Kennedy Cites International Law in Graham v. Florida, but it does not “Control Our Decision”

May 17th, 2010

In Graham v. Florida, Justice Kennedy continues the trend of looking to international law to support the decision, and to define the contours of cruel and unusual punishment.

There is support for our conclusion in the fact that, incontinuing to impose life without parole sentences on juveniles who did not commit homicide, the United Statesadheres to a sentencing practice rejected the world over.This observation does not control our decision. The judg-ments of other nations and the international community are not dispositive as to the meaning of the EighthAmendment. But “‘[t]he climate of international opinion concerning the acceptability of a particular punishment’” is also “‘not irrelevant.’” Enmund, 458 U. S., at 796, n. 22. The Court has looked beyond our Nation’s borders for support for its independent conclusion that a particular punishment is cruel and unusual. See, e.g., Roper, 543 U. S., at 575–578; Atkins, supra, at 317–318, n. 21; Thompson, 487 U. S., at 830 (plurality opinion); Enmund, supra, at 796–797, n. 22; Coker, 433 U. S., at 596, n. 10 (plurality opinion); Trop, 356 U. S., at 102–103 (plurality opinion). Today we continue that longstanding practice in notingthe global consensus against the sentencing practice inquestion.
And like Justice Breyer, who cited the practices of the Israeli Supreme Court with respect to closing the doors of the One First Street, Justice Kenendy checks the practices of the Land of Milk and Honey:

A recent study concluded that only 11 nations authorize life without parole for juvenile offenders under any circumstances; and only 2 of them, the United States and Israel, ever impose the punishment in practice. An up-dated version of the study concluded that Israel’s “lawsallow for parole review of juvenile offenders serving life terms,” but expressed reservations about how that parole review is implemented. De la Vega & Leighton, Sentenc-ing Our Children to Die in Prison: Global Law and Prac-tice, 42 U. S. F. L. Rev. 983, 1002–1003 (2008). But even if Israel is counted as allowing life without parole for juve-nile offenders, that nation does not appear to impose that sentence for nonhomicide crimes; all of the seven Israeli prisoners whom commentators have identified as serving life sentences for juvenile crimes were convicted of homi-cide or attempted homicide.

Kennedy also notes that the United States, along with Somalia, are the only countries not to join the UN Convention on the Rights of the Child.

Thus, as petitioner contends and respondent does notcontest, 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 em-phasize, that Article 37(a) of the United Nations Conven-tion on the Rights of the Child, Nov. 20, 1989, 1577 U. N. T. S. 3 (entered into force Sept. 2, 1990), ratified byevery nation except the United States and Somalia, pro-hibits the imposition of “life imprisonment without possi-bility of release . . . for offences committed by personsbelow eighteen years of age.”

Kennedy sums it up here:

The State’s amici stress that no international legalagreement that is binding on the United States prohibits life without parole for juvenile offenders and thus urge usto ignore the international consensus. See Brief for Soli-darity Center for Law and Justice et al. as Amici Curiae 14–16; Brief for Sixteen Members of United States House of Representatives as Amici Curiae 40–43. These argu-ments miss the mark. The question before us is not whether international law prohibits the United Statesfrom imposing the sentence at issue in this case. The question is whether that punishment is cruel and unusual. In that inquiry, “the overwhelming weight of international opinion against” life without parole for nonhomicide of-fenses committed by juveniles “provide[s] respected and significant confirmation for our own conclusions.” Roper, supra, at 578.

The debate between petitioner’s and respondent’s amici over whether there is a binding jus cogens norm against this sentencing practice is likewise of no import. See Brief for Amnesty International 10–23; Brief for Sixteen Mem-bers of United States House of Representatives 4–40. The Court has treated the laws and practices of other nationsand international agreements as relevant to the Eighth Amendment not because those norms are binding or con-trolling but because the judgment of the world’s nationsthat a particular sentencing practice is inconsistent with basic principles of decency demonstrates that the Court’s rationale has respected reasoning to support it.

Thomas addresses this line of reasoning in a single footnote in dissent.

11I confine to a footnote the Court’s discussion of foreign laws andsentencing practices because past opinions explain at length why such factors are irrelevant to the meaning of our Constitution or the Court’s discernment of any longstanding tradition in this Nation. See Atkins, 536 U. S., at 324–325 (Rehnquist, C. J., dissenting). Here, two points suffice. First, despite the Court’s attempt to count the actual number ofjuvenile nonhomicide offenders serving life-without-parole sentences inother nations (a task even more challenging than counting them withinour borders), the laws of other countries permit juvenile life-without-parole sentences, see Child Rights Information, Network, C. de la Vega, M. Montesano, & A. Solter, Human Rights Advocates, Statement on Juvenile Sentencing to Human Rights Council, 10th Sess. (Nov. 3,2009) (“Eleven countries have laws with the potential to permit thesentencing of child offenders to life without the possibility of release”), online at (asvisited May 14, 2010, and available in Clerk of Court’s case file)). Second, present legislation notwithstanding, democracies around the world remain free to adopt life-without-parole sentences for juvenileoffenders tomorrow if they see fit. Starting today, ours can count itself among the few in which judicial decree prevents voters from making that choice.