VIII. Just Sentences for Youth: International Human Rights Law
Conviction for even a very serious crime does not extinguish a youth offender's claim to just treatment at the hands of government, nor does it free a government to ignore fundamental rights when determining punishment. Nevertheless, by permitting the imposition of life imprisonment without parole on child offenders, forty-two U.S. states and the federal government threaten children's basic rights. International human rights law flatly prohibits life without parole for those who commit their crimes before the age of eighteen, a prohibition that is recognized and respected by almost every country in the world. State public officials, no less than federal, are required to follow international human rights law when imposing criminal sentences.
International Human Rights Law
The international prohibition against life without parole sentences for children (as well as the death penalty) is one of the crucial human rights protections for youth who have broken the law. Children have many of the same fundamental rights as adults-e.g., the right not to be tortured and the right to a fair trial. They also have additional rights not afforded adults. Even before the drafting of the major human rights treaties in the second half of the twentieth century, states acknowledged special rights of children that reflect their unique vulnerabilities and needs and the concomitant responsibility of governments to protect them. The United States also played an early leadership role in establishing a separate system of criminal justice for youth. The state of Illinois was the first government in the world to decide that children accused of crimes should be tried in a juvenile court that was structured differently from the regular criminal courts.[269]
In November 1959, the United Nations General Assembly adopted the Declaration on the Rights of the Child, which recognized that "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth."[270] The United States was one of the seventy-eight members of the U.N. General Assembly, which voted unanimously to adopt the Declaration. Since that time, the world's governments, including the United States, have further elaborated the rights of children accused of crimes.
The International Covenant on Civil and Political Rights (ICCPR), to which the United States became a party in 1992, specifically acknowledges the need for special treatment of children in the criminal justice system and emphasizes the importance of their rehabilitation.[271] Article 10(3) requires the separation of child offenders from adults and the provision of treatment appropriate to their age and legal status. Article 14(4), which was co-sponsored by the United States,[272] mandates that criminal procedures for children charged with crimes "take account of the age and the desirability of promoting their rehabilitation."[273] The ICCPR requires states to respond to the offenses children commit by focusing on positive measures and education rather than punishment.[274]
There are several ways in which the United States is failing to uphold its obligations under the ICCPR. First, criminal laws allowing children to be tried and sentenced as adults violate the specific requirement contained in Article 14(4) that criminal procedures take account of the age of children.[275] As discussed above in Chapter III, many states allow prosecutors to charge children directly in adult court, without any consideration of the particular needs of the child. Other states require children to undergo a hearing in juvenile court before transfer to adult court, yet these hearings may be little more than a rubber stamp of prosecutorial decisions to seek adult sentences. Moreover, when children are tried in adult courts, they are treated as adults rather than being given age-specific accommodations. Most importantly for the subject of this report, children are given sentences equivalent to those of adult offenders. Thus, for example, if life without parole is a mandatory sentence for first degree murder, it is mandatory whether the offender was fourteen or forty-five at the time of the crime.
Second, the sentence of life without parole for children also contradicts the explicit requirement in Article 14(4) of the ICCPR that imprisonment should promote rehabilitation. The sentence reflects a determination that there is nothing that can be done to render the child a fit member of society. It is a sentence of permanent banishment-not an expression of faith that hard work and time can promote positive change. Indeed, the sentence tells child offenders that U.S. society rejects out of hand any hope they may have to atone for their crimes and improve their lives.
Both the ICCPR and the Convention against Torture and Other, Cruel, Inhuman or Degrading Treatment or Punishment prohibit "cruel, inhuman or degrading treatment or punishment."[276] Excessive punishment becomes cruel, inhuman, or degrading if its severity or length is greatly disproportionate to the crime or to the culpability of the offender. The prohibition on cruel, inhuman or degrading punishments is complemented by the positive requirements of article 10 of the ICCPR, which stipulates: "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."[277] For treatment to be humane, it must be appropriate to age and legal status.[278] The vulnerability and immaturity of juvenile offenders renders them more susceptible to cruel, inhuman, or degrading punishments, which will in turn have a much more profound impact on the body and mind of a developing child than an adult.
Applying the prohibition on "cruel and unusual punishment" in U.S. law, the Nevada Supreme Court concluded that life without parole is a cruel and unusual sentence for a child offender. The Court stated, in part:
We do not question the right of society to some retribution against a child murderer, but given the undeniably lesser culpability of children for their bad actions, their capacity for growth and society's special obligation to children, almost anyone will be prompted to ask whether Naovarath deserves the degree of retribution represented by the hopelessness of a life sentence without possibility of parole, even for the crime of murder. We conclude that as "just deserts," for killing his sexual assailant, life without possibility of parole is excessive punishment for this thirteen-year-old boy.[279]
Imprisonment is the most coercive non-capital punishment lawfully imposed by criminal justice systems. Putting a person behind bars is so common in the United States, however, that public officials and the public at large seem to have lost sight of just how serious a punishment it is.
It is precisely because imprisonment is such an inherently severe sanction that governmental decisions to impose it are subject to human rights constraints. The ICCPR recognizes that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.[280] Human Rights Watch and Amnesty International agree with the proposition advanced over thirty years ago at a U.N.-sponsored conference on human rights that punishments "prescribed by law and applied in fact should be humane and proportionate to the gravity of the offence."[281] We believe that the best reading of three interrelated human rights principles make life without parole sentences for child offenders per se disproportionate: the inherent dignity of the individual, the prohibition on inhuman or degrading punishment, and the right to liberty. All are affirmed in international instruments which the United States has signed or ratified, including the Universal Declaration of Human Rights, the ICCPR and the Convention against Torture.
