The Juvenile Death Penalty and International Law

Abstract

The United States is almost alone among nations in permitting the execution of juvenile offenders. Citing this fact, along with a variety of legal materials, litigants and scholars are increasingly claiming that the United States' use of the juvenile death penalty violates international law. This Article examines the validity of this claim, from the perspective of both the international legal system and the U.S. legal system. Based on a detailed examination of the United States' interaction with treaty regimes and international institutions since the late 1940s, the Article concludes that the international law arguments against the juvenile death penalty have significant weaknesses. As the Article documents, for a number of reasons the United States has consistently declined to consent to treaty provisions restricting the juvenile death penalty, and it has consistently declared the human rights treaties that contain such restrictions to be non-self-executing. In addition, since at least the mid-1980s, the United States has persistently objected to - and thereby legally opted out of - any customary international law restriction on the juvenile death penalty. The Article also argues that, even if these international law arguments were more persuasive, they would not provide a basis for relief in U.S. courts. For separation of powers reasons, courts properly will decline to apply international law to override the considered choices of the President and Senate in their ratification of treaties. In addition, because of concerns relating to both separation of powers and federalism, courts properly will decline to apply customary international law to override state criminal punishment, especially when (as is the case here) the political branches have expressly declined to do so by treaty. This potential gap between evolving international law norms and U.S. judicial enforcement is less disturbing than some commentators appear to assume - it simply means that the juvenile death penalty issue, like other difficult issues of social policy in the United States, must be resolved through U.S. democratic and constitutional processes. Although important on its own terms, the juvenile death penalty issue may also have broader implications for the relationship between U.S. law and international human rights law. Litigants and scholars have met with at least modest success in attempting to have international human rights law incorporated into the U.S. legal system. This success, however, has primarily come in the context of civil lawsuits seeking damages for human rights abuses committed in foreign countries. Increasingly, litigants and scholars are seeking to build on this success and persuade U.S. courts to apply international human rights law internally as a basis for overriding domestic laws and practices. The juvenile death penalty has become a central focus of this effort, and the way in which the international law challenges are resolved in this context may have a significant impact on the viability of other attempts to domesticate international human rights law.