September 24, 1999

The Honorable Seth Waxman
Solicitor General
Department of Justice
950 Pennsylvania Avenue
Washington, D.C. 20530

Re: Domingues v. Nevada, No. 98-8327

Dear Solicitor General Waxman:

We write with regard to the petition for a writ of certiorari currently pending in the case of Domingues v. Nevada, No. 98-8327. As you know, the Supreme Court has invited you to file a brief expressing the position of the United States on this petition, which raises the issue of the United States' international obligations concerning the application of the death penalty to child offenders. See 119 S. Ct. 2044 (1999).

The application of the death penalty to children is a particularly egregious practice that has been effectively abolished by the vast majority of nations. The near universal acknowledgment of the inherent wrong of imposing the death sentence for crimes committed by individuals under the age of eighteen highlights the deeply unjust and anomalous nature of this practice. The promotion of national human rights objectives abroad requires, among other things, that the United States begin to acknowledge its own obligations under international law and to cease the anachronistic practice of executing juvenile offenders.

We respectfully submit our analysis of the international legal obligations of the United States that forbid its application of the death penalty to juvenile offenders and, in this case, to Michael Domingues. The United States' obligations under customary international law, as a state party to the International Covenant on Civil and Political Rights ("ICCPR"), and as a signatory to the American Convention on Human Rights ("American Convention") and the U.N. Convention on the Rights of the Child require it to end the practice of imposing capital punishment on persons for crimes committed under the age of eighteen. We urge your office to recognize these obligations and not, as Chief Justice Springer noted in dissent, to "join[] hands with such countries as Iran, Iraq, Bangladesh, Nigeria and Pakistan in approving death sentences for children." Domingues, 961 P.2d at 1281 (Springer, C.J., dissenting).

Factual Background

Michael Domingues, a Hispanic male born January 29, 1977, was convicted in August 1994 of one count of robbery, one count of burglary, and two counts of murder, crimes which he committed when he was sixteen years of age. See Domingues v. Nevada, 961 P.2d 1279, 1279 (Nev. 1998). He was sentenced to death for the two murder counts, and the Nevada Supreme Court upheld his conviction and sentence on direct appeal. See Domingues v. Nevada, 917 P.2d 1364 (1996), cert. denied, 519 U.S. 968 (1996). None of the issues raised by the pending petition was addressed at that time. See id.

Subsequently, Domingues filed a motion for correction of illegal sentence, contending that the international legal obligations of the United States preclude application of the death penalty to any person for crimes committed below the age of eighteen. The Nevada District Court summarily denied the motion, concluding that "the sentence was not facially illegal and, thus, it lacked jurisdiction to correct the sentence." 961 P.2d at 1280. On appeal, the Nevada Supreme Court affirmed the district court's ruling on the sole ground that a Senate reservation to the ICCPR, ratified by the United States on September 8, 1992, permits Nevada to apply the death penalty to juvenile offenders in violation of the express terms of this treaty. See id. Two of the five justices dissented. Chief Justice Springer noted that "[u]nder the majority's interpretation of the treaty, the United States, at least with regard to executing children, is a 'party' to the treaty, while at the same time rejecting one of its most vital terms." Id. at 1280 (Springer, C.J., dissenting). Justice Rose observed that the district court neglected even to consider the effect of the Senate's purported reservation to the ICCPR; instead, after only "a brief hearing, the district court summarily concluded that the death sentence was facially valid." Id. at 1281 (Rose, J., dissenting). At a minimum, Justice Rose noted, "this complicated issue [of treaty law] deserved a full hearing, evidentiary, if necessary." Id. In addition, the Nevada Supreme Court did not address Michael Domingues' rights under customary international law.

I. International Treaties Ratified or Signed by the United States Require the Executive to Ensure That the Death Penalty Is Not Applied for Crimes Committed Below the Age of Eighteen

The United States has ratified the ICCPR and signed but not ratified the American Convention and the Convention on the Rights of the Child, treaties that all prohibit the imposition of the death penalty on juvenile offenders. As a state party to the ICCPR and as a signatory to the American Convention and the Convention on the Rights of the Child, the United States assumes an unequivocal legal obligation to refrain from executing children.