When the United States ratified the ICCPR, it attached a limiting reservation that stipulates:
That the policy and practice of the United States are generally in compliance with and supportive of the Covenant's provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2 (b) and 3 of article 10 and paragraph 4 of article 14.[282]
The history of this reservation indicates that it was intended to permit-on an exceptional basis-the trial of children as adults and the incarceration of children and adults in the same prison facilities. The United States, as a co-sponsor of Article 14, was keenly aware of the breadth and scope of its language. There is nothing in its reservation to suggest that the United States sought to reserve the right to sentence children as harshly as adults who commit similar crimes.
On the contrary, the reservation's plain language and drafting history show that the United States sought to reserve the ability in "exceptional circumstance" to try children in adult courts and to require some of them to serve their sentences in adult prison. According to the United States Senate Committee on Foreign Relations, the reservation was included because, at times, juveniles were not separated from adults in prison due to their criminal backgrounds or the nature of their offenses.[283] In other words, the reservation is not about the length or severity of sentences, only about the need to sometimes try children as adults and incarcerate them in adult prisons.
The Convention on the Rights of the Child (CRC) explicitly addresses the contradiction between the particular rights and needs of children and life without parole sentences.[284] Underpinning several of the treaty's provisions is the fundamental recognition of the child's potential for rehabilitation. Recognizing the unacceptability of sentences that negate the potential of children to make changes for the better over time, the CRC flatly prohibits sentencing children to life sentences without parole or to the death penalty.[285] Article 37(a) states:
Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.[286]
The CRC also requires that a State's decision to incarcerate a child "shall be used only as a measure of last resort and for the shortest appropriate period of time."[287] A child who has committed a crime is to be treated in a manner that takes into account "the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society."[288] States are to use a variety of measures to address the situation of children in conflict with the law, including "care, guidance and supervision orders; counseling; probation; foster care; education and vocational training programmes and other alternatives to institutional care."[289] The treaty also anticipates the need for regular and accessible procedures in which a child can "challenge the legality of the deprivation of his or her liberty."[290] Punishing a youth offender with the longest prison sentence possible, offering no hope of rejoining society, little motivation for rehabilitation, and scant opportunities for learning, violates each of these provisions.
The CRC has been accepted all but universally: as of 2005, 192 out of a total of 194 countries are parties. Notably, none of the state parties to the treaty has registered a reservation to the CRC's prohibition on life imprisonment without release for children.[291] The United States and Somalia[292] are the only two countries in the world that have not ratified the CRC, although both have signed it.[293] As a signatory to the CRC, the United States may not take actions that would defeat the convention's object and purpose.[294]
The U.S. government has proclaimed its commitment to the CRC's principles.[295] When Ambassador Madeline Albright, as the U.S. Permanent Representative to the U.N., signed the CRC on behalf of the United States in 1995, she declared:
The convention is a comprehensive statement of international concern about the importance of improving the lives of the most vulnerable among us, our children. Its purpose is to increase awareness with the intention of ending the many abuses committed against children around the world. . . . United States participation in the Convention reflects the deep and long-standing commitment of the American people.[296]
The United States has reaffirmed this commitment on subsequent occasions. For example, in 1999 Ambassador Betty King, U.S. Representative on the U.N. Economic and Social Council stated:
Although the United States has not ratified the Convention on the Rights of the Child, our actions to protect and defend children both at home and abroad clearly demonstrate our commitment to the welfare of children. The international community can remain assured that we, as a nation, stand ready to assist in any way we can to enhance and protect the human rights of children wherever they may be.[297]
Case Study: Troy L.
Troy L. was fifteen both in this photo and when he committed his crime.
© 2005 Private.
Troy L. grew up with his family in Arkansas. Troy did not have a juvenile record but had been kicked out of one high school for selling marijuana. He explained to a researcher for this report that he used drugs such as marijuana and "crystal meth." After Troy was suspended from the alternative school he was attending, his mother sent him to live with his father, who was an engineer in a nuclear power plant, so that Troy could attend another high school. Troy said that his father was physically and mentally abusive. He would not provide details about the abuse he had suffered at the hands of his father, explaining to a researcher for this report that he had promised his mother and sister that he would not to do so.
When asked what his new school had been like, Troy, who is now twenty-three years old, said: "I was doing a lot of drugs. I was real rebellious. I mean, like I said, I had problems going on at home and I'd take that to school and bring problems with me. And I didn't do good at school. Ironically, though, I sort of liked it-I liked being around the people and . . . I just didn't, you know teachers didn't like me." [298]
Troy was fifteen when he murdered his father and was sentenced to life without parole. He told a researcher for this report what his life was like at the time: "[M]e and my dad hadn't gotten along real good since they got divorced and well we probably had never gotten along real good. We had a sort of abusive . . . he was kinda abusive, but I was too . . . I mean I see now that I probably should've just left. It just, it seemed like me and him were just at war with each other. I mean, I really felt like he hated me at the time. I don't know how to explain that. It wasn't right, though, I see that now . . . I think now . . . if he was still alive I would like to meet him, you know give him a chance to, I don't know . . . And you know he was abusive, but like I said there've been a lot of parents who've been abusive . . . You can't have every kid that's abused killing their parents-it just ain't gonna work. And I realize that now."
