February 6, 2009

February 6, 2009 | Commentary on Legal Issues

Question David Ogden

On Jan. 6, then President-elect Barack Obama nominated David Ogden to be the next deputy attorney general of the United States, the second-highest position in the Department of Justice. Mr. Ogden's Senate confirmation hearing is Feb. 5. Reportedly hanging in Mr. Ogden's office when he was nominated was a plaque commemorating his victory in a controversial 2005 death penalty case before the U.S. Supreme Court.

That case, Roper v. Simmons, was contentious not only because it determined the constitutionality of the juvenile death penalty, but also because, in deciding the case, a narrowly divided court relied in part upon the laws and practices of foreign nations and "the opinion of the world community," as advocated by Mr. Ogden.

First, the facts of the case: In 1993 in St. Louis, Mo., 17-year-old Christopher Simmons planned and carried out the coldblooded murder of 46-year-old Shirley Crook. Following a plan he had discussed in great detail with his friends, Simmons and an accomplice broke into Mrs. Crook's home, hogtied and gagged her with electrical wire and duct tape, and threw her off a bridge into the Meramec River, where she drowned.

Simmons subsequently bragged about the murder, explaining to friends that he killed Mrs. Crook "because the bitch seen my face." Simmons was subsequently arrested, tried, convicted and sentenced to death.

Simmons' case was appealed and was ultimately argued before the Supreme Court, where he was represented by a team of attorneys that included David Ogden. Among the arguments made in the brief co-authored by Mr. Ogden and submitted to the Supreme Court was that, in making its decision, the court should look to the laws of foreign nations and international organizations regarding the death penalty.

Mr. Ogden argued that foreign laws enjoy a direct cause-and-effect relationship with the interpretation of the U.S. Constitution: "Almost without exception, the other nations of the world have rejected capital punishment of those under 18, confirming that the juvenile death penalty is contrary to Eighth Amendment standards of decency." In other words, since the "other nations of the world" reject capital punishment for juvenile killers, it follows that the death penalty for juvenile killers in the United States violates the Constitution.

In support of this position, Mr. Ogden cited the U.N. Convention on the Rights of the Child, the terms of which bar the execution of persons who commit crimes while under the age of 18. However, the United States has thus far - under both the Clinton and Bush administrations - declined to become a party to that treaty. And yet Mr. Ogden maintains that since "every [other] country in the world" is a party to it, the United States should follow its terms and outlaw the juvenile death penalty.

Moreover, Mr. Ogden cited to a 2002 report of the Inter-American Commission on Human Rights that held an "international customary norm" bars the juvenile death penalty -- a norm to which the United States is now bound. The United States, however, has never consented to be bound by the recommendations of that commission, which has no jurisdiction over the U.S. government.

In sum, then, Mr. Ogden maintains that the Constitution should be interpreted with deference to: (1) a global "consensus" allegedly reached by other nations of the world regarding the juvenile death penalty; (2) the provisions of a U.N. human rights treaty that the United States is not party to; and (3) a declaration by an international commission that has no authority over the United States.

These three arguments have one thing in common - a desire to achieve by judicial proclamation that which couldn't be attained through the democratic process -- either through Senate ratification of the Convention on the Rights of the Child or through the repeal of Missouri's juvenile death penalty law.

The Senate Judiciary Committee should put several questions to Mr. Ogden: What role will the decisions of foreign courts and the "opinions of mankind" have on your policy recommendations regarding the interpretation of the U.S. Constitution? If the "world community" believes the death penalty should not be applied for the crimes of terrorism, treason or other federal capital offenses, what will you recommend to the attorney general in such cases?

David Ogden is certainly qualified for the position of deputy attorney general. But given the major role he would have in determining U.S. criminal legal policy over the next four years, the arguments he advanced in the Roper v. Simmons case deserve close scrutiny.


Steven Groves oversees the Freedom Project as the Bernard and Barbara Lomas Fellow of the Margaret Thatcher Center for Freedom at The Heritage Foundation (heritage.org).

About the Author

Steven Groves Bernard and Barbara Lomas Senior Research Fellow
The Margaret Thatcher Center for Freedom

Related Issues: Legal Issues

First appeared in the Washington Times