Law School Faculty Blog

Briefing International Standards in U.S. Litigation


Since 1986, I have been briefing the international and treaty standards that apply to U.S. cases through amicus curiae briefs filed on behalf of Human Rights Advocates. Despite the fact that the U.S. Constitution provides that treaties are the supreme law of the land, courts’ receptivity to the use of the international standards and treaties has ebbed and flowed. However, even during the ebbs, it is important that the courts be made aware of that body of law. Indeed, sometimes it can be a catalyst for bringing the U.S. in line with more humane practices, as has been shown by two extreme sentences that the U.S. has used for juvenile offenders despite the fact that the vast majority of countries do not use them: the death penalty and life without parole (JLWOP). The almost worldwide prohibition of these two sentences played a role in the U.S. Supreme Court holding the death penalty unconstitutional for juvenile offenders in Roper v. Simmons, 543 U.S. 551 (2005) and in beginning the limiting of life without parole sentences in Graham v. Florida, 560 U.S. 48 (2010). A recent report discusses various types of advocacy where the international standards have proven to be useful: Challenging Juvenile Life Without Parole: How Has Human Rights Made A Difference?

While the Court did not refer to the international standards in the more recent case of Miller v. Alabama, 576 U.S. __ (2012), most likely the result of the backlash from some groups against using international law, it is still important that courts be aware of those standards in addressing U.S. law so they can place U.S. and state law in context. Recent cases where these standards have been raised in amicus curiae briefs include:

People v. Davis, 2014Ill. S. Ct. Case No. 115595 (2014): Amici curiae urged the Illinois Supreme Court to hold juvenile life sentences unconstitutional. The brief was filed on behalf of eight organizations and addressed the international and treaty standards relevant to this issue. The Illinois Supreme Court ruled that the U.S. Supreme Court in Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012) is retroactive and that “Miller mandates a sentencing range broader than that provided by statute for minors convicted of first degree murder who could otherwise receive only natural life imprisonment.” Thus, Mr. Davis’ sentence was remanded for a new sentencing hearing where all sentences could be considered by the Court.

People v. Moffett (S206771) and People v. Gutierrez (S206365): Amici curiae raised international and treaty law in urging the California Supreme Court to hold that juvenile without parole sentences are unconstitutional. The briefs were filed on behalf of five organizations involved in international law and juvenile justice issues. The California Supreme Court ruled on May 5, 2014, that the State of California’s presumption in favor of a sentence of life without parole for 16 and 17 year olds violates the Eighth Amendment of the U.S. Constitution under Miller. The Court went on to rule that Millerrequires a trial court to consider the “distinctive attributes of youth” in considering the sentence. The Court also ruled that the recently passed Penal Code § 1170(d) that allows juveniles to be resentenced after 15 years does not prevent the violation since the differences between children and adults should be addressed before a court imposes a sentence of life without parole.

While the rulings were victories for all the defendants, neither Supreme Court refers to international standards in placing limits on the use of JLWOP. Nonetheless, it is important that the courts be able to put their rulings in the context of international law, which specifically prohibits the sentence, and the practice of nations, where no other country imposes this sentence on juveniles.

Amicus curiae briefs can also be filed when petitions are filed before international bodies, as is evidenced in a recent case:

Hill v. USA: Amicus curiae brief filed before the Inter-American Commission on Human Rights (IACHR) in support of a petition filed by a number of juvenile offenders serving life without parole sentences in Michigan. The brief covers international and treaty standards that prohibit the sentence and was filed on behalf of human rights organizations, university centers, and a professor. The IACHR held a hearing on the case in March 2014 and a decision is pending.

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