An investigator in the case said that a friend had brought Troy a jacket a few minutes before the murder, "because it had some shotgun shells in it," [299] which the prosecution introduced as evidence of premeditation. However,
according to Troy, he and his father had "fought heatedly" that night. He claimed: "[T]he decision to kill him, as much as it was made, was made while we fought, the feeling I guess being that I had to end this." [300] He said, "[I] had been so angry and emotional at the time of the murder that I had been incapable of realizing the consequences of what I was doing, that I would not have a father anymore." [301]
The Supreme Court of Arkansas examined the case and found that the murder was pre-meditated, because "a sheriff's deputy testified that a person had to make a conscious effort to pump the shotgun to fire it," and Troy's sister testified "that he had talked about killing their father for six months to a year." [302] The Court also found that Troy shot his father three times, with two different kinds of ammunition, meaning he had to actually reload, not just pump the gun. The same court record indicated that Troy confessed to shooting his father because he was "mad at him." [303]
After he was interviewed for this report, Troy wrote to explain that despite the fact that he murdered his father, he has the support of his sister and mother. He wrote, "I have a surprising number of friends and family who have kindly offered that I may stay with them if I am released, despite the state's fearful appraisal of me. . . . In spite of the insane thing that I did, I don't know of a single entity, aside from the state . . . who wish for me to stay here. . . . I want to be able to show my appreciation and make amends to people I've hurt . . . I sap time, joy and money from anyone I come into contact with . . . I would more than anything like to be rid of this curse that, by afflicting me, afflicts everyone I care about." [304]
In sharp contrast to the United States' expressed intention to protect the human rights of children, federal law as well as the laws of forty-two individual states in the U.S. permit the sentence of life without parole for child offenders. Indeed, as of this writing, the U.S. Congress was contemplating a new federal law that would increase the number of crimes for which a youth might receive life without parole.[305] Since 1989, no U.S. state that permits the sentence for child offenders has taken any significant stepsto reduce or eliminate it.
Federal and state governments' policy of imposing life without parole sentences on youth offenders violates U.S. constitutional law, which requires both individual states and the federal government to uphold human rights treaties made under the authority of the United States. The U.S. Constitution states:
[A]ll treaties made, or which shall be made, under the authority of the United States shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Law of any State to the contrary notwithstanding.[306]
Upholding this constitutional principle, the U.S. Supreme Court has stated, "[I]nternational law is part of our law, and must be ascertained and administered by the courts of justice of the appropriate jurisdiction. . ."[307] Treaties of the United States have been held to be binding on states independent of the will and power of state legislatures.[308] Human rights treaties, like other treaty obligations of the U.S. government, are similarly binding on state governments.[309] Apart from treaty obligations, international human rights principles are also "instructive" in determining appropriate punishments.[310] Therefore, not only should state officials adhere to the prohibition against life imprisonment without parole for youth offenders, but the federal government has an obligation to support those states, including through federal funding, that may choose to eliminate the sentence in the future.
Practices of Other Countries
The domestic laws and practice of governments worldwide provide a clear measure of global adherence to the CRC's prohibition of the life without parole sentences for children.[311] Out of 154 other countries for which Human Rights Watch was able to obtain data,[312] only three currently have people serving life without parole for crimes they committed as children, and none of those four have more than a handful of cases. The paucity of countries that sentence children to life without parole is not due to their use of even harsher punishments (such as the death penalty) for child offenders. In fact, between 1990 and 2004, only eight countries (including the United States) have reportedly imposed the juvenile death penalty.[313]
For example, not one of the original fifteen member states of the European Union allows children to be sentenced to life without parole.[314] On the African continent, thirty-one countries prohibit life without parole for children in their penal laws.[315] Six other African countries have decided that the sentence cannot be imposed on child offenders under sixteen.[316] In three additional African countries, the sentence is technically possible, but it is not used in practice.[317]
Kenya and Tanzania are the only two countries in Africa where representatives of inter-governmental or non-governmental organizations reported that the sentence is still being imposed on offenders below the age of eighteen. But even these countries are working on improving their practices. Kenya is currently undergoing an extensive constitutional and law reform process, which may eliminate the sentence. In Tanzania, apparently the only recent life without parole sentence for a youth is that of a seventeen-year-old convicted in a highly controversial rape case. His conviction is currently under appeal.[318]
Throughout the world, about fourteen countries have laws allowing for a life sentence to be imposed on youth offenders, although it is not clear in all of these cases whether life means life, or whether parole remains a possibility.[319] O Outside of the United States, we have found only about a dozen child offenders serving such a sentence in three countries. South Africa reportedly has four child offenders serving life without parole sentences,[320] Tanzania has one,[321] and to our knowledge, there are between four and seven youth offenders sentenced to life in prison in Israel as of 2005.[322] In addition, youth can technically receive the sentence under the penal laws of Antigua and Barbuda, Australia, Brunei, Dominica, Kenya, Saint Vincent and the Grenadines, Solomon Islands, and Sri Lanka, but it seems that the sentence is rarely if ever used. Finally, in Burkina Faso and Cuba, the sentence seems to be technically possible for individuals above the age of sixteen, but we know of no instances in which it has been used.[323] Curiously, thirteen of the countries that allow for the sentence can trace their historical ties to the United Kingdom and the English common law tradition of sentencing "for the duration of Her Majesty's pleasure." Yet the source of this tradition, the United Kingdom, abolished the possibility of a life without parole sentence for youth offenders after a seminal decision by the European Court of Human Rights in 1996.[324]
Global consensus against the sentence has become increasingly cohesive and firm. In April 2004, the Commission on Human Rights adopted a resolution "urg[ing] States to ensure that under their legislation and practice neither capital punishment nor life imprisonment without the possibility of release shall be imposed for offences committed by persons below eighteen years of age."[325]
The international rejection of life without parole (as well as the death penalty) for child offenders is so overwhelming that it may have attained the status of customary international law. Once a rule of customary international law is established, that rule becomes binding even on states that have not formally agreed to it.[326] Under domestic U.S. law, customary international law is binding on the government of the United States.[327]
Establishing a rule of customary international law requires two elements: first, widespread and consistent governmental practice and second, a sense of legal obligation, or opinio juris accompanying the practice.[328] The International Court of Justice has said that "a very widespread and representative participation in [a] convention might suffice of itself" to evidence the attainment of customary international law, provided it included participation from "States whose interests were specially affected."[329]As the previous discussion of widespread adherence to the CRC and consistent worldwide refusal to impose the sentence on children indicates, both of these elements exist.[330] The United States, which historically was a leader in promoting juvenile justice reforms, now finds itself far behind the practice of the rest of the world.
