In Other Supreme Court News: International Law Studiously Avoided in Juvenile Life-Without-Parole Case

by Peter Spiro

The Supreme Court has struck down state laws mandating juvenile offenders to be sentenced to life without parole with its decision in Miller v. Alabama. The decision is part of a logical progression from decisions constitutionally barring the death penalty for juvenile offenders (Roper v. Simmons) and life sentences for juveniles for crimes not involving murder (Graham v. Florida).

What’s interesting for our purposes: this is another decision in which the Court makes not even a passing reference to international or foreign law.  Miller follows on Kennedy v. Louisiana in that regard (though Justice Kennedy give IL a nod in Graham).  The Court would have had plenty to work with; international practice is clearly moving away from life sentences in any context, most of all where juveniles are involved or there’s no possibility for parole. (See the amicus brief in the case from Amnesty International and other human rights organizations.)

An unconscious omission? Not a chance. The Court saw a significant backlash from its references to international law in Roper, Atkins, and Lawrence. All nominees to the Court are now asked in confirmation hearings for their positions on the use of foreign law, and all (Democrats included) freely disavow it. International law is the third rail of constitutional jurisprudence these days.

But that doesn’t mean international law is inconsequential in this context. International norms are affecting domestic actors, including states, whose practice is relevant to Eighth Amendment determinations. And the justices of course can take IL into account on the sneak, as it were, by way of adjusting US rights standards to international law without drawing the fire that explicit references will draw. The result is the same: the US comes into line.

3 Responses

  1. The Luddites are winning! Or maybe they are giving the Luddites a bad name!

  2. But Graham does discuss international and comparative law:  “There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over….  Today we continue that longstanding practice in noting the global consensus against the sentencing practice in question….  We also note, as petitioner and his amici emphasize, that Article 37(a) of the United Nations Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3 (entered into force Sept. 2, 1990), 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.”

  3. Perry, I stand corrected, post modified accordingly! It is interesting that Graham’s reference got very little play. Also somewhat mystifying that Justice Kennedy would give nod back to the international in Graham after having ignored it in Kennedy v. Louisiana. Perhaps the situation is more unstable than I had thought, though the kabuki at nominee hearings pretty clearly points away from Roper-type centering of IL for the immediate future.

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