Recently in International Category

Among the countries whose legal system is based on English law, only the United States and a few Caribbean countries retain the death penalty.  Opponents are fond of saying that the other countries have rejected the death penalty.  Yet when you ask the people instead of the governments of those other countries, you get a very different picture.  A poll by the Toronto Star and Angus Reid indicates that opinion north of the border is not much different from ours. Richard Brennan has this story in the Star.  Angus Reid's summary is here and full report is here.

As with U.S. polls, responses vary greatly with the wording of the question.  The most straightforward question asks the actual legislative issue:  "As you may know, Canada eliminated the death penalty for murder in July 1976. All things considered, would you support or oppose reinstating the death penalty for murder in Canada?"  The ayes swamp the nays, a bit under 2-to-1:  61% yes, 34% no, 5% not sure.

On a somewhat more general question, 8% say the death penalty is "always appropriate," 63% say sometimes, 23% say never, and 5% are not sure.  The question does not specify that it is asking about punishment for murder, but presumably nearly all respondents would understand that.  Comparing this question with the previous one, it appears that about 11% of people who think the death penalty is sometimes appropriate nonetheless oppose reinstatement, probably persuaded by practical arguments of cost or the possibility of executing an innocent person.

On the badly worded question that implies a single punishment choice for all murders, half of Canadians choose life in prison, as do about half of the people of the United States.  "All things considered, which of these two approaches would you prefer as a punishment for convicted murderers in Canada?"  LWOP: 50%; death 38%; not sure 12%.  (See my prior criticisms of this question here and here.) 

A number of entries on C&C have questioned the growing influence of international law in Supreme Court jurisprudence.  This influence has been particularly noteworthy in the Court's criminal law decisions  --  ones where outcomes favoring the criminal have been supported by reference to international law (as opposed, say, to the law adopted by the various states).  See, e.g., Roper v. Simmons;  Graham v. Florida; Atkins v. Virginia.  The Court usually disclaims that it finds international law controlling  --  while recurring to it again and again.  This is not exactly a non-denial denial, but it has its similarities.

A New York Times article by Adam Liptak illustrates more vividly than I could one of the best reasons the Supreme Court  --  the ultimate guardian of our Constitution  --  should reject, rather than embrace, international law:  The law of other nations increasingly and explicitly turns its back on our founding document.  Our Constitution, we are told, is too parsimonious with individual rights and entitlements  (e.g., education and health care); too hidebound; too old-fashioned and too  --  well, just too darn nasty.  Must be that pesky American exceptionalism.

One very conspicuous omission from the article is any reference to the death penalty.  This is odd, because international law is a distressingly familiar referent in the Court's decisions limiting capital punishment.  On the other hand, Mr. Liptak might be onto something the Court seems (or perhaps wants) to miss:  That while European law disfavors the death penalty, the majority of the world's people, and its four largest nations (none of them European) all have, and use, capital punishment.

Sopheng Cheang reports for AP:

A U.N.-backed tribunal's Supreme Court lengthened the sentence for the Khmer Rouge's chief jailer to life imprisonment on Friday because of his "shocking and heinous" crimes against the Cambodian people.

The surprise ruling increased a lower court's 19-year sentence for Kaing Guek Eav, known as Duch. Prosecutors had appealed the sentence as too lenient, and outraged survivors had feared the man who oversaw the torture and killing of thousands could one day walk free.

The latter possibility was actually quite remote, given that "Duch" is 69 years old and highly unlikely to survive 19 years in prison.  Even so, I suppose the sentence increase is useful as a symbol.

The sentence remains inadequate, though.  Due to the U.N.'s involvement, the tribunal is incapable of imposing the death penalty, the only punishment that comes close to sufficient for this man's unspeakable crimes.

The world's worst criminals can be adequately punished, as Saddam Hussein was, only when the Europeans, the U.N., and the International Criminal Court are kept out of the decision.  That is regrettable, but that is the way it is.

Aleisha Orr of the Sydney Morning Herald reports:

Lawyers have spoken against the West Australian government's plan to adopt the toughest organised crime laws in the country, which could see bikies banned from associating.

Attorney General Christian Porter hopes to shatter the core of outlaw bikie gangs with the new law, which would make WA's organised crime laws the toughest in the country.