The global rarity of life without parole for youth offenders may also be due to the ineffectiveness of the sentence. Harsh juvenile sentences such as life without parole do not appear to offer a deterrent effect to lower the prevalence of homicide offenses among youth. The prevalence of juvenile homicide in a particular country is due to a myriad of factors that are difficult to identify and even more challenging to compare across international boundaries. It is nevertheless the case that the harsh penalties for youth offenders in the U.S., such as life without parole sentences, have not given the United States significantly lower rates of youth crime. During 1999, 10 percent of all homicide offenders in the United States were below the age of eighteen, which means the United States had the third highest percentage in a comparison with twenty-eight European countries in 1999.[331] Ten years earlier, in 1989, children made up 11 percent of all homicide offenders in the United States. If harsh sentencing were the answer to deterring serious and violent juvenile crime, the United States should be among the countries with the lowest percentages of youth murderers, rather than having seen its total number of youth homicide offenders drop by just 1 percent.
Case
Study: Kevin C.
Kevin C. was age sixteen in this photo and age seventeen when he committed his crime.
© 2005 Private.
Kevin C. grew up in a financially secure family in Colorado, and was seventeen at the time of his crime. He told a researcher for this report: "There were no problems at home. I lived with my dad, my parents were divorced . . . even though my parents are divorced, they get along." [332] Kevin had been arrested once before and charged as a juvenile for vandalism to a car. [333] According to his mother, he completed his community service satisfactorily. Kevin's father told a researcher for this report what his son was like at the time of the crime, "I have the feeling he was going into the drugs and all that, he was a kid. But I always checked his car, there were never any weapons in there or drug stuff. . . . To kill somebody, to hurt somebody, especially a girl? No way." [334]
His mother said: "He had dyed his hair blonde and just re-painted his bathroom. He was working hard at his job and he loved snowboarding and skiing. He kept a collection of beer cans from around the world. His father and I used to bring him back empty cans from Israel and other places we traveled. He kept the cans lined up on his bedroom window, like any teenage boy would. . . . They used that against him in court!" [335]
According to police investigations, Kevin was involved in the shooting of two Native American girls, one of whom subsequently died. [336] Kevin told a researcher for this report that he and two friends were driving around town one night. They were interested in buying some drugs and needed some money. He told a researcher, "I just went along for the ride." They eventually stopped two Native American girls who had just been given $2,000 "coming of age" money by their tribe. [337] Kevin explained that a "situation" broke out. Some shots were fired. He said, "I never touched a weapon. I never handled a weapon . . . one girl ended up being murdered and the other was injured severely." After his arrest, Kevin's hands tested negative for gunshot residue. [338] Kevin was convicted of felony murder and sentenced to life without parole. Kevin's co-defendant was convicted of first-degree murder and was also sentenced to life without parole. [339]
[269] Margaret K. Rosenheim, Franklin E. Zimring, David S. Tanenhaus, and Bernardine Dohrn, Eds., A Century of Juvenile Justice, (Chicago: University of Chicago, 2001).
[270] General Assembly resolution 1386 (XIV), November 20, 1959. Similarly, the American Convention on Human Rights, Series no. 36, p. 1, Organization of American States, Official Record, OEA/Ser.L/V/II.23, signed by the OAS on November 22, 1969, entered into force July 18, 1978, states in Article 19 "Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state."
[271] The Human Rights Committee has interpreted the ICCPR's provisions on child offenders to apply to all persons under the age of eighteen. Human Rights Committee, General Comment no. 1, Forty-fourth Session (1992), para. 13, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.7, p. 155.
[272] The United States co-sponsored this provision together with Great Britain and India, and it was adopted unanimously. See Marc Bossuyt, Guide to the "Travaux Préparatoires"of the International Covenant on Civil and Political Rights (1987), p. 307.
[273] The ICCPR contains three additional provisions related to juvenile justice. Article 6(5) prohibits imposing the death penalty on persons who committed crimes while under the age of eighteen. Article 10(2), subparagraph b, mandates the separation of accused children from adults and the swift adjudication of their cases. Article 14(1) provides an exception for cases involving children to the general requirement that judgments be made public.
[274] Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, (1993), p. 266.
[275] Ibid., p. 265.
[276] ICCPR, art. 7, Convention against Torture, art. 16.
[277] In article 37 of the CRC, the prohibition of both capital punishment and life imprisonment without possibility of release are included in the sub-section banning cruel, inhuman or degrading punishments.
[278] See Human Rights Committee, General Comment 9, Article 10 (Sixteenth session, 1982).
[279]Naovarath v. State, 105 Nev. 525, 530-531 (Nev. S. Ct. 1989).
[280] ICCPR, art. 10(1).
[281] "Report on the 1960 Seminar on the Role of Substantive Criminal Law in the Protection of Human Rights and the Purpose and Legitimate Limits of Penal Sanctions," organized by the United Nations in Tokyo, Japan, 1960.
[282] United Nations Treaty Collection, International Covenant on Civil and Political Rights, United States of America: Reservations, para. 5 (emphasis added).
[283] United States, Senate Committee on Foreign Relations Report on the International Covenant on Civil and Political Rights, 31 I.L.M. 645, 651 (1992) ("Although current domestic practice is generally in compliance with these provisions, there are instances in which juveniles are not separated from adults, for example because of the juvenile's criminal history or the nature of the offense. In addition, the military justice system in the United States does not guarantee special treatment for those under 18.").
[284] CRC, art. 37(a), G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. no. 49, at 167, U.N. Doc. A/44/736 (1989) (entered into force Sept. 2, 1990), reprinted in 28 I.L.M. 1448, 1470 (emphasis added).
