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Keller on Interntional Human Rights & the Juvenile Death Penalty in U.S. Courts

By Lawrence Solum

Linda M. Keller (Thomas Jefferson School of Law) has posted Using International Human Rights Law in U.S. Courts: Lessons From the Campaign against the Juvenile Death Penalty (WHAT IS RIGHT FOR CHILDREN? THE COMPETING PARADIGMS OF RELIGION AND HUMAN RIGHTS, Ashgate, 2009) on SSRN. Here is the abstract:

This paper constitutes Chapter 5 of the book "What Is Right For Children?: The Competing Paradigms of Religion and Human Rights" (Ashgate, 2009), edited by Martha Albertson Fineman and Karen Worthington (who also hold the copyright; this chapter is posted on SSRN by permission).

In this chapter, Linda M. Keller examines the intersection of international human rights law and the United States Supreme Court?s juvenile death penalty jurisprudence. In 1988, when the Supreme Court first banned capital punishment for those under the age of sixteen at the time of the crime, international human rights treaty law was relegated to a mere footnote (Thompson v. Oklahoma, 1988). International instruments, however, played a key role in the more recent 2005 decision finding that execution for crimes committed under the age of eighteen violates the Eighth Amendment, which provides that ?[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted? (Roper v. Simmons, 2005). The majority opinion in Roper cited several international human rights treaties to support its conclusion, including the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.

Drawing on Supreme Court opinions and amicus briefs, Keller explores how advocates against the juvenile death penalty moved international human rights standards from the periphery to the center of the debate. The chapter shows how a majority of justices of the Supreme Court is receptive to international and foreign law as a tool to confirm interpretations of constitutional provisions, particularly the Eighth Amendment. It examines the relevant treaties as well as impermissible reservations to treaties, customary international law, and jus cogens norms. It contends that the Roper majority legitimately used international law in the decision. In illustrating how the Court could have adopted a far more radical interpretation of international law, this chapter demonstrates the potential for broader reliance on international law in the courts. Finally, the chapter suggests ways to use international human rights to advocate for children in the United States. The success of the campaign against the juvenile death penalty can be used as a model for advocacy on other issues, such as reforming the juvenile justice system and enhancing economic rights for children.

Full post as published by Legal Theory Blog on December 15, 2009 (boomark / email).