Laws of Other Nations
The Center for Law and Global Justice, through its investigation of the past several years, has confirmed that life without the possibility of parole is not a sentence that is given to juvenile offenders in any other country of the world but the United States.
In most countries, such punishment is expressly prohibited by statute or judicial mandate. Most countries distinguish between sentences given to juvenile offenders and those given to adults. In Europe, for example, the maximum sentence for youth is typically less than 25 years for any crime.
Of the remaining countries besides the United States that have laws that could be read to permit the sentencing of child offenders to life without parole, in 8 (Antigua and Barbuda, Argentina, Australia, Cuba, Dominica, Saint Vincent and the Grenadines, the Solomon Islands, and Sri Lanka) there are no known cases where the sentence has been imposed. See p. 990 of C. de la Vega & M. Leighton, "Sentencing our Children to Die in Prison: Global Law and Practice," 42 University of San Francisco Law Review 983 (2008). The article is also available at www.usfca.edu/law/jlwop/law_review. Additionally, 4 countries have been identified as having ambiguous statutory language (Zambia, Sierra Leone, Fiji and Tonga), yet there is no evidence that any of these countries in fact imposes life without parole on juveniles.
In response to challenges that the prohibition of JLWOP is not a norm of customary international law, please review the following country-by-country analysis of each country and their Convention on the Rights of the Child reports: C. de la Vega & M. Leighton, "Response to Amicus Briefs of Sixteen Members of Congress, the State of Florida, and Solidarity Center with Respect to International Law before the U.S. Supreme Court — Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621)." This report establishes that there is no evidence that any person who committed the offense under 18 is serving a JLWOP sentence outside of the United States.
2012 Updated Practices of Other Countries
The United States has approximately 2, 500 individuals serving life without parole for crimes that they committed when they were younger than 18 years of age. In contrast, the rest of the world has zero persons serving this sentence. In finding that the United States Constitution prohibits as cruel and unusual punishment a life without parole sentence for juveniles (“JLWOP”) in a non-homicide case, the US Supreme Court stated that “the overwhelming weight of international opinion against” JLWOP “provide[s] respected and significant confirmation for our own conclusions." (Graham v. Florida, supra, 560 U.S. , 130 S. Ct. 2011, 2033.) International opinion is to prohibit this sentencing practice for any crime.
Since 2007 to the present, the University of San Francisco Law School’s Center for Law & Global Justice (“Center) has conducted international research on the use of the JLWOP sentence, and has found no cases of juvenile offenders serving the sentence outside of the United States. (C. de la Vega & M. Leighton, "Sentencing our Children to Die in Prison: Global Law and Practice”, 42 U.S.F. L. Rev. 983, 989 (2008), available online at http://www.usfca.edu/law/jlwop/law_review/.) This updated study of the 2007 report of the same name clarified that Tanzania, South Africa and Israel do not allow JLWOP. Id. at pp. 996-1004. This research was originally conducted in 2007, updated in 2008, and cited by the U.S. Supreme Court in 2010 in support of its conclusion that JLWOP is unconstitutional for nonhomicide crimes. (Graham, supra. 130 S.Ct. at p. 2034.)
Opponents to juvenile justice reform continue to erroneously state that JLWOP sentences are practiced in other countries without any evidence to support their claims. As the below chart illustrates, while 10 countries other than the United States have laws that may permit sentencing of child offenders to LWOP, these countries either have no known persons serving JLWOP sentences, or allow parole or define “life” as a term of years.
Countries With Laws That Would Allow JLWOP, Although Not Done In Practice
Antigua & Barbuda – an indeterminate life sentence is possible for murder or treason. No known individuals are serving this sentence.
See: Laws of Antigua and Barbuda, Ch. 229, art. 3; CRC/C/28?Add.22, 9 December 2003, para. 286.
Argentina – 5 juveniles serving life with possibility of parole after 20 years. No known individuals are serving JLWOP.
See: Penal Code art. 14 and Ley 22,278 (1980).
Australia – JLWOP is technically allowed, but no known individuals are serving JLWOP.
See: Gregor Urbas, The Age of Criminal Responsibility, The Australian Institute of Criminology (Nov. 2000); Judge J.M. Robertson.
Belize – life imprisonment means a sentence of 18 to 20 years without provision for parole.
See: Indictable Procedures Act, Ch. 96, sec. 146(2); CRC/C/65/Add.29, July 13, 2004.
Brunei – life sentences are possible with mandatory parole review once per year. No known individuals are serving JLWOP.
See: Children and Young Persons Order of 2006, secs. 238, 45(1), (3), (5).
Cuba – LWOP may be possible, but there are no known cases.
See: Penal Code art. 30.1
Dominica – LWOP is possible, but there is no indication of any individuals serving JLWOP.
See: CRC/C/15/Add.228, 30 June 2004, sec. 46.
Saint Vincent & the Grenadines – JLWOP is possible, but there are no known JLWOP cases.
See: CRC/C/28/Add.18, 10 October 2001, para. 128.
The Solomon Islands – JLWOP may be possible, but there are no known JLWOP cases.
See: Juvenile Offenders Act, arts. 12, 13 and 16.
