BRIEF FOR RESPONDENT GRAHAM AS TO QUESTIONS ONE AND TWO AND THE RELEVANCE OF INTERNATIONAL LAW IN THE INTERPRETATION OF THE EIGHTH AMENDMENT’S BAN ON “CRUEL AND UNUSUAL” PUNISHMENT
By Mahmoud Fadli
(Due: April 12, 2010)
IN THE SUPREME COURT OF THE UNITED STATES
“It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”
– Justice Anthony Kennedy
Brief Statement of Facts
At age 16, petitioner Terrance Graham was allegedly an accomplice to an armed burglary and attempted robbery of a restaurant, the only offenses for which he has ever been convicted. Terrance allegedly plotted to “rob a Jacksonville barbeque restaurant” with two other juveniles. As a result, the prosecution elected to use its unfettered discretion and charge Terrance as an adult for this offense. This was done despite the fact that, under Florida law, the only mandatory cases in which a juvenile can be prosecuted as an adult were if they were between 16 and 17, and actually possessed a “firearm or destructive device” when committing “certain offenses.” It is worth noting that the offenses for which Terrance was prosecuted as an adult did not fall into this category.
Terrance, at the time, plead guilty to said offenses arising out of this single incident. However, as a result of a parole violation, Terrance was sentenced to the statutory maximum penalty, life imprisonment without the possibility of parole, for the crime he committed at 16.
The questions presented herein are: (1) whether or not the United States, in determining whether or not sentencing a minor to life without the possibility of parole for a non-homicide offense is in violation of the Eighth Amendment, should prohibit life-without-parole sentences for juvenile offenders as a result of an obligation under International Law, and (2) whether or not the Supreme Court should construe the Eighth Amendment so as to conform with international norms.
The use of international law in the domestic interpretation of law here in the United States is not uncommon, nor is it new, to the history of the United States. The United States is a member of the international community and has signed a variety of treaties that, due to concepts of jus cogens and customary international law, have become binding upon all nations. As a result, and given the history of the United States and its attitudes towards international law in interpreting domestic legislation, it would not be beyond reason nor beyond the power of the Judiciary to consider themes of international jurisprudence in the interpretation of domestic law.
I. The Historical Affect of International Jurisprudence on the Conceptualization of the United States and its Founding Fathers and Documents Mandates that International Law be Relevant to the Interpretation of the Eighth Amendment
The United States Declaration of independence states that “[w]hen, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, . . . a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” Based on this principle, the Supreme Court of the United States in Sosa v. Alvarez-Machain stated that the United States has, “for two centuries… affirmed that the domestic law of the United States recognizes the law of nations.” Moreover, Justice Blackmun urged courts to afford the “decent respect to the opinions of mankind,” which, he argued, were intended by the founders. Justice Blackmun explained that “the early architects of our Nation understood that the customs of nations – the global opinion of mankind – would be binding upon the newly forged union.” When acknowledging examples of notable figures in American history, such as Thomas Jefferson and John Adams, having a keen appreciation and regard for international law and its affect on domestic jurisprudence, it becomes clear that both the founding fathers of the Untied States and the legal traditions therein accepted and appreciated the effect of international jurisprudence in domestic law.
Given this foundation, Article VI § 2 of the United States constitution unequivocally states that
“[t]his constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.”
This necessarily means that any and all treaties made and signed by the Untied States, and the effects thereof, are to be considered binding law upon the country’s jurisprudence. Pertinent to this analysis is the Eighth Amendment to the Constitution, which states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” upon citizens of the United States. The pertinent language, “cruel and unusual,” is noted to be part of the “Anglo-American tradition of Criminal Justice,” and that the phrase was “taken directly from the English Declaration of Rights of 1688, and the principle [itself was derived from] the Magna Carta.”
Given this strong foundation, the “Amendment’s meaning must be drawn from the ‘evolving standards of decency that mark the progress of a maturing society.’” Viewing “the evolving standards of decency” in an isolated and “domestic environment” would mean ignoring the rich history and considerations that the Founders of this nation considered “essential” in their quest to have the United States join the ranks of the community of nations.
II. As Punishing Minors With Sentences of Life-Without-Possibility-of-Parole Is Contrary To International Law, And Since the Foreign Relations Act § 102 Recognizes International Law, Such A Practice Should Not Be Allowed in Eighth Amendment Jurisprudence
The United States “considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties.” Under Article 53 of the Vienna Convention on the Law of Treaties, a jus cogens norm of law is a “norm accepted and recognized b the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Moreover, the Restatement (Third) of the Foreign Relations Law of the United States takes the same view recognizes that a jus cogens norm recognized by the Vienna Convention n the Law of Treaties must be “accepted and recognized by the international community of States as a whole.”
This concept of jus cogens is premised on the “supremacy of certain international law norms” that regular state practice – rules that were originally derived from “treaties and/or state practice, [originally] comprising customary international law.” The Restatement of the Foreign Relations Law of the United States further emphasizes that the law is followed as a result of a “general and consistent practice of states… from a sense of legal obligation.” Jus cogens, however, has greater force – it is peremptory, and has a much “higher status” than general, customary international law. The difference between jus cogens and customary international law is that a jus cogens law cannot be derogated, and must be followed by all states, “regardless of consent, express or implied.” Such rules “prevail over and invalidate international agreements and other rules of international law in conflict with them.”