[285] The juvenile death penalty is now prohibited in the United States. Roper v. Simmons, 125 S.Ct. 1183, 1199 (2005) (finding the juvenile death penalty unconstitutional and citing to international standards).
[286] CRC, art. 37(a) (emphasis added).
[287] CRC, art. 37(b).
[288] CRC, art. 40.1.
[289] CRC, art. 40.4.
[290] CRC, art. 37(d).
[291] United Nations Treaty Collection Database, available online at: http://untreaty.un.org/, accessed on July 16, 2004. Malaysia registered a reservation to art. 37(a) as follows: "The Government of Malaysia . . . declares that the said provisions shall be applicable only if they are in conformity with the Constitution, national laws and national policies of the Government of Malaysia." Ibid. The government of Myanmar made a broad objection to Article 37, which it later withdrew after other states protested. Ibid. The government of Singapore has maintained a declaration regarding Article 37. However, the declaration does not address the prohibition on life imprisonment without parole. Singapore's declaration reads: "The Republic of Singapore considers that articles 19 and 37 of the Convention do not prohibit-(a) the application of any prevailing measures prescribed by law for maintaining law and order in the Republic of Singapore; (b) measures and restrictions which are prescribed by law and which are necessary in the interests of national security, public safety, public order, the protection of public health or the protection of the rights and freedom of others; or (c) the judicious application of corporal punishment in the best interest of the child." A number of states have interpreted the declaration as a reservation and objected to it as contrary to the object and purpose of the Convention. See UN Treaty Collection Database (Germany: Sept. 4, 1996: Belgium: Sept. 26, 1996; Italy: Oct. 4, 1996; The Netherlands: Nov. 6, 1996; Norway: Nov. 29, 1996; Finland: Nov. 25, 1996; Portugal: Dec. 3, 1996; Sweden: Aug. 1997). In the Roper decision, the United States Supreme Court took special note of the fact that no state party to the CRC made a reservation to the prohibition against the juvenile death penalty contained in Article 37. Roper v. Simmons, 125 S.Ct. 1183, 1199 (2005).
[292] According to the United Nations' agency for children, UNICEF, Somalia is currently unable to ratify the CRC because it lacks a recognized government. See UNICEF, "Frequently Asked Questions," available online at: http://www.unicef.org/crc/faq.htm#009, accessed on July 19, 2004.
[293] The United States signed the CRC on February 16, 1995, and Somalia signed on May 2, 2002.
[294] See Vienna Convention on the Law of Treaties, art. 18, concluded May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980). Although the United States has signed but not ratified the Vienna Convention on the Law of Treaties, it regards this convention as "the authoritative guide to current treaty law and practice." S. Exec. Doc. L., 92d Cong., 1st sess. (1971), p. 1; Theodor Meron, "The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination," American Journal of International Law, vol. 79 (1985), p.283. The U.S. government has also accepted that it is bound by customary international law not to defeat a treaty's object and purpose. See e.g., "Albright Says U.S. Bound by Nuke Pact; Sends Letters to Nations Despite Senate Vote," Washington Times, (November 2, 1999), p. A1 (describing the Clinton administration's acceptance of obligations under the Comprehensive Test Ban Treaty despite the Senate's failure to ratify).
[295] U.S. Supreme Court Justice Antonin Scalia, in his dissent in the Roper case, implied that adherence to the CRC's prohibition on sentencing youth to life without parole would be necessary if the United States is "truly going to get in line with the international community." See Roper v. Simmons, 125 S.Ct. 1183, 1226 (2005) (Scalia, J. dissenting).
[296] "Remarks by Ambassador Madeline K. Albright, United States Permanent Representative to the United Nations on the Occasion of the Signing of the U.N. Convention on the Rights of the Child," U.S. Press Release, (February 16, 1995).
[297] "Statement by Ambassador Betty King, United States Representative on the Economic and Social Council, to the Plenary of the 54th Session of the General Assembly on the Tenth Anniversary of the Convention on the Rights of the Child," November 11, 1999, available online at: http://www.un.int/usa/99_112.htm, accessed on July 22, 2005.
[298] Human Rights Watch interview with Troy L., Cummins Unit, Grady, Arkansas, June 23, 2004 (pseudonym) (unless otherwise noted, all statements attributed to Troy L. in this case study were obtained during this interview).
[299]McClure v. Arkansas, 942 S.W.2d 243, (Arkansas, April 7, 1997).
[300] Letter to Human Rights Watch from Troy L., undated, received July 2004 (pseudonym) (on file with Human Rights Watch).
[301] Ibid.
[302] Elizabeth Mcfarland, "High Court Affirms; Murder Thought-Out," Arkansas Democrat-Gazette, February 27, 1998.
[303] Ibid.
[304] Letter to Human Rights Watch from Troy L., undated, received July 2004 (pseudonym) (on file with Human Rights Watch).
[305] U.S. House Bill, H.R. 1279, which increased the number of crimes subject to mandatory minimum sentences, including life without parole, and criminalized several non-violent drug offenses, was passed on May 11, 2005. As of this writing, the U.S. Senate was considering its own, less punitive version of this bill, S. 155.
[306] U.S. Constitution, Article VI, clause 2.
[307]The Paquete-Habana, 175 U.S. 677, 700 (1900). See also Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (statutes "can never be construed to violate . . . rights . . . further than is warranted by the law of nations"); Harold Honju Koh, "Is International Law Really State Law?," Harvard Law Review, vol. 111(1998), p. 1824 (noting that customary international law is federal common law and preempts inconsistent state practices).
[308] See Asakura v. City of Seattle, 265 U.S. 332 (1924) (holding that a treaty made under the authority of the United States stands on the same footing of supremacy as do the provisions of the Constitution and laws of the United States and "operate[s] of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts"). See also Maiorano v. Baltimore & Ohio R. R. Co., 213 U. S. 268, 272, (1888); Baldwin v. Franks, 120 U.S. 678, (1887); Head Money Cases, 112 U. S. 580, 598 (1884); Chew Heong v. United States, 112 U. S. 536, 540 (1884); Foster v. Neilson, 2 Pet. 253, 314 (1829).