Sri Lanka – LWOP may be possible, but efforts are on rehabilitation. There are no known JLWOP cases.
See: Penal Code No. 2 of 1883 as amended, sec. 53.
Countries with Ambiguous Language Surrounding JLWOP
Fiji- "The court shall sentence such person to be detained during the Governor-General's pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Governor-General may direct, and whilst so detained shall be deemed to be in legal custody."
Fijian Penal Code sec. 25(1)
Sierra Leone- "The juvenile shall be confined to a chose place as may be directed by the president and for a stated period of time until a juvenile's reformation and transformation is guaranteed."
Sierra Leone Criminal Procedures Act sec. 216
Tonga- "Every person who attempts to commit murder shall be liable to imprisonment for life or any less period." Tongan courts have looked to human rights instruments regarding the validity of punishments.
Tongan Penal Code sec. 91(2)
Zambia- "The court shall sentence him to be detained during the President's pleasure; and when so sentenced he shall be liable to be detained in sch place and under such conditions as the President may direct."
Penal Code Act of Zambia sec. 25(2)
"The presiding Judge shall forward to the President a copy of the notes of evidence taken at the trial, with a report in writing signed by him containing such recommendations or observations on the case as he may think fit to make."
Penal Code Act of Zambia sec. 25(3)
Countries that Recently Clarified Their Law and Practice to Prohibit JLWOP Sentences
The legal analysis in this section restates information found in the Center for Law and Justice's 2008 report contained in the law review article be Connie de la Vega and Michelle Leighton, "Sentencing Children to Die in Prison: Global Law and Practice." See article for key references and citations.
Several years ago, human rights groups reported that Tanzania and South Africa had juvenile offenders serving LWOP sentences, and that Burkina Faso and Kenya, while having no children serving LWOP sentences, had laws that appeared to allow for the punishment.1 In the past year, all of these countries have clarified their practice, law, or both to prohibit LWOP sentences for juveniles.
Tanzania was previously a concern because the Sexual Offences Special Provisions Act (“SOSPA”) allowed JLWOP. However, Tanzania passed legislation in November 2007 that provides discretion to the courts to determine that all sentenced under SOSPA, with respect to juveniles, is in compliance with the CRC. Tanzania has therefore ceased the practice of sentencing juveniles to life without the possibility of parole. See, ‘The Written Laws (Miscellaneous Amendments)(No.2) Act,’ Part V (Amendment of the Penal Code) 2007; see also, "Sentencing our Children to Die in Prison: Global Law and Practice”, supra, 42 U.S.F. L. Rev. at pp. 996-999.
South Africa clarified that it has no children serving JLWOP sentences (see, Id. at p. 999). It has changed its laws to prohibit LWOP sentences for child offenders. See Child Justice Act, Chapter 10 (2008), available at http://childjustice.org.za/downloads/A75-2008.pdf.
Burkina Faso and Kenya
Both Burkina Faso and Kenya had been listed in earlier reports as countries where there was a possibility that a child offender could receive an LWOP sentence. However, in March 2007, during and after the U.N. Human Rights Council session, both countries clarified that they do not allow for such sentences and provided written explanation to Director of Human Right Programs Michelle Leighton and Professor Connie de la Vega. Both countries assert that they now apply international standards prohibiting JLWOP sentencing, particularly as now recognized by the Committee on the Rights of the Child in its General Comment on Juvenile Justice, published in February 2007.
In Burkina Faso, there is no law providing for child offenders younger than 16 to be given life sentences. After age 16, the laws could possibly be read to try the child as an adult for certain crimes, making the child potentially eligible for a life sentence. However, this interpretation has never been confirmed by a judge in the country, and officials have stated that doing so now would contravene Burkina Faso's treaty obligations under the CRC, which apply directly in domestic law.
Kenya has specifically clarified its compliance with the CRC in a report submitted to the Committee on the Rights of the Child in 2006. It ratified a bill which outlaws LWOP sentences for all children under age 18.
Israel has confirmed that it does not have any people serving JLWOP sentences and parole review is allowed for juvenile life sentences. see also, "Sentencing our Children to Die in Prison: Global Law and Practice”, supra, 42 U.S.F. L. Rev. at pp. 1002-1004.
In England and Wales, juveniles who commit the most serious or heinous of crimes cannot be given life without parole sentences; rather, the severest penalty is detention at Her Majesty's pleasure ("Powers of Criminal Courts (Sentencing) Act 2000," § 90 (Eng.)). To date, the longest sentence, or tariff as it is known, imposed on a juvenile for any crime or combination of crimes committed when under the age of 18 is 30 years.
The sentence of detention at HMP is the statutorily required sentence for murder convictions in the Crown Court where the offender was at least 10, but under the age of 18, at the time of the crime. ("Powers of Criminal Courts (Sentencing) Act 2000," § 90). When passing a sentence on a juvenile, including a sentence of detention at HMP, the judge effectively must impose a tariff that is roughly half the term that an adult would be given in the same circumstance.
