Last week, we were privileged to host Mike Bochenek, Director of Law and Policy at Amnesty International, for a series of fascinating discussions.  Mike, who is based in London, flew in to Boston from Los Angeles, where he met with colleagues who work on juvenile justice issues; before that, he was in Strasbourg, attending a strategy meeting with Amnesty’s European lobbyists; before that, in Vienna at a UN Office on Drugs and Crime meeting reviewing the UN Standard Minimum Rules for the Treatment of Prisoners; and before that, he was in Geneva to meet with Human Rights Watch colleagues.  All in the space of two weeks.

He came to HRP last week primarily to talk to Fernando’s “Human Rights Advocacy and the Criminal Justice System” seminar about his work on juvenile justice issues, and the implementation of Amnesty’s Demand Dignity campaign, which frames anti-poverty advocacy as a human rights issue.  But he also—no  surprise here—managed  to squeeze in a career talk on human rights, plus two student interviews.

Below, Zainab Qureshi, LLM ’12, interviews Mike about the amicus brief Amnesty International recently filed in two juvenile life without parole cases joined before the U.S. Supreme Court.

Zainab: What is the status of juvenile life sentencing without parole under international law?

Mike: Well, the amicus brief is arguing there’s an emerging consensus against it. We think the brief has made the argument that the United States is effectively the only country that’s doing it; that there are a few isolated exceptions, but there is the overall conclusion that this is no longer a sentence that is really effectively used anywhere in the world except the United States.  There are some countries that still use detention “at her majesty’s pleasure,” and so on, but limitations have been placed on those kinds of sentences in practice.

Zainab: How is the amicus brief arguing against the constitutionality of juvenile life sentencing without parole, based on what you said about international law?

Mike: It’s an interesting approach, precisely because U.S. courts have not been particularly welcoming to the idea that international treaty obligations, or customary international law, applies directly to issues in the U.S.—with some limited exceptions about things like torture and piracy.  And then there’s the approach in U.S. law that most treaties aren’t self-executing—even though the constitution declares that all treaties are part of the “supreme law of the land”—meaning that Congress has to pass implementing legislation before those treaties can be invoked.  So the brief isn’t addressing the direct applicability of specific treaty obligations.  What it’s saying instead is that the United States has, in fact, a long tradition of looking at international practice to inform the way it interprets the domestic law.  There’s a scholarly approach that calls for the infusion of international law and practice into domestic law.  It’s essentially an infusionist approach that says: when you look in particular at things that relate to fundamental rights, international practice is a relevant consideration.

The brief cites the Declaration of Independence’s invocation of a “decent respect for the opinions of mankind,” and the idea that respect for the opinions of the practice of the world is something that, we’ve argued in the brief, has always been a feature of U.S. legal thinking—of the foundation of the United States, in fact.  And should continue to be with respect to this particular issue.

So I think it’s not a departure from previous practice; there’s nothing about it that raises the flags that you sometimes hear about “we’re giving up U.S. sovereignty to allow foreign authorities to dictate the course of U.S. law”; but it appropriately takes into account what international practice is, as well as domestic practice is, to judge: is this accepted in 2012?  Or, as the brief has concluded, is it an isolated, extreme practice that only a few jurisdictions in the world actually have on the books, and that only one country actually implements?

Zainab: Are there any examples where the Supreme Court has, in fact, accepted arguments relying on international practice?

Mike: It’s historically done so—perhaps to a limited extent in recent decades, but it has looked at to a significant extent with regard to Eighth Amendment jurisprudence.  There’s certainly the recent example of the Court’s decision on the juvenile death penalty [in Roper v. Simmons (2005)], which devotes a section to the arguments advanced by human rights groups in their amicus brief, that there is an international consensus against the death penalty for juvenile offenders.  The court said in the end, essentially, we don’t regard international law as dispositive, but we regard it as a relevant consideration.  (See note 1 below for more explanation.)

Similarly in the opinion on the last case on life without parole for juvenile offenders, [Graham v. Florida (2010)], the Court did the same thing.  It did look at the international legal arguments as a relevant factor in the decision, and it spent some time on the brief submitted by Amnesty International and other human rights organizations.  What the majority said was: we’re not buying the argument that there’s an international legal norm prohibiting life without parole for juvenile offenders that has risen to the level of jus cogens [a peremptory norm of international law that binds all states].  We’re not going to address that argument.  It doesn’t matter, because what we’re doing is just looking at international practice as an indication of where the world is at now—rather than resolving the question of whether it rises to the level of a binding obligation, and what kind of binding obligation.  So they didn’t take on board the entire legal argument, but they certainly used the international authorities to be able to resolve the issue.  (See note 2 below for more explanation.)