A. The ICCPR, the American Convention, and the Convention on the Rights of the Child All Explicitly Forbid the Imposition of the Death Penalty on Juvenile Offenders

Article 6(5) of the ICCPR provides that "[s]entence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women." Similarly, Article 4(5) of the American Convention requires that "[c]apital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women." Finally, under Article 37(a) of the Convention on the Rights of the Child, "[n]either capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below 18 years of age."

B. The United States May Not Undermine the Object and Purpose of Treaties It Has Signed by Allowing States to Apply the Death Penalty to Juvenile Offenders

The United States must respect the object and purpose of the treaties it has signed. See Vienna Convention on the Law of Treaties, Article 18(a). The ICCPR, the American Convention, and the Convention on the Rights of the Child are seminal human rights instruments intended to promote common international standards that govern states' treatment of their citizens. Respect for the right to life is fundamental to secure all other human rights. Indeed, a state may not derogate from the right to life, even in times of public emergency. See ICCPR, Article 4(2); American Convention, Article 27(2). To permit states to ignore or place restrictions on the right to life as guaranteed in these treaties would defeat a central protection of international human rights instruments. For these reasons, the U.N. Human Rights Committee, charged under Article 40 of the ICCPR with the treaty's oversight and interpretation, recognized with respect to the ICCPR in its concluding observations to the United States' initial report that state laws that permit the execution of persons under the age of eighteen are antithetical to the internationally acknowledged norms contained in these treaties and necessarily defeat the treaties' object and purpose. See U.N. Doc. CCPR/81/Add.4; see also Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, U.N. Doc. E/CN.4/1998/68/Add.3, para. 29 (1998).

C. The United States May Not Take Reservations to the ICCPR That Defeat Its Object and Purpose

Upon ratifying the ICCPR, the United States declared that it "reserve[d] the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age." 138 Cong. Rec. S4781-01 (daily ed. Apr. 12, 1992). The Human Rights Committee has found that this reservation to Article 6(5) is incompatible with the treaty's object and purpose:

The Committee regrets the extent of the State party's reservations, declarations and understandings to the Covenant. It believes that, taken together, they intended to ensure that the United States has accepted only what is already the law of the United States. The Committee is also particularly concerned at reservations to article 6, paragraph 5, and article 7 of the Covenant, which it believes to be incompatible with the object and purpose of the Covenant.

Annual General Assembly Report of the Human Rights Committee, U.N. Doc. A/50/40, para. 279 (1995) (article 7 of the ICCPR prohibits the use of torture or cruel, inhuman, or degrading treatment by a state).

The United States may not take reservations that defeat the object and purpose of a treaty. See Vienna Convention on the Law of Treaties, Article 19(c). Because its reservation to Article 6(5) would defeat the object and purpose of the ICCPR, the reservation is void as a matter of international law. Accordingly, the United States is obligated to cease its practice of executing juvenile offenders.

II. Customary International Law Requires the Executive Branch to Ensure That the Death Penalty Is Not Applied to Juvenile Offenders

The United States is one of only a handful of nations that continue to execute children for crimes committed between the ages of sixteen and eighteen. State practice, particularly since the entry into force of the Convention on the Rights of the Child, manifests an overwhelming trend against application of the death penalty to juvenile offenders.

A consistent and widespread state practice combined with a felt conviction that the rule followed is obligatory rather than merely habitual indicate that the norm has risen to the level of customary international law. Unlike treaty law, customary international law generally binds all states, including those that have not expressly consented to it. See Restatement (Third) of Foreign Relations Law of the United States § 102(1), (2).

Customary international law is the law of the land. As the Supreme Court affirmed in The Paquete-Habana,"International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations . . . ." 175 U.S. 677, 700 (1900); see generally Harold Honju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824 (1998) (noting that customary international law is federal common law and preempts inconsistent state practices).

In this case, as noted above, several U.S. treaty obligations constrain the imposition of capital punishment on child offenders. But even absent these obligations, the United States is bound by the norm of customary international law that overwhelmingly condemns the practice of executing children.