[309] Jordan J. Paust, "Self-Executing Treaties," American Journal of International Law, vol. 82 (1988), p. 760 (explaining that when John Jay was Secretary of Foreign Affairs of the Confederation in 1787, he reported to Congress that a treaty "made, ratified and published by Congress, ... immediately [became] binding on the whole nation, and superadded to the laws of the land"). See also Asakura v. City of Seattle 265 U.S. 332, 341 (1924) ("The rule of equality established by [the treaty] cannot be rendered nugatory in any part of the United States by municipal ordinances or state laws. It stands on the same footing of supremacy as do the provisions of the Constitution and laws of the United States. It operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts."). Article 50 of the ICCPR provides that the provisions of the Covenant "shall exten[d] to all parts of federal States without any limitations or exceptions." The Human Rights Committee, in its General Comment 31 on the Nature of the General Legal Obligation on States Parties to the Covenant, states:
The obligations of the Covenant in general and article 2 in particular are binding on every State Party as a whole. All branches of government (executive, legislative and judicial), and other public or governmental authorities, at whatever level-national, regional or local-are in a position to engage the responsibility of the State Party. The executive branch that usually represents the State Party internationally, including before the Committee, may not point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility for the action and consequent incompatibility. This understanding flows directly from the principle contained in article 27 of the Vienna Convention on the Law of Treaties, according to which a State Party "may not invoke the provisions of its internal law as justification for its failure to perform a treaty." . . . In this respect, the Committee reminds States Parties with a federal structure of the terms of article 50, according to which the Covenant's provisions "shall extend to all parts of federal states without any limitations or exceptions." Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004), para. 4 (emphasis added).
[310] See Roper v. Simmons, 125 S.Ct. 1183, 1215 (2005) ("Yet at least from the time of the Court's decision in Trop [1958], the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment's prohibition of "cruel and unusual punishments."); Atkins v. Virginia, 536 U.S. 304, 317 (2002); Trop v. Dulles, 356 U.S. 86, 102-103 (1958) (plurality opinion) (stating "the civilized nations of the world are in virtual unanimity" with the court's assessment that the punishment of statelessness is contrary to evolving standards of decency).
[311] For example, Egypt's 1996 Children's Code, which was intended to bring national legislation in line with the CRC, includes a prohibition on life imprisonment for juveniles. See Government of Egypt, Children's Code, Art. 111, 112 (1996). Egypt ratified the CRC on Feb. 5, 1990. Mali's 2002 Child Protection Ordinance does not allow sentences above eighteen years to be imposed on persons who commit crimes while under the age of eighteen. See Ordonnance N°02-062/P-RM Du 05 Juin 2002 portant code de protection del'enfant,available online at: http://www.justicemali.org/doc107.htm, accessed on July 22, 2005. Mali ratified the CRC on Sep. 20, 1990. Cape Verde's new Constitution of 1992 prohibits life imprisonment or imprisonment of an indefinite duration for anyone. See Constitution of Cape Verde, Art. 31 (1992) ("There shall not be, in any circumstances, a penalty depriving of liberty, or security measure of a permanent character or with an unlimited or indefinite duration."), available online at: http://confinder.richmond.edu/CapeVerde.htm, accessed on July 22, 2005. The Constitution was revised again in 1999, but this language was maintained. Constitution of Cape Verde, Art. 32 (1992), available online at: http://www.parlamento.cv/ constituicao/const00.htm, accessed on July 22, 2005. Cape Verde acceded to the CRC on June 4, 1992. Sao Tome and Principe's 1990 Constitution prohibits life imprisonment of minors. See U.N. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention: Sao Tome and Principe, CRC/C/8/Add.43, para. 63, 369 (March 4, 2003). Sao Tome and Principe acceded to the CRC on May 14, 1991. Eritrea's Transitional Penal Code prohibits life imprisonment of juveniles. See U.N. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention: Eritrea, CRC/C/41/Add.12, para. 74 (December 23, 2002). Eritrea ratified the CRC on Aug. 3, 1994. In 2003, Morocco increased the age of majority from sixteen to eighteen in the Penal Code and Criminal Procedure Code, which ensured that the pre-existing prohibition on life sentences for minors covered all persons who committed crimes while under the age of eighteen. See U.N. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention: Morocco, CRC/C/93/Add.3, para. 234-35 (February 12, 2003) (indicating that such revisions were currently pending); U.N. Committee on the Rights of the Child, Summary Record of the 882nd Meeting, CRC/C/SR.882, para. 58 (July 16, 2003); U.N. Committee on the Rights of the Child, Concluding Observations: Morocco, CRC/C/15/Add.211, para 3, 72 (July 10, 2003) (confirming that the revisions referred in the text had been passed into law). Morocco ratified the CRC on June 21, 1993. Tunisia adopted act no. 95-93 of November 9, 1995, which amended the Criminal Code to automatically reduce life sentences to ten years for persons under the age of eighteen. See U.N. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under Article 44 of the Convention: Tunisia, CRC/C/83/Add.1, para. 25 (Oct. 30, 2001). This became Article 43 of the Criminal Code. Ibid.
[312] Human Rights Watch researched this question using the following methodology: We examined the reports of 166 countries to the U.N. Committee on the Rights of the Child under Article 37 of that treaty (Article 37 prohibits sentencing child offenders to life without parole). Unfortunately, 53 countries failed to report to the Committee on their laws or practices under Article 37. Therefore, we used a variety of additional methods to obtain a definitive answer. These included inquiries with: the UNICEF Child Protection Officer in the country concerned, criminal defense attorneys, judges, criminal justice non-governmental organizations, and the press, as well as a review of articles covering recent sentencing decisions.
