Putting the Nail in the Coffin: Isn’t It Time to Let European Consensus Doctrine Put an End to the Use of the Death Penalty in the United States?

Abstract

The European Court of Human Rights (ECtHR) is responsible for enforcing compliance with the European Convention of Human Rights (the Convention), and it employs consensus doctrine to analyze the merits of claims. The European consensus doctrine involves a comparative analysis of the domestic laws of the 47 Member States to identify jurisprudential trends. The Convention is considered a living instrument that may be interpreted broadly and in novel ways in accordance with 'present-day conditions.' The ECtHR seeks to harmonize and to advance the protection of human rights across Europe by applying consensus doctrine to its case-law. The United States Supreme Court likewise is often obliged to analyze and compare the state laws of the 50 separate states with an eye to ensuring compliance with the United States Constitution. Some Supreme Court Justices prefer to stay 'within the four corners' of the Constitution in their efforts to interpret its meaning, while others argue that they must look to 'evolving standards of decency that mark the progress of a maturing society.' This article proposes that the Supreme Court should routinely and consistently use the techniques of European consensus doctrine in its death penalty jurisprudence, both by identifying trends within the 50 states regarding capital punishment and by looking at international law and the treaties to which the US is a party.

This is the draft edition of the article submitted to The Hague Yearbook of International Law.

Keywords: capital punishment, Eighth Amendment, 8th Amendment