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35. U.S. response to Inter-American Commission on Human Rights on juvenile life sentencing (April 2007)

RESPONSE OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA TO THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REGARDING JUVENILES SENTENCED TO LIFE WITHOUT PAROLE

The Government of the United States appreciates the opportunity to provide the following response to the Inter-American Commission on Human Rights’ (“Commission”) request of June 13, 2006, regarding the sentencing of juveniles to life imprisonment without parole in the United States (Petition No. P-161-06; “the petition”). For the reasons described below, the United States respectfully requests that the Commission declare this petition inadmissible with respect to alleged violations of the American Declaration of Rights and Duties of Man (“American Declaration”).[1]

I. Factual Background

Petitioners Henry Hill, Barbara Hernandez, Kevin Boyd, Damien Todd, and Patrick McLemore as well as Petitioners Matthew Bentley, Maurice Black, Larketa Collier, Cornelius Copeland, John Espie, Maurice Ferrell, Mark Gonzolez, Chavez Hall, Lamar Haywood, Lonnell Haywood, Christopher Hynes, Ryan Kendrick, Cedric King, Eric Latimer, Juan Nunez, Sharon Patterson, Gregory Petty, Tyrone Reyes, Kevin Robinson, T.J. Tremble, Marlon Walker, Oliver Webb, Elliott Whittington, Ahmad Williams, Johnny Williams, Leon Williams, and Shytour Williams have brought this petition against the United States of America and the state of Michigan. Petitioners have each been convicted of serious crimes committed while they were under 18 years of age.

- Petitioner Hill was convicted in 1982 of aiding and abetting a murder and possession of a firearm in the commission of a felony. Petition at 12; Petition for Writ of Habeas Corpus at 4, Hill v. Lafler, Case 2:04-cv-71278-JCO-SDP (E.D. Mich., 2004).

- Petitioner Hernandez was convicted in 1991 of multiple murder counts and armed robbery. Petition at 15; Petition for Writ of Habeas Corpus at 2, Hernandez v. Stovall, Case 2:06-cv-13604-VAR-MKM (E.D. Mich., 2006).

- Petitioner Boyd was convicted in 1996 of first-degree murder and conspiracy to commit first degree murder. Petition at 16; Petition for Writ of Habeas Corpus at 1, Boyd v. Jones, Case 2:04-cv-74462-AC-WC (E.D. Mich., 2004).

- Petitioner Todd was convicted in 1986 of first-degree murder, assault with intent to murder, and possession of firearm during commission of felony. Petition at 19; People v. Todd, 465 N.W.2d 380 (1990).

- Petitioner McLemore was convicted in 2000 of first degree felony murder, armed robbery, first degree home invasion, and carjacking. Petition at 20.

- Petitioners Bentley, Black, Collier, Copeland, Espie, Ferrell, Gonzalez, Hall, Lamar Haywood, Lonnell Haywood, Hynes, Kendrick, King, Latimer, Nunez, Patterson, Petty, Reyes, Robinson, Tremble, Walker, Webb, Whittington, A. Williams, J. Williams, L. Williams, and S. Williams were convicted and sentenced for crimes committed after 1996. The petition does not provide the United States government any specific information related to these Petitioners.

Each Petitioner has been sentenced to life imprisonment without the opportunity for parole for his or her crimes. All Petitioners are citizens of the United States currently incarcerated in adult prisons throughout the state of Michigan in the United States.

On behalf of itself and the named Petitioners, the American Civil Liberties Union (ACLU) and ACLU of Michigan filed this petition on June 13, 2006. Petitioners allege violations of their rights under Articles I, VII, XVIII, XXIV, XXV, and XXVI of the America Declaration. The essence of Petitioners’ claim is that the sentencing of juveniles without the opportunity for parole violates the American Declaration, the International Covenant on Civil and Political Rights, various other international legal instruments, and customary international law.

II. Failure to Exhaust Domestic Remedies

Article 31 of the Commission Rules of Procedure requires Petitioners to pursue and exhaust domestic remedies in accordance with generally recognized principles of international law. The Petitioners have not exhausted their domestic remedies as required by Article 31, nor do any of the exceptions to this rule apply. Accordingly, the petition should be dismissed.

