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Strategic Litigation CRINMAIL 2:
In this issue:
EDITORIAL: U.S. Supreme Court declares sentences of life without parole unconstitutional for non-homicide juvenile offenders, but what does this really mean for children's rights?
This week, the United States Supreme Court declared some of the country's harshest sentences for children as unconstitutional "cruel and unusual" punishment. While the decision, Graham v Florida, does not go as far as children's rights advocates had hoped, it does make clear that the notoriously severe prison sentences children face on the federal level and in many of the fifty states have again crossed the boundaries of human decency.
The facts of the case date back to 2004 when Graham, a 17-year-old, was convicted of armed burglary and attempted armed robbery while on probation for similar past offenses. Although no lives were lost at any point during or as a result of Graham's actions, the prosecutor sought and the judge ordered that Graham spend the rest of his life incarcerated, the maximum sentence authorized under Florida law. Because Florida has abolished its parole system, this sentence offered Graham no hope for release and the prospect of spending sixty, seventy, eighty or even more years in prison.
While many prisoners in the United States will continue to face the possibility of a lifetime behind bars for offenses they committed as children, on Monday this prospect was deemed too dim to justify Graham's sentence or that of any other non-homicide juvenile offender.
After ending the execution of juvenile offenders in 2005, Court goes one step further
The Graham decision is in many ways a follow-up to the Court's 2005 decision in Roper v Simmons, which put an end to the execution of prisoners who were under the age of 18 at the time they committed an otherwise capital offense.
Much like in Roper, the Supreme Court made much of research presented by Graham's attorneys showing that juveniles are fundamentally different from adults both in terms of their culpability and their capacity for rehabilitation. Because children are different, the reasoning goes, perhaps the criminal justice system should treat them differently.
What the decision does
According to research from the Public Interest Law Center at Florida State University, there are currently 129 non-homicide offenders who have been sentenced to Juvenile Life Without Parole (JLWOP). The majority, like Graham, are in Florida, with the rest spread across ten states and the federal system.
In Graham, the Court notes the flaws in Florida's criminal justice system that make injustice all too common. As a particularly outrageous example, the Court discusses the case of Joe Sullivan, now 33 years old, who was tried as an adult and sentenced to JLWOP for a sexual assault committed when he was just 13. Sullivan's appeal was heard by the Court on the same day as Graham's, and - although the Court dismissed that case on other grounds – its verdict on the legality of Sullivan's sentence remains clear.
Now that JLWOP has been found unconstitutional for non-homicide offenders across the United States, Graham, Sullivan, and the 127 other similarly situated juvenile offenders no longer face a guaranteed life behind bars. And in what may lay the groundwork for future sentencing challenges, state and federal judicial and legislative systems have been told once again that they have reached beyond the acceptable limits of "tough on crime" juvenile justice policies.
What the decision does not do
While the Graham decision will no longer allow states to lock the door and throw away the key for non-homicide juvenile offenders, it also does not require states to release these offenders at any time in the near or even distant future.
Indeed, all that is required is that states "give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." The Court expressly clarified that its ruling "does not require the State to release that offender during his natural life." Since it will be up to each system to determine exactly how to review life sentences for juvenile offenders, it is entirely plausible that none of the 129 persons now serving JLWOP for non-homicide offenses will ever be released.
In a perhaps even more glaring omission, the Court's judgment also leaves intact the sentences of almost 2,500 persons in the United States serving JLWOP for homicide-related offenses. Considering that an additional estimated 5,000 persons are serving life sentences with the possibility of parole for offenses committed when they were under the age of 18, the Graham decision affects less than two percent of juvenile offenders sentenced to life imprisonment.
How the United States remains one of the worst places in the world for juvenile offenders
In many ways, Graham demonstrates just how out of step juvenile justice in the United States is with the rest of the world. Only 11 countries around the globe authorize JLWOP, and only 2 of these – the United States and Israel – impose the sentence in practice. Because there are just 7 prisoners in Israel serving JLWOP and all were convicted of homicide-related offenses, the United States held 100 percent of non-homicide JLWOP prisoners at the time of the Court's decision and over 99 percent of JLWOP prisoners overall.
Not only do children in conflict with the law in the United States face some of the longest and most severe sentences in the world, they also do not benefit from the established international consensus on children's rights that is the UN Convention on the Rights of the Child. The Convention's provision on juvenile justice would explicitly bar JLWOP sentences, but the United States now stands alone as the only country in the world that has not yet undertaken ratification to formally recognize the human rights of children.
