In Whose “Best Interests”? -- an International and Comparative Assessment of Us Rules on Sentencing of Juveniles

Abstract

According to numerous sources, both at the international level and within the USA, legal standards governing the treatment of children (commonly defined as persons under 18 years old) -- including their treatment at the hands of the judicial system -- should reflect an assessment of “the best interests of the child”. An explicit announcement of this principle at the international level appears in the Convention on the Rights of the Child (“CRC”), which nearly all countries in the world have adopted. Article 37 of the CRC elaborates on the “best interests” principle, by prescribing six key standards national juvenile justice systems are to follow when dealing with young people convicted of crimes. Two of the six key standards -- prohibiting the imposition on juveniles of either (i) the death penalty or (ii) life imprisonment without possibility of parole -- have already generated intense public debate in the USA. This article examines the other four standards, which seem to have much broader practical implications than the first two. The other four standards provide that: (1) imprisonment of juveniles “shall be used only as a measure of last resort”; (2) any such imprisonment shall be “for the shortest appropriate period of time”; (3) juveniles who are in prison shall be “separated from adults”; and (4) they shall have the right to maintain “family contact”. The first portion of this article provides a synopsis of these four standards, their status in international law, and their reflection in the practice of several countries around the world. Against the backdrop of this international and comparative law survey, the article then examines legal provisions regarding treatment of juvenile offenders in the USA. First it presents details as to how each of the four standards is reflected in selected formal rules and guidelines in the USA, mainly at the state level, and then it offers a general assessment of the degree to which rules on juvenile sentencing in the USA match (or fail to match) the CRC standards. The general assessment provided is not favorable; it throws into question whether the treatment of juveniles in conflict with the laws of this country does in fact give adequate attention to “the best interests of the child”.