A. Petitioners Hill, Hernandez, Boyd, Todd, and McLemore have not exhausted domestic remedies because they have not challenged their sentences in domestic courts

The claims of Petitioners Hill, Hernandez, Boyd, Todd, and McLemore are inadmissible because they have failed to exhaust remedies within the United States judicial system. Indeed Petitioners readily admit that they have not even pursued remedies in U.S. courts for the violations they allege. Petition at 41-48. Instead, Petitioners argue that “any attempts to fully exhaust their domestic remedies would have been futile,” as there is no “reasonable prospect of success” at the domestic level. Id. at 42. Accordingly, Petitioners argue that exhaustion of domestic remedies is not required pursuant to Article 31(2)(a) of the Commission Rules of Procedure. In support of this argument, Petitioners cite various state and federal cases, dating from 1984 to 2002, in which courts have upheld or declined to review the constitutionality of sentences of life imprisonment without parole. Petition at 42-44.

Petitioners’ contention is correct that no U.S. court has struck down as unconstitutional the sentencing of a juvenile to life imprisonment without the opportunity for parole. It is not correct, however, that the exhaustion rule is inapplicable. The exhaustion of domestic remedies rule elaborated in Article 31 of the Commission’s Rules of Procedure is not recommendatory but obligatory on all petitioners. By its terms, failure to satisfy Article 31 is an absolute bar to bringing a petition. In this instance, it is important to bear in mind that this requirement stems from the fundamental principle that vindication of human rights must in the first and principal instance reside in the State that has assumed such obligations or responsibilities and that international processes are not to be a forum of first instance in such matters. A State must be given the opportunity to redress, by its own means and within the framework of its own domestic legal system, a violation that has allegedly occurred within its territory. Velasquez Rodriguez case, Judgment of July 29, 1988 (Inter-American Court) para 61; see also Interhandel Case (Switzerland v. United States) [1959] I.C.J. 6, 26-27. In Velasquez Rodriguez, the Inter-American Court explained: “The rule of prior exhaustion of domestic remedies allows the State to resolve the problem under its internal law before being confronted with an international proceeding.” Velazquez Rodriquez at para 61.

Indeed, international law looks to national law and national tribunals in the first instance and it is a sovereign right of a State to have its national system accorded the first opportunity to determine the merits of a claim and to decide the appropriate remedy. Here, Petitioners have had numerous opportunities to raise the claims presented in this petition domestically and have, as they readily admit, consistently failed to do so. This failure to raise claims in an appropriate manner and, therefore, to pursue and exhaust domestic remedies is a fatal flaw to the admissibility of this petition. Specifically, Petitioners raise complex legal questions related the Eighth Amendment of the U.S. Constitution, which prohibits “cruel and unusual punishment.” The exhaustion of domestic remedies rule requires that these questions—and any other Constitutional questions that Petitioners may raise—initially be heard and decided in the domestic legal system of the United States.

It is with some irony that Petitioners argue the “futility” of domestic remedies while, at the same time, citing domestic case law to advance their view that juvenile life imprisonment without parole constitutes a violation of the American Declaration. In particular, Petitioners refer repeatedly to Roper v. Simmons to support various aspects of their claim that juvenile life imprisonment violates international law. Roper v. Simmons, 543 U.S. 551 (2005) (abolishing the death penalty for all U.S. juveniles on Eighth Amendment grounds).

More specifically, in arguing the merits of their claim, Petitioners point out that “[t]he Supreme Court held that … differences [between adults and juveniles] render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means their irresponsible conduct is not as morally reprehensible as that of an adult.’” Petition at 33-34. Petitioners also point out that Roper found the juvenile death penalty unconstitutional while “citing to international standards,” including the Convention on the Rights of the Child (CROC), which contains express prohibitions on the juvenile death penalty and the sentencing of juveniles to life imprisonment without parole. Roper at 576; CROC, Art. 37; Petition at 38.