A. State Practice and Opinio Juris Overwhelmingly Reject the Application of the Death Penalty to Juvenile Offenders

While some one hundred nations retain domestic laws that in theory permit capital punishment for crimes committed by persons under the age of eighteen, only a handful continue to carry out such executions. From approximately 1985 to 1995, only six other nations were known to execute children: Barbados, Bangladesh, Iran, Iraq, Nigeria, and Pakistan. In the 1990s, according to Amnesty International, only six countries other than the United States--Iran, Nigeria, Pakistan, Saudi Arabia, and Yemen--have been known to execute juvenile offenders. See, e.g., Victor L. Streib, The Juvenile Death Penalty Today 7 (1999); Human Rights Watch, United States: A World Leader in Executing Juveniles 2-3 (1995).

Opinio juris, the perception on the part of state officials that a practice (or the prohibition of a practice) is a matter of international legal obligation, indicates that there is a clear norm against executing juvenile offenders. Indeed, a review of the sources of opinio juris compels the conclusion that international consensus condemns the execution of persons for crimes committed prior to the age of eighteen to an even greater extent than state practice does.⁽¹⁾

As noted above, the ICCPR, the American Convention, and the Convention on the Rights of the Child all contain express provisions that proscribe capital punishment for children. The Geneva Convention Relative to the Protection of Civilians likewise prohibits the imposition of capital punishment in the context of interstate armed conflict for offenses committed by persons below the age of eighteen.

United Nations organs have also condemned the application of the death penalty to juvenile offenders. In 1984, the U.N. Economic and Social Council issued Resolution 1984/50, which states that "[p]ersons below 18 years of age at the time of the commission of the crime shall not be sentenced to death." The U.N. Standard Minimum Rules for the Administration of Juvenile Justice proscribe the use of capital punishment for juvenile offenders. The Special Rapporteur on Extrajudicial, Summary or Arbitrary executions has spoken against the practice in Iran, Nigeria, Pakistan, Saudi Arabia, and the United States of continuing to inflict the death penalty on "prisoners who were under 18 at the time of the crime." Finally, the Human Rights Committee expressly listed the ICCPR's proscription on the execution of juvenile offenders as one of several provisions that "represent customary international law."⁽²⁾

Regional tribunals have similarly condemned the execution of minors. As early as 1980, the European Court of Human Rights suggested in dicta that a member state would be in violation of the European Convention for extraditing a juvenile to the United States, where he or she would potentially face capital punishment. See Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A), at 219 (1980). In perhaps the most direct judicial treatment of this issue, the Inter-American Commission on Human Rights's 1987 opinion in the Case of James Roach and Jay Pinkerton found an emerging "norm of customary international law establishing 18 to be the minimum age for imposition of the death penalty." Case No. 9647, Inter-Am. C.H.R. 61, 78 (1987). Evidence of this norm, it noted, could be found in "the increasing numbers of States which are ratifying the American Convention on Human Rights and the United Nations Covenant on Civil and Political Rights, and modifying their domestic legislation in conformity with these instruments." Id.

Finally, the reaction of many states to the United States's purported reservation to Article 6(5) of the ICCPR provides further evidence of the broad consensus among nations that executing juveniles abrogates customary international law. Following the United States's ratification of the ICCPR in 1992, eleven states--Belgium, Denmark, Finland, France, Germany, Italy, the Netherlands, Norway, Portugal, Spain, and Sweden--objected to the U.S. reservations. See Multilateral Treaties Deposited with the Secretary-General: Status as at 30 July 1999, available on <http:www.un.org/Depts/Treaty> (visited July 30, 1999).

As the only nation in the world that has failed to ratify the Convention on the Rights of the Child (aside from Somalia, which lacks a functioning government), the United States stands alone in claiming the legal right to continue to impose capital punishment for offenses committed by persons below eighteen years of age.

B. The United States Has Not Manifestly and Consistently Objected to This Norm of Customary International Law and Is Bound by It

A state that has "manifestly and continuously" objected to a rule of customary international law is arguably not bound by it "so long as the objection was made manifest during the process of the rule's emergence." Ted L. Stein, The Approach of a Different Drummer: The Principle of the Persistent Objector in International Law, 26 Harv. Int'l L.J. 457, 458 (1985). In order to benefit from this "persistent objector" exception to otherwise binding customary international law, the state must "indicate[] its dissent from a practice while the law is still in a state of development." Restatement (Third) of the Foreign Relations Law of the United States § 102 cmt. d (emphasis added). A state which does not consistently object to a rule of customary international law as it is emerging is bound by it. Id.