[313] These countries and the number of youth offenders executed are: Iran (8), Saudi Arabia (1), Nigeria (1), the Democratic Republic of Congo ("DRC") (1), Yemen (1), Pakistan (3), China (1), and the United States (19). See Amnesty International, Children and the Death Penalty, Executions Worldwide Since 1990, AI Index: ACT 50/007/2002, 25 Sept. 2002, p.14; updated to June 6, 2004 by International Justice Project, US JuvenileExecutions Since 1976, March 2004, available online at: http://www.internationaljusticeproject.org/juvStats.cfm, accessed on August 1, 2005.
[314] The original fifteen members of the EU are: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, United Kingdom.
[315] These countries are Algeria, Angola, Benin, Botswana, Burundi, Cameroon, Cape Verde, Chad, Cote d'Ivoire, Democratic Republic of the Congo, Djibouti, Egypt, Eritrea, Guinea, Guinea-Bissau, Lesotho, Liberia, Libya, Madagascar, Mali, Mauritius, Morocco, Mozambique, Namibia, Niger, Rwanda, Sao Tome and Principe, Togo, Tunisia, Uganda, and Zimbabwe.
[316] These countries are Comoros, Congo (Brazzaville), Ethiopia, Ghana, Madagascar, and Senegal. In all of these countries, life imprisonment without possibility of release is prohibited for persons under the age of sixteen. In each of these countries, we were unable to determine whether the sentence exists for individuals above the age of sixteen.
[317] These countries are: Malawi, Nigeria, and Sierra Leone.
[318] E-mail correspondence to Human Rights Watch from Erasmina Masawe, Volunteer Attorney, Legal and Human Rights Centre, Dar es Salaam, Tanzania, July 21, 2004 and July 30, 2004 (on file with Human Rights Watch).
[319] For the remaining nine countries out of the 154 researched, we were unable to obtain the necessary sources to determine whether or not the sentence exists in law, and if it does, whether or not it is imposed.
[320]South Africa State Party report to the CRC, CRC/C/51/Add.2, May, 22, 1999 at 514 (reporting four child offenders serving the sentence). In April 2005, the governmental delegation from South Africa to the Commission on Human Rights confirmed in informal meetings with members of the organization Human Rights Advocates that these four youth offenders were in fact serving life without parole sentences. See e-mail correspondence to Human Rights Watch from Human Rights Advocates, Berkeley, California, September 7, 2005 (one file with Human Rights Watch). However, as part of the post-apartheid overhaul of the judicial system, juvenile justice procedures are under review, and a Child Justice Bill is currently under discussion in parliament. In line with the CRC, the Bill would outlaw life imprisonment for child offenders (see Article 72, available online at: http://www.pmg.org.za/bills/020808childjusticebill.htm, accessed on September 15, 2005.). Moreover, in November 2004, in Brandt v S (case 513/03, Supreme Court of Appeal) the South African Supreme Court held that minimum sentencing legislation should not apply to juveniles convicted of serious crimes.
[321] See e-mail correspondence to Human Rights Watch from Erasmina Masawe, Volunteer Attorney, Legal and Human Rights Centre, Dar es Salaam, Tanzania (July 21, 2004 and July 30, 2004).
[322] See Israel State Party report to the CRC, CRC/C/8/Add.44, 27 February 2002, para. 1372 (stating that life imprisonment "has been imposed on three 17-year-olds who stabbed a bus passenger to death as part of the 'initiation rite' of a terrorist organization; and on a youth age 17 and 10 months who strangled his employer to death after she commented on his work and delayed payment of his salary for two days"). Since February 2002, Human Rights Watch has learned of three additional youth offenders who were all below age eighteen at the time of their offenses and have been sentenced to life: Shadi Ghawadreh, Youssef Qandil, and Anas Mussallmeh. See email to Human Rights Watch from Research Coordinator, Palestinian Section, Defense for Children International, September 10, 2005 (on file with Human Rights Watch) (E-mail from Research Coordinator, Defense for Children International). According to Israeli law, normally individuals sentenced to life would be eligible for a sentence commutation to thirty years upon a recommendation from the Ministry of Justice. See Huk Shihror Al Tnai Mimasar, Hatashsa 2001, Article 29. However, youth offenders sentenced by military courts under the Israeli 1945 Emergency Regulations to life sentences for political and security crimes do not enjoy this privilege. See Huk Shihror Al Tnai Mimasar, Hatashsa 2001, Article 31. We have been unable to ascertain how many of the seven youth offenders sentenced to life in Israel are political or security prisoners-that is, those who would not be eligible for the thirty year sentence commutation. E-mail from Research Coordinator, Defense for Children International. See also Israel State Party report to the CRC, CRC/C/8/Add.44 para. 1372 (noting that no absolute prohibition on life sentences for youth exists in Israel, and the Supreme Court has the discretion to review each case on the merits and may impose a life sentence on a youth offender, which, in the views of one Israeli Supreme Court Justice, raises questions on the prohibition on life without parole sentences contained in the Convention on the Rights of the Child).
[323] See Burkina Faso State Party report to the CRC, CRC/C/65/Add.18, February 13, 2002 at 406, 445. Under Cuban law, an individual above age sixteen may be sentenced to "privacion perpetua" (a life without parole sentence); however, under the Cuban Codigo Penal, children age seventeen may have their sentences reduced by one-half. Because this provision is discretionary, it appears to be technically possible for a youth above sixteen to receive the sentence. See Codigo Penal de Cuba, Art. 17.1 ("En el caso de personas de más de 16 años de edad y menos de 18, los límites mínimos y máximos de las sanciones pueden ser reducidos hasta la mitad, y con respecto a los de 18 a 20, hasta en un tercio.") ("In the case of persons older than sixteen years of age and younger than eighteen, the minimum and maximum punishments may be reduced by half, and with respect to those between eighteen and twenty, by one third.") (translated by Human Rights Watch).
