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The Constitution
A number of provisions in the Constitution guarantee certain protections in the criminal justice system, including the right to a speedy, public trial by jury and due process of law. Of particular interest is the bar on cruel and unusual punishment contained in the Eighth Amendment:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Notably, the Eighth Amendment has been the basis for successful judicial challenges to the imposition of the death penalty1 and some sentences of life imprisonment without parole for persons under the age of 18 at the time of the offence.2
International human rights treaties
The United States has ratified or acceded to the following international treaties:
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (in 1994)
- International Covenant on Civil and Political Rights (in 1992)3
- International Convention on the Elimination of All Forms of Racial Discrimination (in 1994)
The United States has signed but not ratified the Convention on the Rights of the Child (in 1995), the Convention on the Elimination of All Forms of Discrimination against Women (in 1980), the International Covenant on Economic, Social and Cultural Rights (in 1977), the Convention on the Rights of Persons with Disabilities (in 2009), and the American Convention on Human Rights (in 1977).
The United States has not signed the Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty.
Status of treaties:
Generally, ratified treaties become the "supreme law of the land" under the Supremacy Clause of the United States Constitution. The picture is more complicated, though, as not all treaties supersede national or state legislation.
To establish the status a treaty will have in national law, the United States decides at ratification whether the treaty will be "self-executing" or "not self-executing." Treaties that are deemed "self-executing" are given direct force in United States law and may be enforced by the courts from the date of ratification. Treaties that are deemed "not self-executing" are not directly enforceable in the courts, although it has been argued that “not self-executing” treaties can still be used defensively in legal proceedings.4
To fully implement treaties that are "not self-executing", the federal and state governments must pass legislation to bring their laws into compliance with the treaty provisions. Once this "implementing legislation" takes effect, the courts may then enforce the domestic laws and regulations that mirror the rights and obligations in "not self-executing" treaties.
The United States government has been notoriously slow in implementing human rights treaties, and has to date adopted the view that human rights treaties are "not self-executing." It is likely, then, that if the United States does ratify further human rights treaties, it will be with an understanding that they are "not self-executing.”
1Roper v. Simmons, 543 U.S. 551 (2005).
2Graham v. Florida, 560 U.S. __ (slip opinion) (2010).
3The United States has made a number of reservations and declarations to the ICCPR, including:
Reservation (2) “That the United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age.”;
Reservation (3) “That the United States considers itself bound by article 7 to the extent that `cruel, inhuman or degrading treatment or punishment' means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”; and
Reservation (5) “That the policy and practice of the United States are generally in compliance with and supportive of the Covenant's provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding paragraphs 2 (b) and 3 of article 10 and paragraph 4 of article 14. The United States further reserves to these provisions with respect to States with respect to individuals who volunteer for military service prior to age 18."
4 See Constance de la Vega, Civil Rights During the 1990s: New Treaty Law Could Help Immensely, 65 U. Cin. L. Rev. 423, 460-462 (1997).