What’s Next After Roper and Atkins?

Now that the Supreme Court in Roper and Atkins has relied on foreign and international practices to rule that capital punishment is cruel and unusual when applied to juveniles and the mentally disabled, there has been much speculation as to whether this portends the abolition of the death penalty entirely. My prediction is that the next push for comparative constitutionalism in the Eighth Amendment context will not be the death penalty but rather juvenile life sentences. A story in the New York Times on Sunday noted that “Western Europeans regard 10 or 12 years as an extremely long term, even for offenders sentenced in theory to life,” and that “life without parole was a legal impossibility in much of the world.” Article 37 of the Convention on the Rights of the Child, which the Roper Court relied upon, provides that “neither capital punishment nor life imprisonment without possibility of release shall be imposed” for juveniles. The Times’ story is a rather open and unobjective appeal to question the American approach in meting out this punishment.

The problem is the Court in Roper relied on the continued practice of punishing juveniles with this sentence as a justification for eliminating juvenile death penalty. “To the extent the juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person.” The possibility of life without parole for juveniles was a justification for the result in Roper. It will be difficult for Roper to now be a justification for the impossibility of life without parole.

More importantly, assuming a global consensus against the punishment of life without parole for juveniles, it will be exceedingly difficult to identify a national consensus in this country against the practice. The New York Times survey highlighted the strong trend toward this punishment, not away from it. According to the survey, approximately 4,000, or 3 percent of all 132,000 prisoners sentenced to life without parole, were juveniles when they began their sentence. It is doubtful that existing community standards in this country will support abolition of this practice. And Roper underscored that we only look to foreign opinion to confirm the centrality of rights within our own heritage.