The Juvenile Death Penalty and International Law
Bradley, Curtis A., Duke Law Journal
The United States is almost alone among nations in permitting the execution of juvenile offenders. Citing this fact, along with a variety of legal and historical 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 the international law arguments against the juvenile death penalty 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.
TABLE OF CONTENTS Introduction I. The United States and the Juvenile Death Penalty II. Treaty Claims A. International Covenant on Civil and Political Rights B. Validity of the Juvenile Death Penalty Reservation 1. Object and Purpose 2. Other Challenges 3. Severability C. Other Treaties III. Customary International Law A. Attractions of the Customary International Law Argument B. Persistent Objector Rule 1. Timing Question 2. 1940s-1970s 3. Late 1970s-Present 4. Summary C. Reliance on the Concept of Jus Cogens IV. Enforcement in U.S. Courts A. Enforcing the ICCPR B. Non-Self-Execution C. Object and Purpose of Unratified Treaties D. Status of Customary International Law E. Charming Betsy Canon Conclusion
There is substantial and growing international pressure on the United States to end or curtail its use of the death penalty. Most European nations have abolished the death penalty, and the European Union has become increasingly vocal in its criticism of the U.S. practice. For the last several years, the United Nations (UN) Commission on Human Rights has adopted resolutions calling upon nations to impose a moratorium on the death penalty. Many nations decline to extradite criminal suspects to the United States if the suspects will face the death penalty. And amicus curiae filings by international organizations in U.S. death penalty cases are now becoming routine.
Those who favor restriction of the U.S. death penalty are hopeful that this international pressure will have an effect on U.S. practice. In this respect, they have been encouraged by a number of recent developments within the United States that may suggest that the time is ripe for change. …