The ACLU itself has characterized Roper as a “landmark”[2] decision and, in the manner described above, Petitioners seek to use Roper to advance their merits argument. Yet, at the same time, Petitioners ask the Commission to ignore Roper for the purposes of admissibility. Petitioners’ admissibility argument relies entirely on cases that pre-date Roper and almost entirely on cases pre-dating Atkins. Atkins v. Virginia, 536 U.S. 304 (2002) (holding that the executions of mentally retarded criminals are “cruel and unusual punishment,” violating the Eighth Amendment to the Constitution). It simply cannot be that cases decided by the U.S. Supreme Court help to establish an international law violation, as Petitioners claim, but are irrelevant for the purpose of proceedings in U.S. courts. In other words, Petitioners want the Commission to believe that a “landmark” decision by the Supreme Court proves an international law violation but has no influence on the jurisprudence in U.S. courts and the viability of domestic claims.

To be sure, U.S. law currently does not prohibit the sentencing of juveniles to life imprisonment without parole. In reviewing a sentence for proportionality under the Eighth Amendment, the Court applies “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958). The Supreme Court’s many Eighth Amendment decisions, some of which are cited by Petitioners, illustrate that these standards are not unchanging. A “proportionality review” includes objective factors, and also the court’s own judgment regarding “whether there is reason to agree or disagree with the judgment reached by the citizenry and its legislators.” Atkins, at 304. There is nothing in the Court’s jurisprudence precluding the consideration of a defendant’s juvenile status, and indeed recent cases like the Roper decision cited by the Petitioners suggest the contrary.

Even if, as Petitioners claim, they “do not have a reasonable prospect of success” of prevailing domestically, it would not “render[] the exhaustion requirement inapplicable.” Petition at 42. Having “no reasonable prospect of success” is not the customary international law standard for futility. In its thorough examination of the subject, the International Law Commission (ILC) has rejected this standard as “too weak.” International Law Commission, 55th Session, Statement of the Chairman of the Drafting Committee, Mr. James L. Kateka at 9 (2003). Even where there is well-established case law adverse to the claimant, “[t]he mere likelihood of an adverse decision is insufficient: there must be ‘something more than probability of defeat but less than certainty.’” International Law Commission, 54th Session, Third Report on Diplomatic Protection, J. Dugard, Special Rapporteur. A/CN.4/523. 7 March 2002 (citing C. F. Amerasinghe, Local Remedies in International Law (1990), at 202). Other analysts have also rejected the standard invoked by Petitioners as “overly favorable to the claimant” and “a departure from the weight of jurisprudence and authority.” J. Paulsson, Denial of Justice in International Law (2005), at 117.

What makes this case unusual is that none of the many Petitioners in this case has ever raised the issues presented in this petition in domestic proceedings. Considering all relevant case law and the fact that the specific issue of juvenile life imprisonment without parole has never been addressed by the United States Supreme Court, it would be fundamentally in error to assume, ex ante, that Petitioners claims are somehow exempt from the exhaustion of domestic remedies requirement. Were the Commission to consider this case admissible, it would in effect repeal Article 31, violate the principle of international law on which Article 31 is based, and arrogate to the Commission powers not granted to it under international law or the authorities granted to it by the member States of the OAS.

B. Petitioners Hill, Hernandez, and Boyd have not exhausted domestic remedies because they continue to pursue remedies in federal court

Petitioners Hill, Hernandez, and Boyd each have cases pending in federal court (habeas proceedings). If these domestic proceedings are decided in Petitioners’ favor, their convictions may be overturned or their sentences may be reduced. Until the remedies sought in these domestic proceedings are exhausted, Petitioners claims before the Commission are not admissible.

- Petitioner Hill, in February 2004, filed a petition for Writ of Habeas Corpus in Federal District Court for the Eastern District of Michigan. Petition at 46. According to the petition, “Henry’s petition for rehearing is pending.” Id.

- Petitioner Barbara Hernandez, in August 2006, filed a petition for Writ of Habeas Corpus in Federal District Court for the Eastern District of Michigan. Petition for Writ of Habeas Corpus at 3-4, Hernandez v. Stovall, Case 2:06-cv-13604-VAR-MKM (E.D. Mich., 2006). The court has not rendered a judgment on this petition.

