Explore Harvard's Nieman network Nieman Fellowships Nieman Lab Nieman Reports Nieman Storyboard

What does the U.S. have in common with South Sudan and Somalia?

ASK THIS | June 07, 2012

They're the only three countries in the world that haven't ratified the U.N. Convention on the Rights of the Child. The authors of a new report, 'Cruel and Unusual: U.S. Sentencing Practices in a Global Context', find that overlong sentences and prosecution of children are two ways the U.S. is out of step with most of the rest of the world.


By Amanda Solter, Soo-Ryun Kwon and Dana Marie Isaac
atsolter@usfca.edu, skwon2@usfca.edu and dmisaac@usfca.edu

Q. Why does the United States continue to incarcerate so many people? Are Americans really safer as a result of harsh sentencing practices?

The United States has 5% of the world’s population but 25% of the world’s prison population. The U.S. prison population dwarfs those of other countries’ per capita and in absolute terms. It does not necessarily have higher crime rates or even higher per capita prison admissions; instead, the high incarceration rate is due to long prison sentences.

The Pew Center on the States found that over 80% of voters favor reducing prison time for non-violent offenders and instead creating a stronger probation and parole system. Despite this, a confluence of factors have lengthened sentences. Outcry from victims’ rights groups, the rise of private prisons run by corporations, and the lobbying efforts by both companies that run private prisons and prison guards unions have all contributed to lengthy prison terms. Questions about the proportionality of sentences and whether some parties stand to benefit should continue to be asked.

Q. Do U.S. sentencing laws violate international law?

In a word, yes. The United States is party to the International Covenant on Civil and Political Rights, which requires that a country’s penitentiary system “shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.” Practices that include life without parole sentences, stacking of consecutive sentences resulting in excessive sentences, and harsh mandatory minimums hardly purport to have rehabilitation as the final goal.

Retribution has become the name of the game and the United States is no longer considered a model in regard to criminal sentencing. For example, Article 15 of the treaty declares the right of an offender to benefit when a change of law will lighten his or her sentence. The United States is the only one of 167 signatories to the treaty to place a reservation stating that this article would not be applied. While Congress may make a beneficial change in law retroactive, there is no requirement to do so and they frequently chose not to. Yet this protection is so universally accepted that 67% of countries have codified it in their constitutions or criminal codes. Of the remaining countries that haven’t codified the right, most are signatories to the treaty and have agreed to adhere to its principles. The United States is therefore 1 of only 11% of countries to not provide this right to its citizens. Other violations include sentencing juvenile offenders to life without parole and the possibility of prosecutions by both the federal and state governments for the same crime.

Q. Why does the United States treat its juveniles as children in all aspects of the law except criminal law?

Juveniles represent a distinct and separate class of individuals who have a diminished culpability. The laws of the United States have long recognized this by placing certain restrictions on what juveniles are allowed to do; children are prohibited from marrying, voting, drinking and contracting. This, however, is not true in the criminal justice system where juveniles can be tried and sentenced as adults. Currently, 45 states and the District of Columbia allow for a juvenile to be transferred to adult court, where they are stripped of any protections that allow for a consideration of their age. This practice is contrary to those of the rest of the world: 84% of countries require that the age of the offenders be considered at trial, thereby ensuring that they are tried as juveniles.

It is also contrary to the Convention on the Rights of the Child, which prohibits ignoring the offender’s status as a juvenile. The United States is one of only three countries that have not ratified the treaty, including the newly formed country of South Sudan, and Somalia, which lacks a formal government. Additionally, in the United States, once the juvenile is transferred to an adult court, they can receive an adult sentence. This results in juveniles serving disproportionately long sentences. While over half of the countries’ maximum sentence for a juvenile is 25 years or less, the United States remains the only country to sentence children under 18 to life without parole.

Q. Why can people be sentenced to life without parole for crimes such as non-violent drug offenses in the United States? Do such people really deserve to die in prison? Is it impossible that they may be rehabilitated during their lifetimes?

In Texas, a 56-year-old grandmother and first-time offender was sentenced to life without parole (LWOP)  for conspiracy to smuggle cocaine into the United States from Mexico on tour buses. Only 20% of countries around the world even issue life without parole sentences, and in those which do, they have high restrictions on when they can be issued, such as only for murder or for two or more convictions of life sentence-eligible crimes. The number of prisoners serving LWOP sentences is more than 41,000 in the United States. In contrast, there are 59 serving such sentences in Australia, 41 in England, and 37 in the Netherlands. The size of the U.S.’s LWOP population dwarfs other countries’ on a per capita basis as well; it is 51 times Australia’s, 173 times England’s, and 59 times the Netherlands’.

Amanda Solter, Soo-Ryun Kwon and Dana Marie Isaac are human rights fellows at the University of San Francisco School of Law’s Center for Law and Global Justice, and the authors of  "Cruel and Unusual: U.S. Sentencing Practices in a Global Context", a report  examining the sentencing laws of all the countries around the world.



They're the only three countries
Posted by ba lo
06/12/2012, 12:24 AM

They're the only three countries in the world that haven't ratified the U.N. Convention on the Rights of the Child. The authors of a new report, 'Cruel and Unusual: U.S. Sentencing Practices in a Global Context', find that overlong sentences and prosecution of children are two ways the U.S. is out of step with most of the rest of the world.





Cruel and Unusual: U.S. Sentencing Practices in a Global Context

The NiemanWatchdog.org website is no longer being updated. Watchdog stories have a new home in Nieman Reports.