American courts have recognized that jus cogens may inform U.S. jurisprudence, with “basic norms of international law” being able to “restrain our government in the same way that the Constitution restrains it.” Moreover, the norm is said to be established when it is accepted and recognized by “a large majority of states, even if over dissent by a very small number of states.” In addition, the norm must fulfill three basic requirements, including having a prior status of “general or customary international law,” gaining acceptance by “a large majority of states as non-derogable,” and having “not been modified by a new norm of the same status.” Thus, in order to determine whether or not sentencing minors to life without the possibility of parole is a violation of a jus cogens norm expressly recognized by § 102 of the Foreign Relations Act, a look at the practice of other nations to establish whether or not such a principle is a norm is necessary.
A. The Prohibition of Sentencing Minors to Life-Without-Possibility-of-Parole Is Internationally Recognized As an Obligation, And Thus a Jus Cogens Principle which the United States Must Abide By
The Human Rights Committee of the United nations, when looking to articles 7 and 24 of the International covenant on Civil and Political Rights, stated that it believed that “sentencing children to [a] life sentence without parole is of itself not in compliance” with the covenant. The United Nations declared in a 2009 Human Rights Council resolution that states would be urged to end the practice of imposing capital and life without possibility of parole sentences to “persons [who were] under 18 years of age” at the time of their alleged offenses. In the years preceding this resolution, there was a push “emphasizing the need for the global community to comply with the principle that depriving juveniles of their liberty should only be a measure of last resort and for the shortest appropriate time.”
This principle has been accepted by every single nation except the United States, with the United States being the only nation that imposes life imprisonment without the possibility of parole towards against juveniles. As a result, the United States is now “responsible for 100% of all child offenders serving [life without the possibility of parole sentences].” Moreover, all nations have “reconfirmed their expectation that every country comply with the prohibition,” with treaty bodies clarifying that the “sentence is prohibited by [international] law, even for the United States…” Moreover, a “myriad of United Nations resolutions have [been] passed by consensus or, upon vote, by every country represented except the United States.”
Given that the United States is the only country on earth to implement such a policy, it can be concluded that the ban on life imprisonment without possibility of parole for juvenile offenders who were below the age of 18 at the time of the crime is a jus cogens principle. As such, the United States is obligated to abide by this principle, and such a principle should be pertinent to the Eighth Amendment analysis banning the implementation of “cruel and unusual” punishment.
B. Even if the United States refuses to be bound by Jus Cogens Principles, Other American Jurisdictions Do Not Apply the Life-Without-Possibility-of-Parole Sentence, With International Law Confirming This View
This Supreme Court in Roper stated that the “opinion of the world community, while not controlling [upon] our outcome, does provide respected and significant confirmation for our own conclusions.” In other words, international law and practice can have significant importance when analyzing the current norms of justice and fair punishments in the Untied States.
In this case, Terrance’s conduct – “an armed burglary with an assault or battery and without any prior convictions” – would subject him to a life-without-parole-sentence, under such circumstances, in only two States: Florida and South Carolina. However, the state of South Carolina has not actually imprisoned any juveniles for such a period, with only Florida being the only state to do so. Moreover, it is important to note that in 15 other jurisdictions, “Graham’s … conduct would subject him to a life-without-parole sentence if he had a prior conviction.” In 14 of those 15 jurisdictions, at least two prior convictions would be required for the sentence to apply. Of even greater significance is the fact that “there are no known juvenile offenders, outside of Florida, severing a life-without parole sentence for any type of burglary offense.”
In addition, within the United States, there are only 106 juvenile, non-homicide offenders serving a life without parole sentence – approximately 70% of these juveniles (77) are imprisoned in the state of Florida. The remaining offenders (29) outside of Florida were “imprisoned for either sexual battery or kidnapping offenses,” in contrast to the juveniles in Florida who were imprisoned for a “wide variety of crimes.” Further exemplifying the rarity of such a sentence, statistics have shown that “very few States have actually imposed life-without-parole sentences on juvenile, non-homicide offenders,” with all known non-homicide juvenile offenders in the nation concentrated in only “five states besides Florida,” with Florida holding the vast majority.
It is also significant to note that 36 States do “not impose life-without-parole sentences on any juvenile non-homicide offenders.” And while some States permit it, only a “handful of jurisdictions, in practice, actually impose such a sentence on juvenile offenders for non-homicide offenses,” with Florida imposing it most often. The majority of States “generally reserve the severe punishment of life without parole for juvenile offenders who commit the most serious offenses:” homicides. This is buttressed by the fact that 93% of all juvenile offenders sentenced to life without parole in the nation “were convicted of a homicide.”
Given that, in practice, sentencing juvenile offenders to life without parole for non-homicide crimes is rare, if not disfavored in American jurisprudence, it would follow that the court would be able to conclude that such a practice is in violation of the Eighth Amendment. In that regard, looking to in the international community would be of assistance in confirming the practice of the States. The international community has condemned the practice, both through treaty, numerous resolutions, and jus cogens principles of international law. This is in direct confirmation of the practice of the majority of jurisdictions in the United States which reserve life-without possibility of parole sentences imposed upon juveniles for only the worst crimes, homicides. As the Court in Roper acknowledged that international law can be used to confirm our own views and practices, this Court can and should look to international law for a comparison. If viewed through the lens of international law and practice, the world’s condemnation of life imprisonment without possibility of parole for non-homicide offenses committed by juveniles is in harmony with the practice of disfavoring the sentence among the States.
For the aforementioned reasons, the United States Supreme Court should take into consideration International Law the Eighth Amendment analysis and construe the Eighth Amendment to be in line with international obligations that the United States has willfully accepted through its Restatement (Third) of the Foreign Relations Law. In the alternative, the Court should look to International Law and custom for confirmation of the views and practices within the United States which show that jurisdictions therein disfavor life imprisonment without the possibility of parole for juveniles convicted of non-homicide offenses.
We respectfully submit our conclusions to the Court.