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Adult Time for Adult Crime: America Has No Global Duty to Ban Juvenile Life Sentences

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Unread 11.02.09, 06:12 PM
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Adult Time for Adult Crime: America Has No Global Duty to Ban Juvenile Life Sentences

On 11.02.09 12:57 PM posted by Cully Stimson

Many opponents of life without parole for juvenile offenders claim that the continued use of this sentence puts the United States in breach of its obligations under international law. Specifically, they name three treaties as barring the administration of this sentence in the United States: the Convention on the Rights of the Child, the International Covenant on Civil and Political Rights, and the Convention Against Torture.

All of these assertions are false.

Increasingly, political activists have been using the aspirational language that is often present in international agreements to advance their domestic political agendas, especially when their causes fail to win support in the United States among voters and legislators. As described above, some activists and academics go further, claiming that the laws of foreign nations, as opposed to treaties that the United States may have signed, ratified, and implemented, should determine the meaning of domestic laws and even the U.S. Constitution.

This view is known as internationalism and, in its more extreme forms that incorporate foreign law, transnationalism. Neither, whatever its merits, is availing in this case. A careful analysis of the treaties and, crucially, the United States’ obligations under them refutes the claim that international law precludes U.S. states from sentencing juvenile offenders to life without parole.

The Constitution Is America’s Fundamental Law

The Constitution is America’s fundamental law, and it controls how treaties interact with its provisions and other domestic laws. That road map can be found in Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.

For the United States to become a party to a treaty, the President first must sign the treaty and send it to the Senate, at least two-thirds of which must give its advice and consent before the treaty can be ratified. After the Senate has voted to give its consent to ratification, the President may then ratify it, if he so chooses, by signing the instrument of ratification. Treaties that have not been approved in this way are generally not binding on the United States. Even in the extremely rare circumstance that treaties or parts of treaties become a part of “customary” international law and thereby binding upon the United States even though unratified, they still cannot by themselves override domestic statutes.

Many treaties, even if ratified, do not themselves preempt existing domestic laws, but must await subsequent legislation to implement their terms. Only “self-executing” treaties—those that do not require implementing legislation—become the type of federal law that can preempt conflicting state and federal laws.

Few modern treaties, however, are self-executing, and often a treaty will provide on its face that it is not self-executing. Whether express or implied, courts will not enforce treaties that are not self-executing until an act of Congress specifies how the rights or privileges are to be enforced. Thus, treaties that are not self-executing and that have not been implemented by Congress (which may include specifying available causes of action, remedies, court jurisdiction, etc.) do not themselves establish domestically binding legal remedies.

Further, the United States often does not agree to be bound by every term of an international convention, and it cannot do so if some terms conflict with the U.S. Constitution. As a matter or national sovereignty, the United States may adopt whatever portion of international conventions it deems appropriate, a practice that has a long pedigree under international law. When nations sign or ratify a treaty, they often enter “reservations” and “understandings” that govern the treaty’s domestic and international implementation.

The Vienna Convention on the Law of Treaties defines a reservation as “a unilateral statement…made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” Under the convention’s formulation, reservations are effective so long as they are not prohibited by the treaty or incompatible with its “object and purpose.” Understandings serve to notify other parties to the treaty of a nation’s interpretation of specific terms, particularly as those terms apply to its laws. Both reservations and understandings may alter the application of a treaty’s terms to a particular party.

Once a treaty has been properly executed and implementing legislation has been enacted, there is the question of how it interacts with other laws. In general, a federal statute and a properly executed treaty have equal status in law, with the latter in time taking precedence. This is true, though, only to the extent that a conflict actually exists between the two; to the extent possible, courts interpret statutes so as to avoid violation of international obligations. Therefore, if Congress passes a law that clearly contradicts earlier treaty obligations, courts will enforce the law over the treaty. The obligations of properly executed and implemented treaties, being a part of federal law, can be enforced against the states under the Supremacy Clause, but only if they do not violate the U.S. Constitution, including fundamental protections of state sovereignty.

Finally, courts employ several special rules of interpretation when applying treaties. First, when interpreting the meaning of treaty language, courts generally “rely on clarifications, interpretations, and understandings of a treaty formulated by the executive branch.” Second, courts will not infer an obligation from a treaty that has not been articulated in clear terms. These rules, taken together, impose a greater burden of clarity and specificity than is generally required of statutory law.