The United States did not manifestly and continuously object to the international prohibition on the execution of juvenile offenders while that law was still in a state of development. For example, it did not object to the language of Article 6(5) of the ICCPR when that treaty was being negotiated and drafted in the 1950s and 1960s. Moreover, during the drafting phase of the American Convention, the United States not only offered no objection to that document's prohibition on the execution of juvenile offenders but contended that setting a specific age limit in the treaty would fail to take into account the "already existent trend" toward the abolition of the death penalty altogether.

Indeed, the United States's actions during and immediately after the drafting of the ICCPR and the American Convention lend support to the conclusion that it recognized the existence of the emerging norm. From the time that the norm was developing to the present day, the federal government consistently has set the minimum age at eighteen for the imposition of capital punishment in federal criminal cases. In addition, no juvenile executions were conducted at the state level between 1964 and 1983. Until this year, in fact, no state had executed a defendant since 1959 for crimes committed at the age of sixteen.

C. This Rule of Customary International Law Has Attained the Status of a Peremptory Norm

Under Article 53 of the Vienna Convention on the Law of Treaties, a peremptory norm of international law is "a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Peremptory norms, or jus cogens, "prevail over and invalidate international agreements and other rules of international law in conflict with them." Restatement (Third) of Foreign Relations Law of the United States

§ 102 cmt. k.

The international prohibition on the juvenile death penalty has the character of a peremptory norm. As noted above, it is explicitly prohibited by nonderogable provisions of the ICCPR, the Convention on the Rights of the Child, and other international treaties that have been ratified by the vast majority of countries in the world. All but a handful of nations have abolished the practice. Moreover, the traveaux préparatoires of the ICCPR indicate that Article 6 was considered to be a codification of existing customary law and represented an entrenched norm that reflected the international consensus. The U.N. Human Rights Committee has equated Article 6(5) with the prohibitions on slavery, torture, and arbitrary deprivation of life, each of which is recognized as a peremptory norm. See Restatement (Third) of Foreign Relations Law of the United States § 702 & cmt. n. The Sub-Commission on the Promotion and Protection of Human Rights has described the customary international norm prohibiting the imposition of the death penalty as "enshrined" in the ICCPR.⁽³⁾

III. Eighth Amendment Jurisprudence on the Execution of Juvenile Offenders Is Not Inconsistent with Respect for International Law

The Supreme Court's decisions in Thompson v. Oklahoma, 487 U.S. 815 (1988), and Stanford v. Kentucky, 492 U.S. 361 (1989), hold, respectively, that (1) the execution of juvenile offenders below the age of sixteen is unconstitutional but that (2) the Eighth Amendment's prohibition of cruel and unusual punishment, construed in accordance with the "evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles, 356 U.S. 86, 101 (1958), does not forbid the execution of juvenile offenders for crimes committed while aged sixteen or seventeen. Neither of these cases, however, address the core issue before the Court in Domingues--namely, whether the execution of a person for crimes committed prior to the age of eighteen violates international legal obligations assumed by the United States by treaty and customary international law, binding through the Supremacy Clause on the several states. Domingues v. Nevada thus presents for the Court's decision a wholly distinct issue from that addressed in either Thompson or Stanford.

The Court has divided over whether the practices of foreign states should inform Eighth Amendment analysis of the "evolving standards of decency that mark the progress of a maturing society." Compare Stanford, 492 U.S. at 370 n.1 (Scalia, J.) (emphasizing that "it is American conceptions of decency that are dispositive") with id. at 384 (Brennan, J., dissenting) (affirming that "the choices of governments elsewhere in the world also merit our attention as indicators whether a punishment is acceptable in a civilized society"). Even within the United States, however, the evidence of state legislatures and sentencing decisions in recent years suggests a trend towards acknowledging the impropriety and anachronism that juvenile executions reflect in a society that perceives itself as mature and civilized.

