American Criminal Justice Exceptionalism

One of the marks of what Harold Koh calls “bad” American exceptionalism is the way in which the US maintains different — frequently more punitive — standards of criminal procedural justice than the rest of the world. Last month, Adam Liptak kicked off what looks to be an interesting series of articles on just this question with this piece in the NYTimes examining the growing US practice of sentencing teenagers to life without parole. Liptak dosn’t call it “exceptionalism,” of course, but notes that he will be looking at “commonplace aspects of the American justice system that are actually unique in the world.” Just as with death penalty exceptionalism, these differences between the U.S. and the rest of the world — in particular, gaps between U.S. practice and that of other western democracies — will be seen as opportunistic spaces for human rights norm entrepreneurs. I have argued that where such spaces and gaps crop up, norm entrepreneurs will seek to apply the full panoply of tools — e.g., international commissions and courts, recourse to comparative law arguments, appeals to emerging norms of behavior among democratic states &mdash — to push the U.S. toward the international standard. And example of this is the way in which consular notification under the Vienna Convention on Consular Relations was exploited as a means of confronting the persistence of the death penalty in the U.S. Juvenille life sentences without parole has already become a cause for transnational norm entrepreneurs (check out this special section of the Amnesty USA website). The ever-deteriorating prison conditions in the country with the highest incarceration rate in the world (yes, the U.S.) are likely to become another target for the efforts of transnational norm entrepreneurs.