[324] See Hussain and Prem Singh v. United Kingdom, 22 EHRR 1 (1996) (holding that "for the duration of Her Majesty's Pleasure" did not authorize wholly punitive life-long detention, because it invoked the protection of Articles 3 and 5(4) of the European Convention of Human Rights, which required changes in the character, personality and mental state of the young offender to be considered after a term of years during mandatory and repeated parole reviews.).
[325] Commission on Human Rights, Human Rights in the Administration of Justice, in particular juvenile justice, E.CN.4/2004/L.66 April 15, 2004, para. 11.
[326] In the face of this global concurrence, the U.S. government cannot claim that it is free of its customary law obligations by virtue of being a persistent objector. A persistent objector is a state that has consistently and expressly protested the rule during the rule's inception and development and, consequently, can claim the right not to be bound by the rule. John Currie, Public International Law, (2001), p.176; Hugh Thirlway, "The Sources of International Law", in International Law, Malcolm Evans, ed. (2003), p.117. One commentator notes: "The state must, from the rule's inception, consistently maintain its objection without exception. Even a single lapse will be fatal to the state's claim of persistent objector status." John Currie, Public International Law (2001) p.164. Once a rule has become established as customary international law, a persistent objector might not be able to maintain the ability to opt out. Mark Villiger, Customary International Law and Treaties (1997), p. 35.
[327]The Paquete Habana, 175 U.S. 677, 699 (1900).
[328] The International Court of Justice (ICJ) has described the opinio juris requirement as follows: "Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it." International Court of Justice, Judgment, North Sea Continental Shelf, para. 77 (Feb. 20, 1969).
[329] International Court of Justice, Judgment, North Sea Continental Shelf, paras. 73-4 (Feb. 20, 1969) (finding that "although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.").
[330] Others have concluded that the prohibition on juvenile life without parole sentences is a rule of customary international law. See Human Rights Advocates, Submission to the Sixty-First Session of the Commission on Human Rights, The Death Penalty and Life Imprisonment without the Possibility of Release for Youth Offenders who were Under the Age of 18 at the time of the Offense, Spring 2005, available online at: http://www.humanrightsadvocates.org/images/Juvenile%20Sentences.doc, accessed on August 3, 2005. Several international treaty bodies reiterate the prohibition in their general comments and annual resolutions on a regular basis. See, e.g., Commission on Human Rights, Human Rights in the Administration of Justice, in particular juvenile justice, 2004/43; Report on the Twenty-Fifth session of the Committee on the rights of the Child, September / October 2000, CRC/C/100, p. 130; European Union, Memorandum on the Death Penalty, available online at: http://www.eurunion.org/legislat/DeathPenalty/eumemorandum.htm, accessed on August 1, 2005) (stating that "The United Nations Convention on the Rights of the Child prohibits sentencing minors both to death and also to imprisonment for life without the possibility of release. These are juvenile justice standards of paramount relevance and the EU urges the USA to ratify the Convention.").
[331] The three countries out of the twenty-nine with higher or equal percentages of youth among their homicide offenders were England and Wales, with 10 percent; Slovenia with 10.2 percent; and Slovakia with 16.3 percent. Among countries with lower percentages than the United States, Poland ranked sixth highest with 8.6 percent, France ranked seventh highest with 8.4 percent; Germany ranked thirteenth highest with 5.8 percent, Scotland ranked twenty-fifth with 1.5 percent and Cyprus, Ireland, Italy, Switzerland, and Northern Ireland all had zero homicide offenders below the age of eighteen.See Council of Europe, European Sourcebook of Crime and Criminal Justice Statistics, 2003, 2nd ed., Chapter 3, Tables 3.2.1.3, 3.2.1.4, 3.2.2.2, and 3.3.1.2, http://www.minjust.nl:8080/b_organ/wodc/publications/ob212_all.pdf, (retrieved March 23, 2005); and Snyder, H., Finnegan, T., Wan, T., and Kang, W., Easy Access to the FBI's Supplementary Homicide Reports: 1989-2000, available online at: http://www.ojjdp.ncjrs.org/ojstatbb/ezashr/asp/Off_Display.asp, accessed on August 3, 2005. The European and U.S. data are slightly different in the following ways: (1) the European data may include juveniles convicted for intentional homicide (defined as both attempted and completed homicide), whereas the U.S. data only includes completed homicides; and (2) the U.S. data are for children between the ages of one to seventeen; whereas the European data may be more variable based on each country's youngest possible age that could be included in the dataset (for example, Cyprus, France, Greece and Switzerland could include individuals as young as seven years old). In addition, individuals aged eighteen and nineteen could be included in the data from Austria. Nevertheless, it is reasonable to assume that the age-spread of juvenile homicide offenders in Europe tended toward the fourteen to seventeen range, making the data fairly comparable to those from the United States.
[332] Human Rights Watch interview with Kevin C., Centennial Correctional Facility, Cañon City, Colorado, July 27, 2004 (pseudonym) (unless otherwise noted, all statements attributed to Kevin C. in this case study were obtained during this interview).
[333] Email correspondence with Human Rights Watch from Judith C., Colorado, May 17, 2005.
[334] Human Rights Watch telephone interview with Frank C., Colorado, October 22, 2004.
[335] Human Rights Watch telephone interview with Judy C., Colorado, October 22, 2004.
[336] "Youth on Trial," The Denver Post, November 28, 1995.
[337] Ibid.
[338] Email correspondence with Human Rights Watch from Judith C., Colorado, May 17, 2005.
[339] "Youth on Trial," The Denver Post, November 28, 1995.