« Administering Roper | Main | Judicial perspectives on Booker »

March 2, 2005

Using international law in a post-Booker world

The discussion of foreign laws and practices in Roper (basics here) has already become a subject of much blog-dialogue as evidenced here and here and here.  But today I received an interesting note from a self-described "retired Australian lawyer/law professor" who suggests that international law ought to be coming to bear in the post-Booker world.  Here are some choice selections from his amusing and insightful missive:

Re: Booker, Fanfan et al, I have been fascinated by the legal sophistry which permeates the U.S. sentencing system.  It is amazing that such a developed country could get itself into the mess that it has....

One issue that I have found most puzzling is the ex post facto/due process problem and, in particular, whether one result of Booker is that, for offences committed prior to 12 January 2005, a person may possibly receive a sentence which is higher than that which he/she would have received under the mandatory sentencing range on facts found by the jury or admitted by the defendant (the system which operated before 12 January 2005).

A question for you: Given that the US is a signatory to the Universal Declaration of Human Rights, why doesn't article 11(2) of the Declaration prohibit the imposition of a higher penalty?  Why don't US trial lawyers/law professors not raise this issue as a starting point? The UN Declaration of Human Rights has been referred to in well over 100 cases in U.S. courts. I have copied and bolded the relevant paragraph....

Universal Declaration of Human Rights

Article 11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Consider also that the American Convention on Human Rights, signed by the US on 1 June 1977, similarly provides in Article 9: "A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed.  If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom."

I suspect that the US judicial response is that these two Declarations do not legally bind the United States Government in the sense of creating obligations enforceable in US courts, but they certainly do establish the relevant and applicable rule of international law which is part of US federal domestic law.

March 2, 2005 at 05:28 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Using international law in a post-Booker world:


The short and easy answer regarding the applicability of the Declaration of Human Rights is that it is equal only to a statute in U.S. law, and no more. Therefore, a subsequent, specific statute (like the sentencing guidelines)will trump a prior, more general treaty. Because the constitution trumps statutory and treaty rules, this argument will likely be based on the Ex Post Facto Clause.

Obviously, the Declaration of Human Rights may be cited, and there may be a few judges who would like to bolster its applicability to U.S. criminal law. But the vast majority of judges will balk, or worse.

Posted by: Mark | Mar 2, 2005 6:00:19 PM

While the above is true, the sentencing guidelines do not purports to increase a sentence beyond what was applicable at the time of the offence. So in and of themselves they are not inconsistent with the declarations. However, and application of the guidelines which does increase the sentence beyond what the defendant was subject to at the time of the offence, offends the treaties/ declarations, and this behaviour is as such contra US common law.

Posted by: NC | Mar 2, 2005 6:20:38 PM

CORRECTED FOR TYPOS AND SUPPLEMENTED - SINCERE APOLOGIES: While the above is true, the sentencing guidelines do not purport to increase a sentence beyond what was applicable at the time of the offence. So in and of themselves, they are not inconsistent with the declarations. However, an application of the guidelines which DOES increase the sentence beyond what the defendant was subject to at the time of the offence, clearly offends the treaties/ declarations and this behaviour is as such contra US common law. This would indicate that the relevant maximum must remain what the defendant was subject to at the time of the offense and any judicial discretion should be with regard to what sentence to impose between the statutory minimum and the relevant maximum, determined only by reference to what the defendant would have been subject to at the time of the commission of the offense. Considering the substantive decision in Booker and the line of Apprendi cases that were not in any respect overruled, this must be determined according to the guidelines based only on facts proven to a jury or admitted by the defendant.

Posted by: NC | Mar 2, 2005 6:25:58 PM

Just as the ex post facto clause(s) of the U.S. Constitution bar legislative increases in the possible sentence after the commission of an offense, so the Due Process Clause(s) of the Fifth and Fourteenth Amendments bar the application of any judicial decision that would have the same effect. This was decided in Marks v US (S.Ct. 1977) and explained further in Rogers v Tennessee (S.Ct. 2002). This point has been included in all the Booker-related training materials I have seen (including those I prepared) and is being argued by defense attorneys nationally. The ICHR corroborates but adds nothing to those fundamental protections of the U.S. Constitution as long construed by the Supreme Court.

Posted by: Peter G | Mar 2, 2005 10:12:26 PM

The United States Senate has found that the International Covenant on Civil and Political Rights is not a "self executing document" and cannot have the force of law without express adoption.

Although we are a signatory it is not the law in the United States.

I once asked the same question and that is what my research showed. There is some legislative history on this. My memory is that the judiciary committee (or whichever has jurisdiction over a treaty) held a hearing.

Here is an excerpt from http://www.asil.org/insights/insigh10.htm which states what I am talking about:

"Provisions in treaties and other international agreements are given effect as law in domestic courts of the United States only if they are “self-executing” or if they have been implemented by an act (such as an act of Congress) having the effect of federal law. Courts in this country have been reluctant to find such provisions self-executing, but on several occasions they have found them so--sometimes simply by giving direct effect to the provisions without expressly saying that they are self-executing. There are varying formulations as to what tends to make a treaty provision self-executing or non-self-executing, but within constitutional constraints (such as the requirement that appropriations of money originate in the House of Representatives) the primary consideration is the intent--or lack thereof--that the provision become effective as judicially-enforceable domestic law without implementing legislation. For the most part, the more specific the provision is and the more it reads like an act of Congress, the more likely it is to be treated as self-executing. A provision in an international agreement may be self-executing in U. S. law even though it would not be so in the law of the other party or parties to the agreement. Moreover, some provisions in an agreement might be self-executing while others in the same agreement are not.
All treaties are the law of the land, but only a self-executing treaty would prevail in a domestic court over a prior, inconsistent act of Congress. A non-self-executing treaty could not supersede a prior inconsistent act of Congress in a U. S. court. A non-self-executing treaty nevertheless would be the supreme law of the land in the sense that--as long as the treaty is consistent with the Bill of Rights--the President could not constitutionally ignore or contravene it."

Posted by: Michael R. Hadley, Esq. | Mar 3, 2005 11:44:42 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB