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Justice in Zimbabwe?
by Mark Andrews
07 January 2004Stephen Breyer

Justice Breyer's research mistake in Knight v. Florida demonstrates one of the problems with applying foreign law to US cases.

Justice Stephen Breyer made a mistake in his research when, in a 1999 dissenting opinion, he sought to interpret the United States Constitution by calling upon an interpretation of the Zimbabwe Constitution.  The law of Zimbabwe was not what he thought it was.  His error illustrates the hazards that come with reliance on foreign law to resolve domestic issues.

The United States Supreme Court was considering the petition for certiorari in Knight v. Florida.  Two state prison inmates had been on death row for 20 and 25 years.  This extended time had been necessary to exhaust their appeals, in part because their original convictions had been reversed.  They wanted to argue that their lengthy stay on death row, by itself, was cruel and unusual punishment and violated the Eighth Amendment.

The court denied certiorari.  Justice Breyer dissented.

Justice Breyer reviewed many sources of law for his conclusion that the prisoners raised a serious issue.  Among others, he found opinions from India, Jamaica, Canada, and Zimbabwe.

The Zimbabwe decision was Catholic Commission for Justice and Peace in Zimbabwe v. Attorney General.  Although the Zimbabwe Constitution does not prohibit capital punishment, it provides, “No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment.“  The court ruled that four prisoners held on death row for four to five years, in wretched conditions, had indeed suffered degrading punishment.  The Zimbabwe court commuted their sentences to life imprisonment.

Justice Breyer relied on Catholic Commission.  However, he apparently missed the fact that the decision had been overruled almost immediately.  Catholic Commission was issued in May 1993; the Zimbabwe Constitution was amended six months later.  The amendment said that a person “shall not be entitled to a stay, alteration or remission of sentence on the ground that, since the sentence was imposed, there has been a contravention of” the section prohibiting inhumane treatment.  The amendment nullified Catholic Commission.

If Justice Breyer was aware of this development, he does not suggest so in his dissent.  In an interesting contrast, the Zimbabwe Supreme Court faced the same situation when reviewing American law, but recognized how to analyze it.  Catholic Commission cited favorably a decision of the California Supreme Court, People v. Anderson, where the chief justice wrote that extended delays before execution dehumanized a prisoner.  This decision was overruled by amendment to the state constitution.  The Zimbabwe court quoted the California decision.  The court took notice of the later constitutional amendment, but continued to say that the words of the state chief justice remained important.  Justice Breyer could have applied the same sort of analysis to Zimbabwe law, but did not.

Justice Breyer’s error illustrates the risks that accompany reliance on foreign law.  In the United States it is easy to trace the history of a court decision, and to find whether the decision has been followed, modified, or overruled.  For example, Justice Clarence Thomas argued that Justice Breyer’s position had been consistently rejected in state courts.  When Justice Breyer responded, he was able to confidently trace the development of this point of law in the United States and argue that, in fact, the issue had not been conclusively decided.

Other countries might or might not have similar analytical tools.  Uncertainty about research in a foreign legal system creates uncertainty in the current status of the law.  The other legal system might have continued to develop the same issue, but in ways that the American opinion writer might find irrelevant, unpersuasive, or dangerous.  In the case of Knight v. Florida, Justice Breyer’s assumptions were wrong about the extent of international agreement concerning the legal effect of a prisoner’s lengthy incarceration on death row.

The latest version of the Zimbabwe Constitution that I found is dated April 2000.  As of then, the constitution still contained the prohibition on inhumane treatment and the amendment nullifying Catholic Commission.  But perhaps there has been a later amendment that addressed inhumane treatment, which amendment has received further court interpretation.  And so forth.  And therein lies the problem.

Knight v. Florida, 528 U.S. 990 (1999).
Zimbabwe Constitution (2000).
Zimbabwe Constitution (1996).
Catholic Commission for Justice and Peace in Zimbabwe vs. Attorney General
Mark Andrews lives and practices law in Fairbanks, Alaska.

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