And I think going farther back, there’s been a practice at the U.S. Supreme Court of looking in a limited respect to international sources of law to resolve other issues.

Zainab: Given that the U.S. Supreme Court did rule favorably in the previous cases you outlined, do you think there will be a favorable ruling in this case as well?

Mike: It’s always difficult to predict what the outcome will be.  The Court has joined two cases and presented a number of questions, some of which suggest that it would be looking for a narrow basis on which to rule, and some of which suggest that it might be prepared to consider some of the broader arguments that were raised.  It’s significant that the Court has taken on another case on life without parole so soon.  And it’s significant that it’s taken one that clearly would allow it to issue a much broader ruling.  But I can’t really say with any certainty whether it’s going to be a narrow ruling or a broad ruling; I can only express the hope that it’s a favorable ruling.

Zainab: One other question generally about children getting involved in the criminal justice system in the United States.  Why do you think it’s happening, and is it happening at an increasing rate?

Mike: I don’t know that it’s happening at an increasing rate.  We were talking in the human rights class yesterday about the extent to which there was this myth bandied about in the 90s about the “coming storm of ‘super predators.’”  How that was misused to drive public policy.  And the fact is that we haven’t had that storm; the super predators never arrived.  What we do know is that a lot of the reasons we have kids in detention have to do with the overuse of criminal approaches, as opposed to alternatives to the juvenile and adult criminal justice systems.

We discussed yesterday the extent to which schools increasingly become spaces where the approach is to impose criminal sanctions, rather than have a disciplinary or a more informal process for resolving disputes.  So that in extreme cases, kids get arrested for talking in class or talking in assemblies; for pretending they’re shooting each other during a game of cops and robbers—a really heightened, exaggerated sense of what a criminal act is, and then applying that to very young children in a way that is completely out of proportion to all the circumstances.  So certainly there’s a trend to over use the juvenile justice system that’s there.

I think the second factor to consider is the extent to which minority communities in particular are subjected to this pattern—that at every stage, when a kid is in contact with the law, being black or Latino makes it much more likely for that kid to move to the next stage of the process.  So contact with police; arrest by the police; booking by the police;  charging by police or prosecutors, depending on the system; being sent into the juvenile system; the kind of sanction they get; whether the kid gets into the adult system, whether there’s a transfer and a trial as an adult; the length, then, of the sanction; and even, at the extreme case, the punishment of life without parole, or something akin to it, like “four sentences of 30 years, to be served consecutively”; these kinds of things, from the beginning of the process through the end, the disparities are there, and they’re based on race and ethnicity.

Zainab: Other than impact litigation, which you’re pursuing, what other kinds of strategies do you think are effective in countering this trend?

Mike: I think with regard to life without parole, what we could clearly have happen at the state level is a change in legislation to ensure that future cases don’t result in this sentence; California came within one vote in the last legislative session of abolishing life without parole for juvenile offenders, thanks to some very good work by Human Rights Watch, the National Law Center, and an interfaith coalition.  There could also be efforts by the executive branch to review and use if necessary things like the executive power to pardon or commute sentences that are currently being served if there’s no other possibility. There may be other legislative or executive fixes for the existing caseloads.

I think similar thoughtful, comprehensive responses have to be taken overall to address the disparities at every level of the process.  Unless and until those are done, we’re going to continue to see the overuse of incarceration, the increasing criminalization of relatively minor acts, and over-representation of minority kids and adults.

Zainab Qureshi is an LLM student from Pakistan.  After graduation she plans to work in international women’s rights.


Note 1: The majority opinion says, “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty, resting in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime.  See Brief for Human Rights Committee of the Bar of England and Wales et al. as Amici Curiae 10-11.  The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions.”

Note 2: That section of the opinion opens with this paragraph:  “There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over.  This observation does not control our decision.  The judgments of other nations and the international community are not dispositive as to the meaning of the Eighth Amendment.  But ‘ “[t]he climate of international opinion concerning the acceptability of a particular punishment” ‘ is also ‘ “not irrelevant.” ‘ Enmund, 458 U. S., at 796, n. 22.  The Court has looked beyond our Nation’s borders for support for its independent conclusion that a particular punishment is cruel and unusual.   See, e.g.,  Roper, 543 U. S., at 575–578; Atkins,  supra, at 317–318, n. 21; Thompson, 487 U. S., at 830 (plurality opinion); Enmund, supra, at 796–797, n. 22;  Coker,  433 U. S.,  at 596, n. 10 (plurality opinion); Trop, 356 U. S., at 102–103 (plurality opinion).”