Karla Adam reports in the WaPo:

WikiLeaks founder Julian Assange lost his battle against extradition Wednesday when Britain's High Court ruled that he should be sent to Sweden to face questioning over allegations of sexual misconduct.

The judgment was handed down by High Court judges John Thomas and Duncan Ouseley with Assange in attendance, wearing a dark suit and a Remembrance Day poppy.

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Lawyers for the 40-year-old Australian are expected to seek permission to appeal the decision to the Supreme Court, the highest court in the land. The legal team must lodge an application within the next two weeks, and make a case that a "point of law of general importance" is at stake.

How nice.  The man who facilitated the murder of people cooperating with us in the war against Islamofascism wears a Rememberance Day poppy.  He appears to be rather selective in which antifascist fighters he chooses to remember.

There is also this hopeful note:  "Last month, Assange said WikiLeaks faced an 'existential' crisis and could close as early as January if it was unable to boost its financial reserves."

Paul Owen reports in the Guardian (London):

The Scottish government today lost an appeal to the UK supreme court in a case over human rights that could undermine the convictions of criminals questioned without a lawyer.

A ruling found such questioning was aimed at making it more likely that suspects in Scotland might "incriminate" themselves while being quizzed by police.

The defeat for Scottish ministers - which had been feared for months - has prompted concerns that it could lead to widespread appeals and some criminals walking free from jail.

The Scottish justice minister, Kenny MacAskill, said that in response, with Holyrood's support, he would be making "swift legislative changes to protect the victims of crime and safeguard communities".

Today's supreme court judgment states: "The ECHR [European Convention on Human Rights] requires that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed."

On September 1, Bill and I had a little discussion in the comments to this post about extradition of Moammar Gadhafi.  I thought the issue would be moot "if he is already room temperature when the Libyans finish with him...."  Well, I was way off on the temperature.

Kirk Makin has this story on "unexpected turbulence" at a confirmation hearing for a Supreme Court nominee.

No, not our Supreme Court.  Makin is the justice reporter for the Globe and Mail of Canada.

MPs addressed the lack of transparency in the appointment process, the high cost of litigation, and the toughly worded accusations that Judge Moldaver has made in the past about inadequate lawyers cheapening the Charter of Rights with runaway trials and hopeless legal motions.

Judge Moldaver insisted that he is no "Charter-basher." He said that he supports restrained lawyers who help their clients resolve their cases in the speediest and least-damaging way.

Every needless Charter motion ties up courtrooms and frequently bleeds away precious legal aid funds, he said.

Sounds like a good nominee to me.  The other charge against Moldaver is that he doesn't speak French.

Dominique "Teflon" Strauss-Kahn has escaped another prosecution.  Pierre-Antoine Souchard and Angela Charlton have this story for AP.

This incident in question 8 years ago, as described by Tristane Banon, was attempted rape.  The statute of limitations is 10 years.  "The Paris prosecutor's office said -- without offering details -- that Strauss-Kahn admitted during questioning to actions that qualify for the lesser charge of sexual assault." But that charge has a 3 year statute, which has run.

So they can't charge him with any more than he admitted to, no matter what the victim says?  Apparently they are not going to.

The consolation, I suppose, is that admitting to sexual assault means his political career is over, even in France.

Update:  Now DSK's lawyers deny even the lesser sexual assault.  AP story here.

From north of the border comes a reminder that freedom of speech is broader in the United States than nearly anywhere else, even our English common-law brethren.  Kirk Makin reports in the Globe and Mail:

In a highly charged case, the Supreme Court [of Canada] interjected repeatedly as it grappled with how to protect minorities from expressions of hate without damaging free speech - a decision that could have far-reaching implications for hate laws across the country.

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The case revolves around a 43-year-old, anti-gay proselytizer, William Whatcott, who distributed thousands of flyers in Saskatoon harshly criticizing gays and including information about homosexuality in school curricula.

South of the border, this would be an easy case.  Whatcott's intolerant flyers are not threats.  They are further from that line than Barry Black's cross-burning at a rally, which was held to be protected speech in Virginia v. Black.  [Burning a cross as a specifically targeted threat -- on the neighbor's lawn -- is not protected, the Court held in the companion case.]