All prisoners in England and Wales are automatically released at the halfway point of a determinate sentence and then serve the balance on license, a form of parole, unless a threat to society. Once the term period has elapsed, the offender should be released if the Parole Board is satisfied that it is safe to do so ("Crime (Sentences) Act 1997," § 28). The determination of the tariff or minimum term in relation to mandatory life sentences, for example, requires the trial judge to specify in the order that the early release provisions referred to in the Crime (Sentences) Act 1997 (paras. 5-8) will apply after a minimum term of detention. There are two parts to a life sentence: the detention period and the license period. The minimum detention period for punitive detention is set by the trial judge and is commonly referred to as the "tariff period," but may also be referred to as the "minimum term" in the "Criminal Justice Act 2003." After the individual has been detained for the period specified in the minimum term, they become eligible to have their release reviewed by the Parole Board. If the Parole Board determines that sufficient progress in rehabilitation during the minimum period has not been made, then the individual will remain detained, with review taking place about once a year. If the board finds that they are no longer a threat to society, they can recommend release, and the offender will be released on "license," under parole review for the remainder of their natural life.
For juveniles convicted of murder, the judge starts at a presumptive period of 12 years detention, and then adjusts that term based on aggravating or mitigating factors, such as premeditation or evidence of intent to injure but not kill ("Criminal Justice Act 2003" (c. 44) Schedule 21, paras. 7-12). Schedule 21, para. 9 states: "Detailed consideration of aggravating or mitigating factors may result in a minimum term of any length (whatever the starting point), or in the making of a whole life order." However, Schedule 21, para. 1 makes clear that "whole life order" means an order made under §269(4)and §269(4) does not allow for imposition of LWOP on a juvenile. Significantly, as indicated above, the longest tariff imposed on a person who committed any crime when under age 18 years is 30 years.
The laws of England and Wales legally and effectively prohibit life without parole sentences for juvenile offenders. While it is not clear that such a sentence was ever used, it clearly has been prohibited for the better part of the past 75 years. The prohibition emerged historically in recognition of the inherent instability and emotional imbalance of persons under age 18, which made such sentences cruel and unusual. In recognition of the special relationship between English jurisprudence and this country, and the direct roots of the 8th Amendment in English law, this Court should follow suit and recognize that the 8th Amendment prohibits imposition of life without parole sentences for juvenile offenders.
History of the Law
Historically, juveniles were treated differently from adults in terms of sentencing in England and Wales. The United Kingdom abolished the juvenile death penalty for children under age 16 in 1908 ("Children Act of 1908," 8 Edw. 7, c. 67 (Eng.)), but death sentences for offenders under 18 had been rarely imposed since the early 18th century because of sympathy for the young. The Children Act 1908 was "a notable piece of legislation, enshrining as it did in almost every section the principle that a young offender shall receive different treatment from an adult" ("Report of the Departmental Committee on the Treatment of Young Offenders, 1927" Cmd. 2831). While parliament could have replaced the death penalty with life imprisonment, it adopted instead the sentence of detention at Her Majesty's pleasure (HMP), a "less severe form of sentence" for juveniles (R v. Secretary of State for the Home Department, ex parte Venables (1998) A.C. 407 HL at 521) (hereinafter "Venables"). In particular, "(t)here is built into the sentence a measure of leniency in view of the age of the offender at the time of the offence" (Venables, A.C. 407 HL at 532).
In 1933, the Children and Young Person's Act 1933 (Eng.) abolished the death penalty for all persons under age 21. Parliament's Select Committee on Capital Punishment noted that the instability of young people made them less culpable: "(T)he emotional balance of young people under the age of 21 is unstable, and this instability reduces their responsibility, and that the instability of adolescents, which in some cases may even amount to a form of mental disorder is very often a factor in the crime" ("Report of the Select Committee on Capital Punishment (1930)," paras. 189, 193).
These statutory developments formed part of an "elaborate legislative scheme which reflected a general policy of treating young offenders quite differently from older ones" "A. W. B. Simpson, Report" prepared for submission to the European Court of Human Rights in Prem Singh v. United Kingdom, unreported, (February 21, 1996), cited with approval in Venables (1998) A.C. 407 HL at 481). The statutory developments were intended to impose an obligation upon the courts "to have regard not only to retribution, deterrence and prevention of risk but also to the welfare of the child offender himself" (Venables at 49899). In other words, historically the legal system in England and Wales has recognized that young people who commit murder or other serious offenses should be treated with greater leniency. "It is clear from the authorities which exist that, when dealing with a very young person, the court has to have regard to the length of sentence and the perception of the young of that length. By that we mean that a sentence which may be appropriate for someone older may be crushing for someone who is very young." (R v. W (2003) 1 Cr. App. R. (S) 95, 504).
1See, e.g., Human Rights Advocates, "Special Report on Human Rights Violations in Sentencing: Imprisoning Children for Life without Possibility of Release" (2007). This report was submitted to the 4th Session, Human Rights Council in March 2007, as part of the work completed by University of San Francisco law students Nicole Skibola, Patricia Fullinwider, and Angela Fitzsimons. Written Statement submitted by Human Rights Advocates, Inc. (Juvenile Sentencing), A/HRC/4/NGO/3 (2007).