The result of these requirements is that those who would wield vague language in international treaties against state laws have a number of hurdles to clear before a court even considers the substance of their claims, and failure to clear even one of these hurdles will defeat the claim.

The U.S. Is Not a Party to the Convention on the Rights of the Child

Article 37(a) of the Convention on the Rights of the Child (CRC) states, “Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age.” This language, observe opponents of life-without-parole sentences for juvenile offenders, unambiguously prohibits imposition of life without parole on juveniles.

The United States, however, has not ratified the CRC. Although President Clinton signed the treaty in 1995, the Senate has never consented to ratification. Since the United States is not a treaty party, it is therefore not bound by Article 37 or any other provision of that treaty. Even if it were self-executing, the treaty is not a part of U.S. law.

Nonetheless, some claim that the CRC is binding on the United States even though it has never been ratified. They make two arguments. The first is that, because the U.S. signed the treaty, it is prohibited from taking actions that would defeat its “object and purpose” and that continuing to allow life-without-parole sentences for juvenile offenders is such an action. The second is that, because the CRC has been ratified by nearly every other country in the world, it constitutes customary international law that is binding on the United States.

Neither of these arguments is valid.

The “object and purpose” argument goes as follows: (1) Article 18 of the Vienna Convention on the Law of Treaties—a treaty that the U.S. has only signed but some provisions of which have been accorded the status of customary law—states that if a nation has signed a treaty but has not ratified it, the nation is still “obliged to refrain from acts which would defeat the object and purpose of [the] treaty”; (2) allowing practices contrary to the treaty would defeat its object and purpose; (3) thus, because sentencing juveniles to life without parole is forbidden by the CRC, Article 18 requires that the United States, as a CRC signatory, desist from this practice.

This argument contains two fundamental errors. The first is that the class of “acts which would defeat the object and purpose of a treaty” does not include all acts that are prohibited under the treaty. The very use of the phrase “object and purpose” rather than “terms” or “provisions” indicates that the two classes are not equivalent. Article 18 is, in both practice and custom, far narrower, forbidding “only actions deliberately calculated to undermine a state’s ability eventually to comply, including and especially any uniquely irreversible action.”

Allowing states to impose sentences forbidden by the CRC (on the questionable assumption that Congress even has the power to forbid such sentences at all) in no way prevents eventual compliance should the treaty ever be ratified; indeed, it is a position that, following ratification, could be reversed immediately by Congress, relying on its treaty power and the Supremacy Clause. It is far more likely, though, that ratification would be accompanied by a reservation rejecting the prohibition on life-without-parole sentences for juvenile offenders.

The second error is the assertion that Article 18 requires signatory nations to change their laws to comply with unratified treaties. Quite the opposite: Article 18 does not create an obligation to undertake specific actions, such as passing new laws, but only an obligation to refrain from undertaking certain types of actions. A nation is therefore under no obligation to change its laws to match a treaty’s terms upon becoming a signatory; it merely must “refrain” from changes that would prevent eventual implementation of the treaty if it were ratified.

Thus, having signed but not ratified the CRC does not oblige the United States to change its laws to prohibit life-without-parole sentences for juvenile offenders. Absent ratification, Congress lacks the power to accomplish such an end as against the states.

Further, the U.S. Constitution demands this result. A maximally broad construction of Article 18 would render the Constitution’s ratification requirement a nullity, because the nation would be completely bound by any treaty that was merely signed. Even were this the customary meaning of Article 18 (which it is not ), customary international law simply cannot overrule the clear text and requirements of the U.S. Constitution, which requires, in addition to signing, ratification.

Likewise, the CRC itself has not attained the status of binding customary international law such that it imposes international expectations upon non-parties. Customary international law “is the law of the international community that ‘results from a general and consistent practice of states followed by them from a sense of legal obligation.’” This standard demands far more than even widespread ratification. The fact, then, that the CRC has been ratified by many states does not render it binding on a non-party.
Moreover, the ongoing practices of many of the states party to the CRC, such as France, Brazil, and Venezuela, are not at all consistent with many of the convention’s provisions. By their own admission, several states party to the CRC sentence juveniles to life without parole or reserve the right to do so. Finally, even if it were customary international law, it probably would not by itself overturn contrary domestic law, but rather would merely render the United States out of compliance with international norms.

The International Covenant on Civil and Political Rights Does Not Prohibit Juvenile Life Without Parole in the U.S.