- Petitioner Kevin Boyd, in November 2004, filed a petition for Writ of Habeas Corpus in Federal District Court for the Eastern District of Michigan. Petition for Writ of Habeas Corpus, Boyd v. Jones, Case 2:04-cv-74462-AC-WC (E.D. Mich., 2004). This petition was denied in June 2006. Opinion and Order Denying Petition for Writ of Habeas Corpus, Boyd v. Jones. Boyd has a right to appeal this decision to the U.S. Court of Appeals for the Sixth Circuit. Id. At the state level, Boyd had previously appealed to the fullest possible extent both his conviction (1999) and a later petition for DNA testing (2004). Petition at 47.

As noted in the petition, the claims made in these Petitioners’ habeas proceedings are different from the claims made in this petition. In the habeas proceedings, Petitioners do not challenge the constitutionality of their sentences or their treatment as juveniles. Rather, in U.S. courts Petitioners have challenged other alleged defects in their previous state court proceedings, namely the ineffective assistance of counsel, improper jury instructions, improper admission of evidence, and denial of the right to confront a prosecution witness. Petition for Writ of Habeas Corpus at 4, Hill v. Lafler, Case 2:04-cv-71278-JCO-SDP (E.D. Mich., 2004); Petition for Writ of Habeas Corpus at 3-4, Hernandez v. Stovall, Case 2:06-cv-13604-VAR-MKM (E.D. Mich., 2006); Petition for Writ of Habeas Corpus at 1, Boyd v. Jones, Case 2:04-cv-74462-AC-WC (E.D. Mich., 2004).

While the claims in the habeas petitions do not overlap with those presented in the petition, the remedies sought are substantially similar. The remedy sought in the habeas petitions—namely relief of the restraint on liberty and “such other, further, and different relief as the Court deems just and proper under the circumstances”—would, if granted, also satisfy the remedies sought for the individual Petitioners. See, e.g., Petition for Writ of Habeas Corpus at 6, Hernandez v. Stovall. Considering that domestic remedies are currently being sought by Petitioners Hill, Hernandez, and Boyd and that the relevant proceedings are either ongoing or subject to appeal, these Petitioners have not satisfied the requirement of the exhaustion of domestic remedies. Accordingly, the Commission should conclude that the petition is inadmissible on these grounds with respect to Petitioners Hill, Hernandez, and Boyd.

C. No information related to domestic remedies has been provided for Petitioners Bentley, Black, Collier, Copeland, Espie, Ferrell, Gonzalez, Hall, Lamar Haywood, Lonnell Haywood, Hynes, Kendrick, King, Latimer, Nunez, Patterson, Petty, Reyes, Robinson, Tremble, Walker, Webb, Whittington, A. Williams, J. Williams, L. Williams, and S. Williams

Information on these 27 Petitioners has not been communicated to the United States. The petition refers to “Annex A,” which has not been transmitted to the United States. Petition at 7. Accordingly, the United States requests that the Commission declare the petition inadmissible with respect to these Petitioners.


III. Failure to File a Timely Petition

As discussed above, Petitioners have not exhausted domestic remedies in accordance with Article 31 of the Commission Rules of Procedure. Accordingly, the petition should be found inadmissible by the Commission. Even if the requirement of exhaustion of domestic remedies were erroneously found to be inapplicable, as Petitioners claim, the petition is nonetheless untimely and therefore inadmissible on alternative grounds.

Under Article 32 of the Commission Rules of Procedure, the “Commission shall consider petitions that are lodged within a period of six-months following the date on which the alleged victim has been notified of the decision that exhausted the domestic remedies.” Where the exhaustion requirement is inapplicable, “the petition shall be presented within a reasonable period of time. . . .” Relevant considerations with respect to the Commission’s determination of reasonableness include “the date on which the alleged violation of rights occurred and the circumstances of each case.” Rules of Procedure, Art. 32 (2).

The relevant dates and circumstances indicate that this petition is not timely with respect to Petitioners Hill, Hernandez, Boyd, Todd, and McLemore. Hill has filed this petition approximately 24 years after his convictions and sentencing in 1982. Hernandez has filed this petition approximately 15 years after her convictions and sentencing in 1991. Boyd has filed this petition approximately 10 years after his convictions and sentencing in 1996. Todd has filed this petition approximately 20 years after his convictions and sentencing in 1986. McLemore filed this petition approximately 6 years after his convictions and sentencing in 2000.

