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U.S. Sentencing Laws Out of Step with the Rest of the World

University of San Francisco School of Law’s Center for Law and Global Justice Releases Report on Comparative and Human Rights Law on Sentencing.

May 21, 2012

Click here to read the report "Cruel and Unusual: U.S. Sentencing Practices in a Global Context."

(San Francisco) – Sentencing laws in the United States are at odds with the country’s human rights obligations to direct its prisons system towards rehabilitation, the University of San Francisco School of Law’s Center for Law and Global Justice said today in a report examining the sentencing laws of all the countries around the world. U.S. laws increasing the likelihood and length of prison sentences have created a prisons system out of step with the rest of the world. They help to explain why, despite a declining crime rate, the U.S. prison population has grown six-fold since 1980 to become the world’s largest per capita.

The report, “Cruel and Unusual: U.S. Sentencing Practices in a Global Context,” compiles comparative research on sentencing laws around the globe and documents how sentencing laws distinguish the United States from other countries. Researchers found that the United States is in the minority of countries using several sentencing practices, such as life without parole, consecutive sentences, juvenile life without parole, juvenile transfer to adult courts, and successive prosecution of the same defendant by the state and federal government. Conversely, sentencing practices promulgated under international law and used around the world, such as setting 12 as the minimum age of criminal liability and retroactive application of sentencing laws that benefit offenders, are not systematically applied in the United States. Mandatory minimum sentences for crimes and “three strikes” laws are used in the U.S. more widely than elsewhere in the world.

“It has long been understood that that U.S. sentences are much longer than those used in many other countries around the world. Our study comprehensively compiles the available statutory evidence for that assertion,” said Professor Connie de la Vega, Professor and Academic Director of International Programs at the University of San Francisco School of Law, and one of the authors of the report.

In 1992, the United States ratified the International Covenant on Civil and Political Rights (ICCPR), an international human rights treaty which in Article 10 states that countries have the obligation to make prison systems provide “treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” However, sentencing practices in the United States denying prisoners the chance for review for rehabilitation contradict this article. “By ratifying this treaty, the U.S. government has undertaken to take measures and make its laws compatible with it,” said Amanda Solter, Project Director of the Human Rights in Criminal Sentencing Project and one of the authors of the report.

The same article of the ICCPR also says, “Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.” However, the United States allows juvenile offenders to be tried as adults and incarcerated alongside adult prisoners. “The United States engages in harsh juvenile justice practices while most of the world does not,” said Dana Marie Isaac, Project Director of the Project to End Juvenile Life Without Parole and one of the authors of the report.

U.S. Supreme Court decisions have cited international legal precedents and practices when deciding whether punishments are prohibited by the Constitution’s ban on “cruel and unusual” punishments. Starting in Trop v. Dulles in 1958 up to most recently in Graham v. Florida in 2010, the Court has taken into account international standards to gauge whether sentences are disproportionate to their crimes. In a 2007 report and law review article (www.usfca.edu/law/docs/jlwop-lawreview), the Center for Law and Global Justice concluded that the United States is the only country in the world to allow children to be handed life without parole sentences, research which was cited by the Court in Graham v. Florida when it deemed juvenile life without parole sentences for crimes other than homicide to be unconstitutional.

“The excessively punitive nature of criminal sentencing in the United States is at odds with its stated international human rights law obligations,” said Soo-Ryun Kwon, Senior Researcher at the Human Rights in Criminal Sentencing Project and one of the authors of the report. “These practices contradict not only these obligations but also what the vast majority of countries in the world have deemed to be just punishment for crimes.”

The full report is available at: www.usfca.edu/law/docs/criminalsentencing

For more information, please contact the University of San Francisco School of Law’s Center for Law and Global Justice:
Amanda T. Solter, atsolter@usfca.edu

Fact Sheet for “Cruel and Unusual: U.S. Sentencing Practices in a Global Context”

The United States uses sentencing practices that are rarely used around the world.

  • The United States is among only 20% of countries around the world having life without parole (LWOP) sentences. LWOP sentences can never be reviewed and condemn the convict to die in prison.
    • The United States allows for LWOP sentences for a single, non-violent offense such as drug possession, whereas it is often restricted to multiple, violent crimes in other countries.
    • The United States is one of only nine countries which have both the death penalty and LWOP, along with China, Comoros, Cuba, Israel, Kazakhstan, Lesotho, Nigeria, and Zimbabwe.
    • There are currently over 41,000 prisoners serving LWOP sentences in the United States, compared to 59 in Australia, 41 in England, and 37 in the Netherlands. On a per capita basis, the United States LWOP population is 51 times Australia’s, 173 times England’s, and 59 times the Netherlands’.
  • The United States is among only 21% of countries where judges have no discretion when sentencing recidivists and must issue mandatory increased penalties.
  • The United States is among only 21% of countries around the world to issue uncapped consecutive sentences when there are multiple offenses from the same act.
  • The U.S. mandatory minimum sentence for first-degree murder under federal law, life without parole, is the harshest compared to Western European countries, Australia, New Zealand, and Canada, which set minimums from five years up to life with the possibility of parole.
  • The United States, Canada, and Micronesia are the only federalist countries known to researchers allowing successive prosecution of the same defendant by federal and state governments for the same crime. The U.S. Department of Justice as a matter of policy recommends restraint for federal prosecutors when pursuing prosecution of individuals after state judgments. However, because this is a policy rather than a legal limitation on prosecutors, it lacks enforceability and therefore does little to remove ambiguity as to whether a defendant will endure successive prosecutions.
  • Under international human rights law, if legislators pass a new law to lighten sentences, offenders have a right to benefit from it retroactively. Though 67% of countries have codified that right, the United States has not.

The United States treats children in the criminal justice system in ways they are not in the rest of the world.

  • The committee overseeing implementation of the Convention on the Rights of the Child (CRC), an international human rights treaty committing states to uphold the rights of children, recommends 12 to be the age at which a child can be held responsible for crimes. All countries of the world except the United States, Somalia, and South Sudan are states parties to the CRC. No state in the United States currently meets this suggested age. In contrast, the majority of countries (64%) set the minimum age at 12 or higher.
  • The vast majority of countries (84%) account for the age of the offender at trial, leaving the United States in the minority of countries (16%) trying and sentencing children as adults.
  • The United States is the only country in the world to use juvenile life without parole (JLWOP) sentences, with an estimated 2,594 juveniles offenders serving such sentences. The CRC expressly forbids JLWOP, and the International Covenant on Civil and Political Rights has also been interpreted as prohibiting it. The committee overseeing states’ compliance with the Convention Against Torture, as well as the committee for the Convention on the Elimination of Racial Discrimination, interpreted JLWOP as being incompatible with their respective treaties. Meanwhile, 65% of countries limit maximum sentences to 20 years or less or reduce the degree of the crime for juveniles.

Based on the above, the Center for Law and Global Justice recommends:

  • Take into consideration international treaties, international legal standards, and comparative legal benchmarks in sentencing legislation or challenges to disproportionate sentences.
  • Explore ways to shorten sentences while ensuring public safety by analyzing sentencing and parole policies that have been driving prison population growth by considering reduction of practices such as life without parole, recidivism statutes, consecutive sentencing, and mandatory minimums.
  • Adopt or increase minimum ages of criminal responsibility to at least 12 years of age; end the use of life without parole sentences for juveniles; and during prosecution and sentencing of children, ensure protections recognizing their youth are in place.