Supreme Court Goes Back to the International Well (Roper Redux)

by Peter Spiro

Justice Kennedy has returned to foreign sources in his Eighth Amendment jurisprudence with today’s decision in Graham v. Florida, striking down state statutes sentencing juveniles to life without parole for crimes other than homicide:

[A]s petitioner contends and respondent does not contest, the United States is the only Nation that imposes life without parole sentences on juvenile nonhomicide offenders. We also note, as petitioner and his amici emphasize, that Article 37(a) of the United Nations Convention on the Rights of the Child, ratified by every nation except the United States and Somalia, prohibits the imposition of “life imprisonment without possibility of release . . . for offences committed by persons below eighteen years of age.” Brief for Petitioner 66; Brief for Amnesty International et al. as Amici Curiae 15–17. As we concluded in Roper with respect to the juvenile death penalty, “the United States now stands alone in a world that has turned its face against” life without parole for juvenile nonhomicide offenders.

Why here and not in the 2008 decision in Kennedy v. Louisiana, which made not so much as a nod to international practice on the way to halting the death penalty as punishment for rape.  I had been telling my students that Louisiana evidenced a retreat in the wake of Roper‘s storm, giving in to the rabblerousers across the street.  Do we now have a rule under which international practice is relevant only where the US all by itself?

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