The Supreme Court has just ruled 5-to-4 that states cannot mandate life sentences without the possibility of parole for murderers under age 18, no matter how horrible the murder, in Miller v. Alabama. The cases before it involved 14-year-old murderers from Alabama and Arkansas, but the Court, casting off any pretense of judicial restraint, declared unconstitutional mandatory life without parole not only for people 14 or younger, but even teenagers who are old enough to drive and cast ballots in state primary elections, like the “17 1/2-year-old who sets off a bomb in a crowded mall.” It also declared in a footnote that states could not make life without parole “the mandatory punishment” even for “aggravated forms of murder” by juveniles. The Supreme Court’s decision is plainly erroneous. It violates the intent of the framers of the Eighth Amendment, and unfairly disregards basic Eighth Amendment values such as proportionality. The decision divided the Justices along ideological lines, with liberal justices joining the majority opinion authored by Justice Elena Kagan.
On the bright side, the Court did not rely on “international norms” or “customary international law” the way some American and foreign courts have done in striking down protections for victims of crime, or creating new reasons to sue individuals or businesses. On the other hand, the Court pointedly left open the issue of whether life without parole could ever be imposed on a teenager (lawyers arguing that it cannot cite a purported international consensus against life without parole; many countries do not permit life without parole even for adult mass murderers). As the Court put it, because its ruling striking down mandatory life sentences for juveniles “is sufficient to decide these cases, we do not consider Jackson’s and Miller’s alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger. But given all we have said . . . about children’s diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” The possible future reliance on fuzzy international norms to decide that issue is troubling, since, as I explain further below, such “international norms” often mandate restrictions on individual liberty rather than on state power.
In Graham v. Florida (2010), the Supreme Court, in a 5-to-4 vote citing “international opinion,” outlawed life imprisonment without parole for juveniles who commit rape, torture, and other non-homicide crimes, ruling that such sentences violate the U.S. Constitution’s Eighth Amendment. In Roper v. Simmons (2005), the Supreme Court struck down the death penalty for juveniles in all cases, including homicide cases, citing the “overwhelming weight of international opinion against the juvenile death penalty,” although its ruling cited the existence, as a reasonable alternative to the death penalty, of the “punishment of life imprisonment without the possibility of parole,” which was “itself a severe sanction.”
Left-wing lawyers would like to ban life sentences even for adults who repeatedly torture other people to death. Earlier, New Zealand was pressured to end life without parole for adults who commit “the worst” murders, based on a supposed rule of “customary international law” against life imprisonment without parole. Citing Spanish law and supposed international human-rights norms, Spain now refuses to extradite terrorists who plot mass murder to the United States unless the U.S. agrees not to seek life imprisonment without parole.
In relying on “international opinion” to decide that case, the Supreme Court set a dangerous precedent for civil liberties, since foreign legal systems and international lawyers are often hostile to free speech, religious freedom, and other basic civil liberties, and the right of homeowners to defend themselves against criminals by wielding a knife or gun in self-defense. The U.N. Human Rights Council says there is no human right to self-defense, and that, quite the contrary, international human rights norms require “very severe gun control.”
The libertarian Cato Institute, which frequently files amicus briefs in the Supreme Court seeking to promote civil liberties and privacy rights, joined an amicus brief in the Graham case asking the court not to rely on “international norms,” since doing so would “undermine the democratic process and rule of law, casting considerable uncertainty over many U.S. laws.” The Competitive Enterprise Institute also joined that brief.
Eighth Amendment challenges to life sentences are based on supposedly “evolving” notions of decency that are not in fact shared by most contemporary Americans, who continue to support both life sentences and the death penalty in public opinion polls; and on “international” norms against life imprisonment that conflict with American practices and values. The naive idea that an evolving society should forgive and parole violent criminals who have supposedly “rehabilitated” themselves (even though many “model inmates” have gone on to commit horrible crimes after being released on parole) ignores the wisdom of the great Athenian lawgiver Solon, who observed that true justice will not be achieved until those who have not been victimized by crime are just as indignant as those who were victimized. As Midrash sagely notes, “He who is kind to the cruel is cruel to the kind.”
Courts should not rely on “international opinion” to decide cases, since it is vague and manipulable. So-called international law is applied selectively by lawyers and judges, who cite real or imagined “international law” to push the ideological goals they support, while ignoring actual international court rulings they don’t like, like court rulings in England, Australia, and Europe barring punitive damages or limiting damages under the Warsaw Convention, to which the U.S. is also a party (as in Olympic Airways v. Husain).
Left-wing lawyers take vague international treaties and interpret them as mandating their ideological wish lists, like restricting criticism of Islam and minority religions as “hate speech,” banning Mother’s Day as sexist, and mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring “redistribution of wealth,” “affirmative action,” “gender studies” classes, government-sponsored “access to rapid and easy abortion,” and “the application of quotas and numerical goals.” Never mind that most countries don’t even have affirmative action.
Among left-wing lawyers, opposition to life sentences is based partly on snob appeal and contempt for ordinary people. By citing “evolving” notions of decency, and “international opinion,” against life sentences, they get to feel morally superior to their fellow citizens, and get to view themselves as being more cosmopolitan and highly evolved than the average person.