The petition explains in detail the many efforts that these five Petitioners have made to challenge their convictions and sentences. Petition at 46-48. These efforts, however, have no bearing on the timeliness of this petition. As discussed above and in the petition, the domestic challenges involved different claims than those made in this petition. The claims made in this petition have never been heard in state or federal courts. The pursuit of unrelated claims in Michigan and U.S. courts does not render this petition any more timely than if those claims had never been made. Many years, and in some cases decades, have passed since Petitioners’ convictions and sentences.

The petition explains the reason for the lack of timeliness, stating that Petitioners “brought this petition at the first opportunity after learning of the existence of their rights under the American Declaration, learning of the jurisdiction of this Commission, and obtaining the support of the ACLU to bring this petition.” Petition, at 46. Accordingly, “petitioners believe that the circumstances render their petition timely.” Id.

The ACLU is involved in many legal advocacy efforts and exercises its discretion with respect to timing of lawsuits and claims as well as its choice of issues and fora. It also is apparent that the ACLU has been aware of the Commission and its work for many years. With due respect, the fact that the ACLU chose to bring the issues raised in the petition before the Commission in 2006 should not itself establish timeliness. The timeliness requirements of the Commission’s Rules of Procedure lose all meaning when petitions may be brought so many years after the disputed sentences. For instance, if a petition lodged with the Commission 24 years after a disputed sentence is considered “reasonable,” then essentially there is no “deadline for the presentation of petitions” as required by the Commission Rules of Procedure (Art. 32).

In the event that the Commission finds the exhaustion of domestic remedies rule inapplicable, as Petitioners seek, we ask that the Commission dismiss the petition for failure to file in a timely manner.


IV. Failure to Show a Breach of a Duty under the American Declaration

Under Article 34 of the Commission’s Rules, a petition must state facts that tend to establish a violation of the American Declaration. If it does not, the Commission must find the petition inadmissible. Moreover, a petition cannot merely allege general complaints about a state’s law, but must state facts that show actual harm suffered by a petitioner. This petition states no set of facts that constitute a violation of the American Declaration.

In deciding upon claims, the Commission may not, as Petitioners suggest, apply international law outside of the Inter-American system. The Commission Statute explicitly provides that in relation to non-States Parties to the American Convention on Human Rights, for purposes of the Statute, human rights are understood to be only the rights set forth in the American Declaration. Commission Statute, Article 1(2)(b). Further, Petitioners’ repeated reference to and reliance upon decisions and opinions of the Inter-American Court as binding upon the United States are factually and legally incorrect as the United States is not subject to the jurisdiction of that body. The petition is likewise replete with references to treaties to which the United States is not party and other instruments that are not binding upon the United States, including the American Convention on Human Rights, the European Convention on Human Rights, and the Convention on the Rights of the Child.

Although Petitioners allege violations of Articles I, VII, XVIII, XXIV, XXV, and XXVI of the American Declaration, their allegations are based on an erroneously expansive interpretation of those articles. These assertions are unsupported by the text of those articles and rely on a systematically flawed analysis of relevant international law.

A. Petitioners’ criminal sentences do not violate Article VII of the American Declaration

Article VII of the American Declaration states, “all children have the right to special protection, care and aid.” From this language, Petitioners find and assert two “fundamental rights.”

First, Petitioners claim that Article VII of the Declaration includes “the right to be incarcerated for the shortest possible duration.” Petition at 25-6. The second “fundamental right” that Petitioners claim emanates from Article VII is the “right to rehabilitation.” Petition at 26-7. Petitioners’ life imprisonment sentences, it is argued, constitute violations of these fundamental rights.

This reasoning has no basis in the text, history, or structure of Article VII of the American Declaration. Rather, Petitioners base their argument on other international instruments, including the Convention on the Rights of the Child (CROC). A State that wishes to assume international legal obligations with respect to juvenile sentencing is free to become a Party to the CROC, and a very large number of countries have chosen to do so. Accordingly, States Parties to the CROC have an obligation to ensure that “neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.” CROC, Article 37. However, the U.S. has not joined the CROC and, accordingly, is under no obligation to prohibit the sentencing of juveniles to life imprisonment without the opportunity for parole. Rather, the citizens of many U.S. states (including Michigan) have decided, through democratic processes, that serious crimes may warrant life imprisonment, even when committed by persons under the age of eighteen.