In March of last year, three yankee doodles went to London to defend America's death penalty from charges of "perverting the cause of justice."  They were Paul Cassell, Robert Blecker, and some other guy.

The Guardian posted a truncated video of the event on its web site.  After surmounting various human and technical obstacles, we are finally able to bring you the full video here.

Lally Weymouth reports in the WaPo:

Iranian President Mahmoud Ahmadinejad says he intends to release two Americans who have been jailed on charges of espionage for two years and grant them a "unilateral pardon."

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The Americans, Shane Bauer and Josh Fattal, both 29, were arrested along with another American while they were hiking along the Iran-Iraq border two years ago. In August, they were sentenced to eight years in prison.

That is good news, of course, but personally I find it difficult to muster much sympathy for people who go hiking on the border of a country run by fanatics or go yachting in pirate-infested waters.  There are lots and lots of other places in the world to have your recreation, folks.

Here's a bit of good news on the international front.  Nicholas Cecil reports in the London Evening Standard:

Britain opposes the death penalty for Colonel Gaddafi, but his fate should be a matter for the Libyan people, Cabinet minister Andrew Mitchell said today.

As the net closes on the dictator, the International Criminal Court is seeking to have him dragged to The Hague to face charges of crimes against humanity.

But rebel leaders want to put the 69-year-old tyrant on trial in Libya first - where he could face execution if found guilty of atrocities in which thousands of his citizens were killed.

In an interview with the Evening Standard, Mr Mitchell, the International Development Secretary, laid out Britain's position on whether Colonel Gaddafi should be executed.

"People will have different views on the issue of the death penalty but it's a matter for the Libyan people and their new government, the National Transitional Council," he said.

Right.

Shelby Steele has this article in the WSJ on American exceptionalism and President Obama.

Mr. Obama came of age in a bubble of post-'60s liberalism that conditioned him to be an adversary of American exceptionalism. In this liberalism America's exceptional status in the world follows from a bargain with the devil--an indulgence in militarism, racism, sexism, corporate greed, and environmental disregard as the means to a broad economic, military, and even cultural supremacy in the world. And therefore America's greatness is as much the fruit of evil as of a devotion to freedom.

Steele's piece does not address criminal law, but the exceptionalism divide comes up all the time in criminal law debates.  The defense side says that Europe does things the way they want them done, and they say this with all the confidence of a bridge player who has just led the ace of trumps for the rubber trick.  The rest of us shrug and say, "So what?"  We are independent of Europe, an achievement we celebrate every Fourth of July.  The fact that Europe disagrees with us does not mean we are wrong and they are right.  Indeed, the opposite is more likely true.

You might remember the fellow who masterminded the bombing of Pan Am Flight 103 over Lockerbie, Scotland, one Abdel Bassett Al al-Megrahi.  The bombing resulted in the deaths of 270 people, 189 of them Americans. 

Mr. al-Megrahi was the purported head of Libyan intelligence under Colonel Qaddafi.  He was eventually convicted in Scotland.  Of course he was not given a death sentence, the Scots being, you know, too civilized for that.  Instead, they released him two years ago for "compassionate" reasons, to wit, that he was dying of cancer and would pass this veil of tears in three months, if he made it even that long.

Yes, well, that was then.  Few people were surprised to find out that al-Megrahi was nowhere near death and has been living in style in Libya, up until recently under Qaddafi's protection.

Now that Qaddafi's rule has been ended by forces backed by NATO and the Untied States, you might think those whose victory over the tyrant was made possible would like to see a better brand of justice than the kind worked out between their ex-dictator and a feckless and corrupt Scotish government.

As the New York Times reports, you would need to think again.  But not to worry. The Times also reports, apparently with a straight face, that al-Megrahi is  --  guess what  --  about to give up the ghost!

Less than eight hours [after the rebels refused to turn over al-Megrahi], Nic Robertson of CNN reported having found Mr. Megrahi at the villa, where his family said that it was caring for him without help and that he was dying.

"We just give him oxygen," the report quoted Mr. Megrahi's son, Khaled, as saying. "Nobody gives us any advice. There is no doctor. There is nobody to ask. We don't have any phone line to call anybody."

Well gosh.  I'll be happy to contribute a phone, with a built-in GPS and an autodial number for the Navy SEALS.