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March 19, 2009

Are any and all LWOP sentences inconsistent with international human rights law?

Over at The Volokh Conspiracy, Eugene Volokh in this post notes this New Zealand Herald article and wonders and worries about the prospect of international human rights law being used to bar sentencing murderers to life without the possibility parole.  Here are snippets from the kiwi sentencing piece prompting Eugenes concerns:

Foreign Affairs officials are warning the Government that its hardline sentencing and non-parole policy risk damaging New Zealand's international reputation.  They say National's "no parole for the worst murderers" policy and the proposed "three strikes and you're out" law could breach international obligations on torture and civil rights.  The Ministry of Foreign Affairs and Trade says such breaches would affect New Zealand's ability to influence other countries.

The ministry's advice, obtained by the Herald under the Official Information Act, says passing the laws "would pose reputational risks to New Zealand by resulting in international criticism".

The ministry has told the Government that no parole for the worst murderers — a National election policy - would enable "indefinite detention without the possibility of release", and would probably violate two human rights conventions monitored by the United Nations.

Act's "three strikes" policy, which imposes a life sentence with a minimum non-parole period of 25 years on the third "strike" offence, "may result in disproportionate sentences that could also breach the human rights obligations assumed by New Zealand (and most other countries)"....

David Garrett, the Act MP who designed "three strikes", said he wanted to know what countries the Foreign Affairs officials believed would be offended.  "They shoot people in China for much less and we have just concluded a free trade agreement with them.  And we can't be offside with the Yanks because half their states have three strikes."

Though I am not a fan of rigid LWOP sentencing laws or too-broad three-strikes laws, I laregely share Eugene's view that domestic sentencing decision-makers should, as a general matter, "pretty strongly resist any attempt to have our laws on these subjects be governed by 'human rights conventions' that chiefly represent the views of elite lawyers in Western countries rather than of American voters, constitution-makers, or even judges (who at least have been appointed and confirmed by American elected officials and could in time be replaced by American elected officials)."

March 19, 2009 at 05:31 PM | Permalink


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Doug. Your insular view is noted.

Posted by: peter | Mar 20, 2009 2:59:11 AM

Peter, your disrespect for national sovereignty is likewise noted.

Posted by: Ben | Mar 20, 2009 10:50:19 AM

I never gave much credence to the slippery slope theory but to allow the vaunted "international community" to dictate a sovereignty's internal criminal justice system is very troubling.

Posted by: mjs | Mar 20, 2009 11:35:25 AM

It is not a question of deferring to, or allowing the International community to dictate. But an on-going and open consideration of the views of others, from who you may learn, is the basis of all rational debate. Why else does the US take part in any international forum at all? The quality of a justice system is as much a valid topic of debate as any other - as the US acknowledges when it criticizes others for human rights abuses etc. It is perfectly valid for the international community to attempt to influence, and for the US to accept international standards and trends. There is nothing new in that.

Posted by: peter | Mar 20, 2009 1:36:15 PM

Peter, re-read Prof. Berman's original post. You'll find that his concerns were U.S. policies potentially "be[ing] governed by 'human rights conventions'," not the mere influence of said convention. Where the proper balance may be struck is a matter people can disagree upon but the difference is obvious. You've pivoted.

Posted by: Ben | Mar 20, 2009 3:55:01 PM

Ben - I think not. A convention is a commonly accepted, standardized, set of principles or rules - an evolved acceptance of decency and moral acceptability (on a given topic) agreed by a significant international body. If everyone thought like the good professor, the US would never join a single convention unless a referendum was held on each occasion throughout the US. Come to think of it, the US seldom does in fact sign up fully to any international convention - unless it has instigated and presided over every aspect of it. That is an arrogance which harms both the international community and the US. If the US cannot win the argument on the international stage amongst "friends", then there is good reason to question the quality of their argument. Isolationism may protect the status quo, but only at the expense of respect and moral authority in a world that in reality is today so interdependent in much more than economics.