A glimmer of hope for international children's rights
Although the Convention on the Rights of the Child has no formal force in United States law, the Supreme Court took the unusual step of citing its text in Graham. While the Court's mention of the Convention is not controlling, it represents a strong statement from the nation's highest judicial authority about the potential for international children's rights to influence proceedings in courtrooms across the country.
Indeed, while the Court's verdict was reached on an interpretation of national law, the decision emphasizes that national law cannot be scrutinized in a vacuum. Rather, "the overwhelming weight of international opinion against life without parole for non-homicide offenses committed by juveniles provide[s] respected and significant confirmation for our own conclusions." In this context, then, the Graham decision reveals a growing level of judicial awareness and openness towards international children's rights.
Baby steps for the Convention on the Rights of the Child
In the lead up to his election in November 2008, President Barack Obama promised to review the Convention on the Rights of the Child as a first step towards towards U.S. ratification. Several months later, the new administration began discussions of "when and how it might be possible to join."
Given the sometimes decades-long road that other international human rights treaties have faced in the arduous U.S. ratification process, however, an enforceable Convention on the Rights of the Child seems for the time being a rather distant prospect. Even with an organized national campaign for ratification and a publicly supportive executive branch, it may still be years before the Convention could take effect.
In the mean time, it appears that international children's rights have got a foot planted squarely in the courtroom door. While the Graham decision is far from the sweeping indictment of the juvenile justice system that advocates might have anticipated, it at the very least shows that the ideas and principles behind the Convention on the Rights of the Child have already begun to gain traction in United States law.
Read this story online here.
Further Information:
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LATEST NEWS AND REPORTS
CRIN is very grateful to announce that one of our members has translated our Guide to Strategic Litigation and Children's Rights into Turkish. The Guide is now available in English, Spanish, Arabic, and Turkish, with a French edition coming soon.
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DCI-Palestine has submitted 14 cases to the UN Special Rapporteur on Torture on the sexual assault, or threat of sexual assault, of Palestinian children at the hands of Israeli soldiers, interrogators and police between January 2009 and April 2010. DCI hopes the move will highlight the numerous rights violations children face in Israeli military courts, including coercive interrogation, lack of legal representation or family contact, and lanaguage barriers.
It is urged that the Special Rapporteur investigate these reports in the context of widespread rights abuses concerning Palestinian chilldren in the Occupied Palestinian Territory and make its findings public. Read the full story.
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The Legal Assistance Centre in Namibia released a series of illustrated guides to help victims of sexual abuse understand the criminal justice process. The guides include What to do if you are raped, Bail in cases of rape and domestic violence, A rape complainant's guide to being a witness in court, and Withdrawing a rape case - are you making the right decision?.
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CASES IN BRIEF: CRC AND JUVENILE JUSTICE
Director of Public Prosecutions KwaZulu-Natal v. P
Supreme Court of Appeal, South Africa (2005)
Background:
A 12 year old girl ("P") approached two men and asked them to help her to kill her grandmother, promising them household goods, jewellery and sexual relations. One of the men strangled P's grandmother, who was asleep under the influence of sleeping pills P had put in her tea, resulting in her death. The trial court convicted P, then 14 years old, for murder and theft. Considering P's age, the court decided to postpone its sentencing decision for 36 months, provided that P complied with the conditions of a 36 month sentence of "correctional supervision" (consisting of house arrest, supervised probation, community service, etc.). The state appealed the trial court's decision to postpone sentencing, claiming it was too lenient given the gravity of the offences committed and that P should have been sentenced to direct imprisonment.
Issue and resolution:
Sentencing and imprisonment of children. The Court decided that postponing the sentencing of P was not in the best interests of society or justice and sentenced P to seven years' imprisonment, suspended for five years on the condition that she didn't commit another violent offence during the period of suspension. The Court also upheld the 36 month sentence of correctional supervision.
Court reasoning:
The Court recognised that the imprisonment of a juvenile offender under 18 years old should be a measure of last resort and, if unavoidable, should be only for the shortest appropriate period of time. However, the sentence imposed must be in proportion to the gravity of the offence and take into consideration the needs and interests of society and justice, in addition to those of the child. The Court also took into consideration the lack of appropriate detention centres in South Africa.
Read the full case summary.
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Scantlebury v. The Queen
Court of Appeal of Barbados (2005)
Background:
Scantlebury was convicted of killing a man. At the time of the offence, Scantlebury was seventeen years old. Section 2 of the Offences Against the Person Act provides that “any person convicted of murder shall be sentenced to, and suffer death.” Section 14 of the Juvenile Offenders Act, however, disallows a sentence of death for any person under eighteen years of age. Instead, Section 14 requires any such individual “to be detained during Her Majesty’s pleasure…in such place and under such conditions as the Governor-General may direct and whilst so detained, shall be deemed to be in legal custody.” Scantlebury was sentenced to detention “during her Majesty’s pleasure.” He appealed.
