Thursday, October 08, 2009

The Supreme Court and Juveniles: International Comparisons

Bernard E. Harcourt

In response to the LA Times opinion piece on juvenile sentences of life imprisonment without parole—the Sullivan and Graham cases pending before the Supreme Court—the National Organization of Victims of “Juvenile Lifers” challenges the claim that the United States is the only jurisdiction to sentence minors to life imprisonment without parole—calling this “misinformation.” So I’ve done even more research, and, sadly (actually, I am not entirely sure how to feel), the conclusion sticks.

The best and most thorough information on international comparisons is at the Center for Law and Global Justice at the University of San Francisco School of Law. And the bottom line is that the US is now alone in this domain.

There were a number of earlier reports that Israel incarcerated several minors—seven juveniles, to be exact—to life without parole. The University of San Francisco had documented those cases in an extensive report in 2007 in which they also urged other countries, such as Australia, to clarify their legal prohibitions on juvenile LWOP. Another report issued in February 2008, that was written in part by the outstanding University of Chicago Mandel Clinic, also indicated that there were juveniles in Israel serving life sentences without the possibility of parole.

Following those reports, however, the University of San Francisco investigated the Israeli cases and confirmed that the juveniles in question are entitled to parole review. Here is the most recent information that the USF Center for Law and Global Justice provides:

"NEW INFORMATION ON JUVENILE LWOP GLOBAL PRACTICE FEBRUARY 2008--The Center has now confirmed with Israeli officials that children given life sentences, including those in the Occupied Territories which have been the subject of serious concern by the Center and other human rights groups, are entitled to parole review. There remains the concern that parole review is difficult to pursue and rarely granted. The new confirmation by Israel means that the United States, with 2,381 such cases, is now the only country in the world known to either issue the sentence or to have children serving life without parole."

Given that none of the parties or amici in the Sullivan and Graham cases have been able to identify a single juvenile serving life imprisonment without parole outside our borders, and given also that Israel and the other mentioned countries (South Africa and Australia, for instance) have all signed on to Article 37 of the Convention of the Rights of the Child prohibiting juvenile LWOP sentences—only the United States and Somalia have not!—I think it is fair to conclude that the United States is indeed alone in this practice.

[Now, this naturally raises the next question: whether international norms should inform the Supreme Court’s consideration of domestic constitutional values. I frankly think this is a bit of a scholastic debate that seems to (overly) preoccupy some legal academics, a couple of Supreme Court justices, and most right-wing talk show hosts. The simple truth is that, for most human beings and for anyone who does not have an overly constricted view of constitutional interpretation, it’s telling that we are the only nation in the world who would be willing to impose life imprisonment without parole on a 13-year-old boy who is convicted of rape, a non-homicide offense. But then again, I’ll just let the Scholastics debate this one…]

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