Scalia, notes the earlier debate and points out that “present legislation notwithstanding, democracies around the world remain free to adopt life-without-parole sentences for juvenileoffenders tomorrow if they see fit. Starting today, ours can count itself among the few in which judicial decree prevents voters from making that choice.”
The propriety of the practice of looking to foreign law has been subject to extensive analysis, including in an excellent new book by Vicki Jackson of Georgetown. My prediction is that the decision will reignite the debate just in time for Solicitor General Kagan’s confirmation hearings: expect the question of the propriety of citing foreign law to be a central focus for Senators Kyl and Sessions.