To further support their argument, Petitioners cite Article 14(4) of the International Covenant on Civil and Political Rights (ICCPR) which states, inter alia, that “[i]n the case of juvenile persons, the [criminal] procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.”

First, Petitioners’ reliance on the ICCPR is not appropriate, as the Commission does not have the authority to decide upon ICCPR obligations, even for States Parties. Second, any interpretation by the Commission of the ICCPR would need to take into account the relevant U.S. reservation, which clarifies that the United States “reserves the right, in exceptional circumstances, to treat juveniles as adults, notwithstanding … paragraph 4 of article 14.” ICCPR, United States of America: Reservations, para. 5. The history of this reservation shows that it was intended to permit the trial of juveniles as adults and the incarceration of juveniles and adults in the same prison facilities. Moreover, in the case of the Petitioners, exceptional circumstances exist: the five individual Petitioners have been convicted of serious violent crimes, including first-degree murder. These are precisely the kind of circumstances that the United States included within its reservation.

Accordingly, the United States is not bound by any international law rule prohibiting sentencing of juveniles to life imprisonment, nor is the United States bound by the “fundamental rights” that Petitioners intuit from Article VII. Overall, Petitioners improperly and atextually conjure specific and “fundamental” rights from the otherwise general prescription of Article VII.

B. Petitioners’ criminal sentences do not violate the right to life, liberty and security (Article I) or constitute cruel, infamous, or unusual punishment (Article XXVI)

Petitioners’ claim that the United States Government violated Article I (right to life, liberty, and security) and Article XXVI (right not to receive cruel, infamous or unusual punishment) is incorrect. Article I of the American Declaration states that everyone has the right to life, liberty and security. The United States respects this right fully as evidenced by the fact that a sentence of life without parole can only occur in accordance with due process of law and stringent procedural safeguards guaranteed by the U.S. Constitution and relevant state constitutions. The right to life, liberty and security is in no way a prohibition on the sentencing of juveniles to life imprisonment.

Petitioners further attempt to characterize sentences of life imprisonment without parole for those under 18 years of age as cruel, infamous or unusual punishment in violation of Article XXVI of the American Declaration. This characterization is without merit, as the United States Constitution prohibits cruel and unusual punishment. U.S. Const. amend. VIII. When the United States becomes party to treaties, it does so only with the understanding that prohibitions of cruel, infamous, or unusual treatment or punishment (or similar language) are coextensive with the United States’ constitutional prohibitions. See, e.g., Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Declarations and Reservations of the United States: Reservation I(1).[3] It would be fundamentally improper for the Commission to interpret the analogous provisions of the American Declaration as establishing protections for U.S. citizens that exceed those guaranteed by the Fifth, Eighth, and/or Fourteenth Amendments of the U.S. Constitution. As discussed in Section II, and readily admitted by Petitioners, none of the Petitioners has challenged the Constitutionality of their sentences in the United States judicial system.

Petitioners fail to allege a valid claim under Articles I or XXVI and United States law is fully consistent with the American Declaration. The Commission should find Petitioners’ claims to be without merit.

C. The United States has not violated the due process provisions of the American Declaration (Articles XVIII, XXIV, XXV and XXVI)

Petitioners claim that Michigan law violates Article XVIII (right to fair trial), XXIV (right to submit respectful petitions to any competent authority), Article XXV (right to liberty and humane treatment), and XXVI (right to an impartial and public hearing). These claims, too, are without merit. As is well known, the United States Constitution affords all defendants extensive due process protections. This is evidenced in part by Petitioners’ extensive trials, appeals, and subsequent habeas proceedings. Overall, Petitioners offer only a generalized grievance with respect to Michigan law and do not present facts sufficient to support a claim that any particular right of any particular Petitioner has been violated.


D. A sentence of life imprisonment without parole for a juvenile does not violate customary international law

As a preliminary matter, the Commission is not empowered to consider the question of whether the United States laws violate customary international law since this is beyond the scope of its jurisdiction. Commission Statute, Art. 20. Nevertheless, Petitioners’ claim that the United States has violated customary international law is unfounded.

