Juvenile Offenders and the Death Penalty

Juvenile Offenders and the Death Penalty

The execution of juveniles is squarely prohibited by a number of multilateral treaties, including the ICCPR (art. 6); the American Convention on Human Rights, art. 4(5); and the Convention on the Rights of the Child, art. 37(a).

The vast majority of countries that retain the death penalty have adopted legislation prohibiting the execution of juvenile offenders or have acceded to treaties that bar such executions. The United States was one of the last countries to impose such a ban: it was not until 2005 that the United States Supreme Court determined that the execution of juvenile offenders violated the Eighth Amendment to the U.S. Constitution (prohibiting cruel and unusual punishment).¹

Despite a nearly universal consensus that the execution of juvenile offenders violates international law, Amnesty International and other human rights organizations periodically report that juvenile offenders have been sentenced to death. Most of these death sentences are imposed in Iran, where there are a significant number of juvenile offenders on death row.

Even in retentionist states that prohibit the application of the death penalty to juvenile offenders, there is some risk that individuals can be sentenced to death for crimes committed when they were children. Many countries in the global south still lack a national birth registry. As a result, many children in conflict with the law are unable to prove that they are under the age of eighteen. Juvenile offenders may not even know when they were born. Where there is a dispute about the offender’s age, courts in some countries may order a physical examination in which a medical practitioner estimates the age of the accused based on the circumference of her wrist or the condition of her teeth (among other things). Such evaluations are notoriously unreliable, and international bodies have emphasized that where there is reason to believe that the accused is under the age of eighteen, she is entitled to the benefit of the doubt.

Cases

Domingues v. United States, para. 85, Report No. 62/02, doc. 5 rev. 1, Inter-Amer. Com. on Human Rights, Oct. 22, 2002.

Roper v. Simmons, 543 U.S. 551, U.S. Supreme Ct., Mar. 1, 2005.

Commentary

Amnesty Intl., The Exclusion of Child Offenders from the Death Penalty Under General International Law, ACT 50/004/2003, Jul. 17, 2003.

Curtis A. Bradley, The Juvenile Death Penalty and International Law, 52 Duke L.J. 485, 2002.

Jennifer L. Brillante, Continued Violations of International Law by the United States in Applying the Death Penalty to Minors and Possible Repercussions to the American Criminal Justice System, 29 Brook. J. Intl. L. 1247, 2004.

Christopher L. Dore, What To Do With Omar Khadr? Putting a Child Soldier on Trial: Questions of International Law, Juvenile Justice, and Moral Culpability, 41 J. Marshall L. Rev. 1281, 2008.

Suzanna Farley, Juvenile Enemy Combatants and the Juvenile Death Penalty in U.S. Military Commissions, 47 Santa Clara L. Rev. 829, 2007.

William Feldman, The Role of International Human Rights Law in the American Decision to Abolish the Juvenile Death Penalty, 7 Appalachian J.L. 89, 2007.

Jacqulyn Giunta, Roper v. Simmons: The Execution of Juvenile Criminal Offenders in America and the International Community’s Response, 22 St. John’s J. Legal Comment. 717, 2008.

Human Rights Watch, The Last Holdouts: Ending the Juvenile Death Penalty in Iran, Saudi Arabia, Sudan, Pakistan, and Yemen, http://www.hrw.org/sites/default/files/reports/crd0908web_0.pdf, Sep. 2008.

Elizabeth A. Reimels, Playing for Keeps: The United States Interpretation of International Prohibitions Against the Juvenile Death Penalty–The U.S. Wants to Play the International Human Rights Game, but Only if It Makes the Rules, 15 Emory Intl.L. Rev. 303, 2001.

Last updated on October 31, 2011.