Posted by: peter | Mar 20, 2009 5:29:21 PM

I think Benjamin Franklin, in his speech prior to signing the Constitution, expressed what I am trying to say, rather well:
Mr. President

"I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others. Most men indeed as well as most sects in Religion, think themselves in possession of all truth, and that wherever others differ from them it is so far error. Steele a Protestant in a Dedication tells the Pope, that the only difference between our Churches in their opinions of the certainty of their doctrines is, the Church of Rome is infallible and the Church of England is never in the wrong. But though many private persons think almost as highly of their own infallibility as of that of their sect, few express it so naturally as a certain french lady, who in a dispute with her sister, said "I don't know how it happens, Sister but I meet with no body but myself, that's always in the right — Il n'y a que moi qui a toujours raison."

Posted by: peter | Mar 20, 2009 5:46:47 PM

Peter, you're just playing semantics. You're using "convention" in a manner different than Prof. Berman did in his initial post - so much is clear based on context as well as his qualifying language, "that chiefly represent the views of elite lawyers in Western countries rather than of American voters, constitution-makers, or even judges (who at least have been appointed and confirmed by American elected officials and could in time be replaced by American elected officials)."

This is obviously not the same thing as "commonly accepted, standardized, set of principles or rules - an evolved acceptance of decency and moral acceptability (on a given topic) agreed by a significant international body."

Commonly accepted by whom? He preemptively addressed your use of the term.

We've now returned to the point where you're showing your disrespect for national sovereignty. I'll have none of it. Is it arrogant to not accept international consensus? I don't care. International consensus being different does not necessarily mean that it has the stronger argument. Even if it did, we have the right to do things differently - whether others judge us for doing so is irrelevant to that inquiry.

Posted by: Ben | Mar 20, 2009 6:56:55 PM

I'm sure Doug appreciates your defense, but I rather think the term you pull - "that chiefly represent the views of elite lawyers in western countries" was a little tongue-in-cheek don't you? The reality is that the US, in its input on International forums, relies every bit as much on "elite" or expert legal and other advice and skill. These "western countries" are no less democratic than the US. Indeed they may be more so since politics and political choice is often less polarized. As for "national sovereignty" in this context - no-one is denying the right of the US to choose its own path - only decrying the closure of minds to the influence of reason and judgment of others, whose experience and wisdom should be respected, especially when broadly accepted within the international community of equals. The US champions international accord and international institutions yet refuses to commit itself to conventions that emerge. And what pique when Iran or Venezuela or Russia or China appear to follow suite. We are getting a long way from the narrow context that gave rise to this debate, but Human Rights accord on an international scale was sponsored by the US amongst others. Cherry picking conventions to satisfy a misconceived notion of national sovereignty is a self-defeating policy. As Pres. Bush and his misguided team found to their cost over the use of torture and covert rendition.

Posted by: peter | Mar 21, 2009 3:36:45 AM

Peter, your use of the term "influence" is disingenuous as it is tantamount to "adopt." When it comes to internal policy making, the opinions of other countries in the international community, or the international community writ large, are simply not the opinions of "equals." The purpose behind international institutions, and any resulting international consensus, is to affect the relationships between nation-states, not to determine all of the internal decision-making of the peoples of those nation-states. Surely, such institutions and any consensus can and sometimes should be used to influence sovereign decision-making, particularly where such decision-making affects the international community, i.e., Iran, or contains clear human rights abuses, i.e., China.

However, it is not "cherry picking conventions" to not accept every matter of international consensus that develops, particularly when the "human rights" tag can be slapped onto any issue the vaunted international community decides it wants to affect. LWOP for petty larceny might be a human rights issue where international consensus can inform our judgments (although, for the most part, we have other protections short of international accord). But LWOP for the most serious offenses is far more complicated and international opinion deserves far less, perhaps zero, deference. Such criminal punishments are properly determined by the people who are affected by the criminal acts, not by some overarching international entity or group. It is not an all or nothing proposition.

It began with the death penalty and the next target is LWOP. It's curious that this sliding scale only slides in one direction. It's highly questionable whether those in favor of bowing to international consensus would be so deferential should that scale ever begin to slide in the opposite direction. I think not. Rather, this construction is a vehicle, a means to an end, not an end in itself.