A rule of customary international law may be formed where state practice is “both extensive and virtually uniform” and where States act under a sense of legal obligation (opinio juris). North Sea Continental Shelf(F.R.G. v. Den; F.R.G. v. Neth),1969 I.C.J. at ¶ 74 (Merits - Judgment of Feb. 20). In this case, there is neither the uniformity of state practice, nor the required opinio juris. Even if one were to assert, as Petitioners do, that a customary international law rule forbids the sentencing of juveniles to life imprisonment without parole, no such rule could bind the United States. A State that persistently objects to an alleged customary rule cannot be bound by it. See, e.g., Ian Brownlie, Principles of Public International Law at 10 (1998). Indeed, the Commission in Domingues stated that “a norm of customary international law binds all states with the exception of only those states that have persistently rejected the practice prior to its becoming law.” Domingues, Case 12.285, Oct. 22, 2002 (IACHR) at para. 48.

The United States has persistently maintained its right to sentence juveniles who have committed serious crimes to life imprisonment without parole and has done so for over a century. See, e.g., List of Issues To Be Taken Up in Connection With the Consideration of the Second and Third Periodic Reports of the United States of America.[4] The United States has never accepted the prohibition of this practice and explicitly objects (and has persistently objected, as a historical matter) to any suggestion of its status as a rule of customary international law. Further, the United States has not ratified the CROC, and regularly cites Article 37 of the treaty—which prohibits the sentencing of juveniles to life imprisonment without parole—as one of its justifications for its lack of support. Considering the clear and long-standing objections of the United States, the United States cannot be held to any such rule prohibiting life sentences without parole for juveniles.

Overall, the policies and practices of the United States, including those of the State of Michigan, concerning life imprisonment without parole are fully consistent with U.S. obligations under international law.

E. Twenty-seven Petitioners have not stated a valid claim

Bentley, Black, Collier, Copeland, Espie, Ferrell, Gonzalez, Hall, Lamar Haywood, Lonnell Haywood, Hynes, Kendrick, King, Latimer, Nunez, Patterson, Petty, Reyes, Robinson, Tremble, Walker, Webb, Whittington, A. Williams, J. Williams, L. Williams, and S. Williams have failed to state a valid claim under the American Declaration. Information on these 27 Petitioners has not been communicated to the United States. The petition refers to “Annex A,” which has not been transmitted to the United States. Petition at 7. Accordingly, the United States request that the Commission declare the petition inadmissible with respect to these Petitioners.


V. Improper Inclusion of a non-OAS Member

Petitioners bring this petition “against the United States of America and the State of Michigan.” Petition at 3, emphasis added. According to its Rules of Procedure, the Commission is to consider petitions alleging violations of human rights “with respect to the Member States of the OAS.” Rules of Procedure, Art. 27, emphasis added. The procedures for reviewing, considering, processing, and admitting petitions involve only petitioners, the Commission, and States. Rules of Procedure, Arts. 26-30. Furthermore, the Commission has authority under its statute to examine petitions only “in relation to…member states of the Organization….” Commission Statute, Art. 20.

The state of Michigan is not a member of the Organization of American States, and the Commission’s rules do not allow for a petition to be considered with respect to a sub-national entity such as Michigan. Accordingly, the United States requests that the Commission declare this petition inadmissible in toto with respect to the state of Michigan.


VI. Conclusion

For the above stated reasons, the United States respectfully requests that the Commission declare Petition No. P-161-06 inadmissible.



[1] The American Declaration of the Rights and Duties of Man (“American Declaration”) is a non-binding instrument and does not itself create rights or impose duties on OAS member states.
[2] “ACLU Welcomes Landmark Supreme Court Ruling Striking down Death Penalty for Juveniles,” available at: http://www.aclu.org/scotus/2004/13928prs20050301.html (Mar. 1, 2005).
[3] This reservation reads: “The United States considers itself bound by the obligation under article 16 to prevent ‘cruel, inhuman or degrading treatment or punishment’, only insofar as the term ‘cruel, inhuman or degrading treatment or punishment’ means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”
[4] Available online at http://www.state.gov/g/drl/rls/70385.htm.


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