Advocates of ending life without parole (LWOP) for juveniles make various claims to promote their agenda. One of their claims is that by allowing juvenile life without parole (JLWOP), the US is in violation of international law. The US, they claim, has an international obligation to end JLWOP and give all juvenile criminals a chance to be released, regardless of the crimes they commit. This is false. Below we debunk the claims of advocates of juvenile murderers.
Is America the Only Country with JLWOP?
Anti-JLWOP advocates often claim that the US is the only country in the world that allows JLWOP. This is just not true. Australia is one country that allows JLWOP (Fitz Gibbon, 82-83). So is Israel (Debating Life without Parole for Young People).
Also, it should be noted that many countries do not have LWOP for juveniles because they do not have LWOP for anyone or only allow it in very extreme cases. For example, in Germany, one serving a life sentence can be paroled after 15 years. In France, most lifers can be paroled after 18 years or 22 years if they are repeat offenders. In cases involving children who are raped or tortured and murdered the court can impose a term of 30 years or decide that they cannot be paroled. In Norway, an offender may be paroled after 21 years, no matter what type of crime they commit. In fact, Anders Breivik, a mass murderer who killed an astonishing 77 people, will be eligible for parole after 21 years (FACT OR FICTION: NOT ALL “LIFE SENTENCES” AROUND THE WORLD ARE ACTUALLY FOR LIFE). These countries have not recognized something special about juveniles, as anti-JLWOP advocates claim. Rather, juveniles cannot get LWOP because no one can.
Is the US Violating Treaties or International Law By Allowing JLWOP?
The answer is no, as explained in detail below. The Supreme Court has rejected this claim. In fact, those who argue against JLWOP before SCOTUS have stopped making this claim because of SCOTUS’s rejection of it. Anti-JLWOP advocates may have stopped trying to convince SCOTUS of this claim but they still put forth this argument when addressing legislators and others, in the hopes that those they are trying to convince are not familiar with international law.
Is the US Obligated to Free Teen Killers Under 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.”
The treaty was signed by President Bill Clinton in 1995. However, it has never been ratified by the US. We are therefore not bound by any of the treaty’s provisions. Advocates of teen killers claim that because the US has signed the treaty, we are prohibited from taking actions that would defeat its “object and purpose.” Sentencing juvenile murderers to LWOP, they argue, would be one such action.
Article 18 of the Vienna Convention on the Law of Treaties (which the US has only signed but some provisions of which have been accorded the status of customary international law) states that if a nation has signed a treaty but not ratified it, it is still “obliged to refrain from acts which would defeat the object and purpose of [the] treaty.” But “acts which would defeat the object and purpose of a treaty” do not include all acts that the treaty prohibits. As Heritage Foundation Senior Legal Fellow Charles Stimson wrote in testimony to the Ohio House Criminal Justice Committee, “[t]he very use of the phrase ‘object and purpose’ rather than ‘terms’ or ‘provisions’ indicates that the two classes are not equivalent.” Rather Article 18 only forbids actions deliberately calculated to undermine a state’s ability eventually to comply, including and especially any uniquely irreversible action.” Mr. Stimson further writes:
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) would in no way prevent eventual compliance in the unlikely event that the treaty should 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 in the Constitution. It is far more likely, though, that if the CRC were ever to be resubmitted to the Senate and ratified, such ratification would be accompanied by a reservation rejecting the prohibition on life-without-parole sentences for juvenile offenders.
Also, Article 18 does not require signing nations to change their laws to comply with unratified treaties, only that they refrain from taking certain new irreversible actions.
Advocates of ending JLWOP also argue that because the CRC has been ratified by nearly every other country, it is customary international law and is binding on the US. This is also false. 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’” (Bradley and Goldsmith). CRC is not customary international law just because it has been widely ratified.
Many other countries that are parties to the CRC engage in practices that are not consistent with its terms. Such countries include France, Brazil, and Venezuela. In fact, several countries that are party to the CRC have JLWOP (Fagan, 104-107).
Is the US Obligated to Free Teen Killers Under The International Covenant on Civil and Political Rights?
The US ratified the International Covenant on Civil and Political Rights (ICCPR) in 1992. However, the treaty says nothing about LWOP for anyone, including juveniles. Article 7 prohibits “cruel, inhuman or degrading treatment or punishment.”
Article 7 of the ICCPR does not define or elaborate upon these words. International Covenant on Civil and Political Rights, article 7. The US entered a reservation to Article 7 that protects its laws from capacious language. The US will consider itself bound by this provision but to the extent that “cruel, inhuman or degrading treatment or punishment” means based on what the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution prohibit (United Nations Treaty Collection, International Covenant on Civil and Political Rights 14). And our Constitution does not forbid JLWOP. The Supreme Court has repeatedly made this clear.
Article 10 of the ICCPR declares, “[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Article 14 says about juveniles “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” (International Covenant on Civil and Political Rights, art 40). The US entered a specific reservation regarding Article 10 and Article 14 which reserved “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.” United Nations Treaty Collection, International Covenant on Civil and Political Rights 14, The U.S. also 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” (United Nations Treaty Collection, International Covenant on Civil and Political Rights 14).
Is the US Obligated to Free Teen Killers Under The Convention Against Torture?
The US ratified the Convention Against Torture (CAT) in 1994. Article 16 of CAT requires parties to “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”(Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 16). Juvenile killer advocates argue that JLWOP constitutes cruel, inhuman or degrading treatment or punishment. The Committee Against Torture has considered this argument in a report on the US. They only said that sentencing juveniles to LWOP “could constitute cruel, inhuman or degrading treatment or punishment” and that the US should “address the question” of its propriety (Committee Against Torture, Conclusions and Recommendations of the Committee Against Torture: United States of America).
Also, the US 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” (United Nations Treaty Collection, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). And again, our Constitution does not forbid JLWOP.
Bradley, Curtis and Goldsmith, Jack, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 817–18 (1997) (quoting Restatement (Third) of Foreign Relations Law of the United States §§ 102(2), 102 n.4 (1987)).
Casey, Lee & Rivkin, David Jr., International Law and the Nation–State at the U.N.: A Guide for U.S. Policymakers, Heritage Foundation Backgrounder No. 1961, August 18, 2006, available at http://www.heritage.org/Research/WorldwideFreedom/bg1961.cfm; Restatement (Third) of Foreign Relations Law of the United States § 312 cmt. i (explaining that the obligation “to refrain from acts that would defeat the object and purpose” of a treaty prohibits acts with consequences that “might be irreversible” but not those that allow compliance to “be effected later”).
Committee Against Torture, Conclusions and Recommendations of the Committee Against Torture
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 16
Fagan, Patrick, How U.N. Conventions on Women’s and Children’s Rights Undermine Families, Religion and Sovereignty, The Heritage Foundation Backgrounder No. 1407, Feb 5, 2001.
International Covenant on Civil and Political Rights, art. 7, December 16, 1966, http://www.unhchr.ch/html/menu3/b/a_ccpr.htm.
International Covenant on Civil and Political Rights, art. 40, December 16, 1966, http://www.unhchr.ch/html/menu3/b/a_ccpr.htm. 14(4)
United Nations Treaty Collection, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 6, (Reservation I(1) of the United States of America).
United Nations Treaty Collection, International Covenant on Civil and Political Rights 14, (Reservation 5 of the United States of America).