A second international treaty that some argue forbids sentencing juveniles to life without parole is the International Covenant on Civil and Political Rights (ICCPR), the primary human rights treaty for the protection of civil and political rights, which, unlike the CRC, was ratified by the United States in 1992. Specifically, activists claim that such sentences are a prohibited form of punishment for juveniles under Articles 7, 10, and 14 of the treaty.

This, too, is unavailing.

The Senate made quite clear when ratifying the treaty that it is not self-executing—that is, it does not preempt existing U.S. law and is not directly enforceable except to the extent that it has been implemented in legislation by the states and Congress. Without this limitation, which was undertaken specifically to preclude courts from relying on the treaty’s broad provisions to rewrite domestic law, the Senate would not have ratified it.

Further, the ICCPR is silent regarding the sentence of life without the possibility of parole, much less under what circumstances that sentence may be imposed on juveniles. Instead, Article 7 contains a general prohibition on “cruel, inhuman or degrading treatment or punishment” without defining or further elaborating upon the meaning of those words.

Moreover, the U.S. entered a reservation to Article 7 to protect its laws against that potentially capacious language. This reservation specified that the United States will consider itself bound by that provision only “to the extent that ‘cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” As a result, Article 7 (to the extent executed) cannot impose any additional obligations on the United States beyond those already required by the Fifth, Eighth, and Fourteenth Amendments, none of which prohibits sentencing juveniles to life without parole.

Whether Article 7’s prohibition on “cruel, inhuman or degrading treatment or punishment” would otherwise encompass such sentences remains an open question—one that is debated every four years when the U.S. submits its report to the United Nations Human Rights Committee. As concerns the domestic law of the United States, however, the question is moot because of the rider and the treaty’s non-self-executing status.

Claims that Articles 10 and 14 of the ICCPR prohibit such sentences are likewise unsupported. Article 10(3), which addresses permissible conditions of confinement, declares, “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” Article 14 does not deal with conditions of confinement, but rather addresses criminal procedure. Specifically, regarding juveniles, it states, “In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.”

As with Article 7, the U.S. entered a specific reservation regarding Articles 10 and 14, expressly reserving “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.” Moreover, to make clear to the Human Rights Committee and the other ICCPR states parties regarding U.S. views concerning incarceration, the U.S. entered a separate understanding that states: “The United States further understands that paragraph 3 of Article 10 does not diminish the goals of punishment, deterrence, and incapacitation as additional legitimate purposes for a penitentiary system.”

Read together, these reservations and understandings eviscerate the argument that Article 10 or Article 14 obliges the United States to cease sentencing juveniles to life imprisonment without parole. Notwithstanding any broad interpretation of the text of these articles, the U.S. reservation contemplates that juveniles may be tried and sentenced the same as adults under “exceptional circumstances,” such as murder and other violent felonies, and that they may be imprisoned for the purposes of “punishment, deterrence, and incapacitation,” all of which are significantly furthered by the sentence of life without parole.

In sum, these articles, through the lens of the United States’ reservations and understandings, alter existing U.S. law little or not at all, and they certainly do not cast legal doubt on sentencing juveniles to life without parole.

The Convention Against Torture Does Not Prohibit Juvenile Life Without Parole in the U.S.

Some argue that the sentencing of juveniles to life without parole violates the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which the United States ratified in 1994. Article 16 of the CAT requires that a party to the treaty “shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture…when such acts are committed by…a public official or other person acting in an official capacity.”

The argument, then, is that such sentences amount to “cruel, inhuman or degrading treatment or punishment” under the treaty. Yet, contrary to that argument, the official monitor of CAT implementation does not agree that the text of Article 16 prohibits such sentences.

The Committee Against Torture considered the issue directly in its most recent report on the United States, as it had in previous reports. But unlike in other areas, where the committee specifically contested U.S. interpretations of the CAT and stated that the U.S. “should adopt” specific measures to be in full compliance, it could state only that sentencing juveniles to life without parole “could constitute cruel, inhuman or degrading treatment or punishment” and that the U.S. should therefore “address the question” of their propriety. The committee, in other words, seems to disapprove of such sentences but still could not say that they actually violated the treaty.

Additionally, just as it did with the ICCPR, the United States entered a reservation to Article 16, agreeing to be “bound by the obligation under article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment’, only insofar as the term…means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.” Thus, even were life-without-parole sentences for juvenile offenders ordinarily prohibited by Article 16 (which they are not), that prohibition would not be a part of U.S. law and would not be enforceable against the states.

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