Posted by: Ben | Mar 21, 2009 11:00:56 AM

Ben - your premise about the nature and purpose of international conventions is quite simply wrong. Example:
Convention on the Rights of the Child

United States
US ratification of the Convention on the Rights of the Child

The United States government played an active role in the drafting of the Convention and signed it on 16 February 1995, but has not ratified it. Opposition to the Convention is in part due to what are seen as potential conflicts with the constitution and because of opposition by some political and religious conservatives. The two reasons often given for the US Senate not ratifying the Convention were that the State of Texas allows children to be given the death penalty, which the Convention would not allow, and that it would undermine parents' rights. The Heritage Foundation sees the conflict as an issue of national control over domestic policy. President Barack Obama has described the failure to ratify the Convention as 'embarrassing' and has promised to review this.

Source Wikipedia.org

There are plenty of other examples.

Posted by: peter | Mar 21, 2009 2:43:15 PM

"Isolationism may protect the status quo". Err, say wat? Isolationism just is. It neither protects or defends the status quo. People may believe that it bends one way or the other but that is only a reflection of the basis already present in their own minds, nothing that adheres to the concept of isolationism as such.

A group is wise if it follows the wisest among them. If it fails to do that, it is as foolish as the most foolish among them.

Posted by: Daniel | Mar 21, 2009 3:18:36 PM

Daniel - not sure how your comments take us forward on this. My use of the term isolationism was a reflection on my earlier reference to insularity. Perhaps I should have kept to that for clarity. As for the saying, I would add that a wise man is only as wise as his present understanding and experience. A truly wise man will never accept that description of himself, for his understanding and experience is ongoing through life. Wise followers therefore will constantly test his wisdom against that of others. Isn't that the basis of democracy?

Posted by: peter | Mar 21, 2009 7:27:33 PM

Peter, what? I only used the term "convention" once in my last post and it was in quoting you. Nevertheless, conventions only have the thrust of law once they have been ratified or adopted in a multilateral fashion as is clear from the example you cited. Moreover, international law or the law of nations, including conventions, is inapplicable where it is overborne by U.S. statutory, treaty, case law or the Constitution. Perhaps I was slightly inartful but there is a difference between international conventions and international consensus, the latter of which was primary focus of my last comment. Finally, I redirect you to my Mar 20, 2009 6:56:55 PM comment for an explanation between competing positive and normative uses of the term "convention."

Posted by: Ben | Mar 21, 2009 9:01:07 PM

The debate began with Doug's shared agreement with Eugene Volokh's view - "(I) pretty strongly resist any attempt to have our laws on these subjects be governed by 'human rights conventions' that chiefly represent the views of elite lawyers in Western countries rather than of American voters, constitution-makers, or even judges (who at least have been appointed and confirmed by American elected officials and could in time be replaced by American elected officials)."
I have dismissed this view on the evidence
a) that attempts to influence national consciousness and practice on the basis of an international consensus are common
b) that the US is an active participant in such efforts
c) that "to influence" is not the same as "to force"
d) that the hurdles the US places on ratification of international consensus (often Conventions) is not so much an example of democracy but of anarchy
e) to decry international influence and to exclude it from internal decision-making processes is irrational, intolerably insular, and ultimately harmful to the development of forward-thinking social and national interest.
You will doubtless put up the usual barriers to such critical arguments, and retreat into the nationalist shell - but it is not in your self-interest to do so.

Posted by: peter | Mar 22, 2009 4:06:43 AM

Peter, assuming but not admitting that most of what you say is true and accurate, it is neither inconsistent or irrational for the U.S. to carve out specific areas where international conventions or international consensus are not followed. There is a lot to be said for encouraging international agreement and/or international cooperation, depending on the circumstances, while also retaining our sovereign powers. Again, this is not an all or nothing proposition, as you seem to be treating such matters (point "e)") such that to you, "to influence" collapses into "to force," regardless of how you attempt to nuance your way through the hole in the needle. Lastly, your final broad generalization aside, one would be hard-pressed to see how LWOP for the most serious offenses is contrary to anyone's self-interest - international consensus, humans rights conventions, etc., be damned. Afterall, they are and should not be the final arbiter of our internal criminal justice policies.

Posted by: Ben | Mar 23, 2009 8:59:16 AM

Ben - and others - please read the article and references at the web-page via my name.

Nothing justifies incarceration without the possibility of parole - nor the shocking conditions which prevail in many US penal institutions.

Posted by: peter | Mar 26, 2009 5:28:20 AM

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