Issue and Resolution:
Juvenile justice. Among other things, Scantlebury had challenged (1) the ability of the courts the impose indefinite sentences on persons convicted of murder committed while they were below the age of majority and (2) the constitutionality of the Governor-General's role in directing the place and conditions under which such a sentence may be served. The court found that the sentence was unconstitutional to the extent that it requires the government’s executive branch to determine the duration of the sentence.
Court reasoning:
Detention during Her Majesty’s pleasure is not as severe as a sentence of detention for life, but implicit in the indeterminacy of this sentence is a punitive element. Since punishment is part of the purpose of the sentence, the minimum amount of time that will be spent in detention should be established before release is considered so that the punishment is proportionate to the crime. Section 14 of the JOA gives the executive branch of government the discretion to establish and review such sentence. Section 18(1) of the Constitution, however, guarantees the right of an individual to a fair hearing by an independent and impartial court established by law. This right, along with the constitutional principle of the separation of powers, is violated if a member of the executive is permitted to determine the duration of a sentence. Therefore, sentencing a juvenile to serve an indeterminate sentence (“at Her Majesty’s pleasure”) cannot be permitted.
Read the full case summary.
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State v Mondal
Supreme Court of Bangladesh, High Court Division (criminal) (2006)
Background:
Defendant Mondal was accused of raping and murdering a child when he was 13 years old. Because Mondal was, at the time of his appearance for trial, just over 15 years old, the judge transferred his case away from the juvenile court to another court, which designated itself to act as Juvenile Court under the Children Act 1974 in trying the defendant. Mondal was convicted and sentenced to death by this new tribunal.
Issue and Resolution:
Juvenile justice. Did the designation of another tribunal as the Juvenile Court to try a child under the age of 16, and that Tribunal's actions, comply with the Children Act 1974 (Bangladesh)? The Supreme Court held that the separate Tribunal did not act as a Juvenile Court, and therefore overturned the Defendant's conviction. For the reasons discussed below, the Supreme Court did not send the case back to a lower court for another trial, but instead granted the Defendant his freedom.
Court Reasoning:
The Supreme Court analysed the development of international declarations, rules, covenants and laws from around the world generally and in Bangladesh specifically regarding the prosecution and separate handling of juveniles. It found that the purpose of such laws is the establishment of systems and facilities to educate youths so that they are prevented from coming into conflict with the law, but when a young person's actions conflict with the law, "the aim is to provide a system of justice which is ‘child-friendly’ and which does not leave any psychological scar or stigma on the child, and, on the contrary, prepares him for a fruitful future" (¶ 29-47).
The Children Act 1974 was designed to give effect to Article 28(4) of the Constitution of Bangladesh, which allows for the enactment of legislation to benefit women and children. Under this Act, a person who was under the age of 16 at the time of the alleged commission of an offence must be segregated from adult offenders and afforded every right to which the youth is entitled where proceedings take place in Juvenile Court. The Supreme Court stated that the determination that a court has the authority to try an offender for over a specific offence is less important than the authority another court (in this case, the Juvenile Court) has to try a specific kind of offender, i.e., a juvenile.
In Mondal's case, the Supreme Court observed that nothing in the trial record reflected that the formalities of a juvenile trial had been followed generally and, stated specifically that the sentence of death is a clear reflection that Mondal was not treated as a youth. Further, the Supreme Court noted that Mondal confessed during the investigation of the crime, but at trial pleaded innocent and asserted that he had only confessed because he was being tortured while in police custody. Both physical evidence and the testimony of several witnesses during Mondal's trial, including the Deputy Attorney General, supported this fact. For those reasons, and because there was no evidence other than the confession connecting Mondal to the crime, the Supreme Court overturned Mondal's conviction and released him. Finally, the Supreme Court observed that Bangladesh ratified the Convention on the Rights of the Child in August 1990 and called upon the legislature to enact laws in conformity with it.
Read the full case summary.
THE LAST WORD
"Life in prison without the possibility of parole gives no chance of fulfillment outside prison walls, no chance for reconciliation, no hope. Maturity can lead to that considered reflection which is the foundation for remorse, renewal, and rehabilitation. A young person who knows that he or she has no chance to leave prison before life's end has little incentive to become a responsible individual."
(Graham v. Florida, 560 U.S. at 28 (slip opinion) (2010))
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