Thirteen American jurisdictions (twelve states and the District of Columbia) have abolished the death penalty. An additional fifteen of the thirty-nine death penalty jurisdictions remaining (thirty-nine states and the federal government) have established eighteen as the minimum age that renders a convicted felon eligible for capital punishment. Five states have set the minimum age at seventeen. Only nineteen states continue to permit executions of those convicted of crimes committed at sixteen and seventeen years of age. See Streib, supra, at 5. And Montana, one of these remaining nineteen, has abolished, effective October 1, 1999, the death penalty for those under eighteen at the time of their crimes. See Mont. Code Ann.§ 41-5-503 (1999). Moreover, between 1985 and February 1999, only seven states have in fact carried out such executions; of these, Texas accounts for over half (seven) of the thirteen juvenile executions committed in this period. "Without Texas," as Streib observes, "the United States would have only minimal involvement in the death penalty for juvenile offenders." Streib, supra, at 4.

The informed judgments of professional "organizations with expertise in relevant fields" also support this conclusion. See Stanford, 492 U.S. at 384 (Brennan, J., dissenting). In both Thompson and Stanford, the Child Welfare League of America, the American Bar Association and the American Society for Adolescent Psychiatry each expressed its opposition to the infliction of the death penalty on juvenile offenders. See id. at 361; Thompson, 487 U.S. at 815. Indeed, the American Bar Association has categorically opposed the execution of juveniles since August 1983.⁽⁴⁾

As Justice Ansted of the Florida Supreme Court noted in his concurrence to a recent judgment rejecting, under the Florida constitution, the conclusion in Stanford,

While the U.S. Supreme Court has suggested we may look to the standards in place elsewhere, we as a mature society have already made a clear and valid choice, and we need only stand by it. Surely, however, even under our "evolving standards of decency" in Florida, we have not moved backwards in our assessment of human rights to the point where we consciously choose to kill those whom we have clearly defined as children.

Brennan v. Florida, No. 90-279, 1999 WL 506966 (Fla. July 8, 1999) (Ansted, J., concurring).

Conclusion

Under customary international law and as a state party to the ICCPR and a signatory to the American Convention and the Convention on the Rights of the Child, the United States is obligated not to impose capital punishment on persons who were below the age of eighteen at the time of their crimes. This case provides the United States with an opportunity to reconcile its sentencing practices with its international legal obligation to cease executing juvenile offenders.

We urge you to adopt the position that state executions of juvenile offenders violates customary international law and the United States' treaty obligations.

Sincerely,

Lois Whitman

Executive Director

Children's Rights Division

cc: The Honorable Janet Reno

The Honorable Madeleine Albright

The Honorable Harold Hongju Koh

1. The diverse sources from which opinio juris may be ascertained include international agreements (as well as the records of negotiations and correspondence culminating in the final treaty text), diplomatic communications, executive decisions, General Assembly resolutions, and the decisions of international and domestic tribunals. See, e.g., Ian Brownlie, Principles of Public International Law 5 (5th ed. 1998).

2. See Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty, ECOSOC Res. 1984/50, May 25, 1984; U.N. Standard Minimum Rules for the Administration of Juvenile Justice, G.A. Res. 40/33, art. 17.2, 40 U.N. GAOR Supp. (No. 53) at 207, U.N. Doc.A/40/53 (1985); Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, submitted pursuant to Comm. on Human Rights Res. 1997/61, Dec. 23, 1997, U.N. Doc. E/CN.4/1998/68, para. V(A)(3); U.N. Human Rights Committee, General Comment No. 24, Nov. 2, 1994, U.N. Doc. CCPR/C/21/Rev.1/Add.6, para. 8.

3. See U.N. Doc. A/C.3/Sr.819 (1957); U.N. Doc. A/C.3/SR.818 (1957) (traveaux préparatoires); Human Rights Committee, General Comment No. 24, para. 8; Sub-Commission on the Promotion and Protection of Human Rights, E/CN.4/Sub.2/1999/L.11/Add.1 (Aug. 24, 1999).

4. See American Bar Association Calls for Moratorium on Capital Punishment, Feb. 1997, available at <http://diana.law.yale.edu/diana/db/6498-2.html> (visited June 14, 1999), at n.54 (Resolution of the House of Delegates, Aug. 1983). In fact, in February 1997, the American Bar Association called for a moratorium on the death penalty until, among other recommendations, its 1983 resolution against the execution of "persons who were under the age of 18 at the time of their offenses" had been implemented. This is particularly remarkable because the ABA generally takes no official position on the substantive wisdom of the death penalty. The only other class of persons for which the ABA categorically opposes capital punishment is the mentally ill. See id.

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