CAPÍTULO II MARCO TEÓRICO
LA UTILIZACIÓN DE LOS MEDIOS DE ENSEÑANZA Y SU INFLUENCIA EN LA CREATIVIDAD
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255. United Nations Rules for Juveniles Deprived of Their Liberty, Adopted by General As- sembly resolution 45/113of 14 December 1990, Office of the High Commissioner of Hu- man Rights, paragraph 1.2 Online. Available: http://www.unhchr.ch/html/menu3/b/h_ comp37.htm. Accessed: April 1, 2008.
256. Thompson v. Oklahoma, 487 U.S. 815, 830 n. 31 (1988).
257. Donald Cipriani, “Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective,” December 10, 2007 (draft Ph.D. dissertation on file with the author). 258. See University of San Francisco School of Law, Center for Law and Global Policy, “New In- formation on Juvenile LWOP Global Practice,” February 2008. Online. Available: http:// www.law.usfca.edu/home/CenterforLawandGlobalJustice/Juvenile%20LWOP.html. Ac- cessed July 18, 2008.
259. International Brief, supra note 7, pp. 24-25.
should not “preclude[e] the possibility of . . . early release,”255 which is a direct critique of
“without possibility of parole” laws. While juvenile transfer and sentencing laws may not be a direct violation of the ICCRP or the JDL Rules given the limiting stipulation of the U.S., the treatment of children in the United States does not send a positive signal to the international community regarding America’s stance as a human rights leader.
B. International Juvenile Justice Practices
Nearly every nation in the world other than the U.S. refuses to subject young children to trial as adults or to adult-level mandatory minimum sentences. Those countries that reject this treatment of juveniles include “nations that share our Anglo-American heri- tage” and “leading members of the Western European community”—those countries to which the U.S. should be compared, according to the United States Supreme Court. 256
But in more than half of the 50 states in America, as well as in the District of Columbia, a child—often as young as 7—can be prosecuted in the adult system and subsequently be subjected to lengthy minimum sentences disproportionate to the child’s age.
Attached as Appendix A to this report are two detailed charts containing the policies of each country with regard to the treatment of juveniles as adults. The charts make clear that in the vast majority of countries around the world, pre-adolescent children could never be treated as adults for criminal justice purposes. In the majority of industrialized nations, the minimum age of criminal responsibility (“MACR”) is 18, consistent with the recommendation of the United Nations and requirements of international human rights laws. This MACR is considered a protection for children who are too young to understand the consequences of their actions and who would benefit more from staying with their families than by being punished within the criminal justice system.257
The charts in Appendix A also illustrate that, even in those rare instances where prosecu- tion in adult court is theoretically possible, criminal judges do not have the option to im- pose excessively long sentences on these children. The available sentences are noticeably shorter than those that American judges can apply when children are tried as adults. Most significantly, life without parole for juveniles is a sentence available only in the United States. Israel, for a long time the only other country that permitted juvenile life without parole sentences, recently modified the sanction so that periodic parole reviews are held.258 But even sentences for a term of years are much shorter in other countries
when juveniles are involved. Even if the sentences that would be applied to adults are long, there are special sentences tailored for any juveniles convicted under these laws.259
The United States finds itself out-of-step not only with other Western democracies, but also with countries in the developing world, Islamic nations, and countries that are often viewed as human rights violators. For instance, China will not prosecute in any court a child younger than 14.260 Moreover, under Egyptian law, a child younger than 15 who
commits even the most violent offense is not held criminally responsible for his or her actions.261 Albania will not try as an adult anyone under 18 at the time of the offense.262
Anecdotal evidence supports these findings about international practices. In researching cases of juveniles prosecuted for serious offenses around the globe, we found no instanc- es where juveniles under age 18 outside the United States had received 20- or 30-year sentences. In most countries, such long sentences are not even theoretically possible where older juveniles are concerned. Typically, a juvenile will be ordered to pay fines or spend a brief time in a juvenile facility in those countries that comply with international treaties.263 Yet in the United States, Christopher Pittman in South Carolina and Evan
Savoie in Washington State, both only 12 at the time of their crimes, received sentences of 30 years without possibility of parole and 26 years respectively. Such harsh treatment of pre-adolescent children is stunning to most international observers.264
Moreover, mandatory minimum sentencing is nearly nonexistent globally except in the United States. The nations that do have mandatory minimum sentences available for children are gradually moving to outlaw these sentences. The Supreme Court of Appeal of South Africa, for example, recently held that mandatory sentencing legislation in that country should not apply to children of any age. According to South Africa’s highest court, “The overriding message of the international instruments . . . is that child offend- ers should not be deprived of their liberty except as a measure of last resort and, where incarceration must occur, the sentence must be individualized with an emphasis on pre- paring the child offender . . . for his or her return to society.”265
Similarly, in May 2008, the Supreme Court of Canada ruled that juveniles cannot be automati- cally punished as adults. The burden must be on the prosecutor to show that such a sentence is justified in a particular case.266 The Court struck down specific provisions of the Youth Criminal
Justice Act, which treated youth who committed serious crimes as adults unless they could per- suade the judge otherwise. According to Justice Abella in the majority opinion: “The principle of fundamental justice at issue here is that young people are entitled to a presumption of diminished moral blameworthiness or culpability flowing from the fact that, because of their age, they have heightened vulnerability, less maturity and a reduced capacity for moral judgment. That is why there is a separate legal and sentencing regime for them.”267
260. See Appendix A (citing Criminal Law of the People’s Republic of China (1997), art. 17,
available at http://www.cecc.gov/pages/newLaws/criminalLawENG.php; UNICEF, The Progress of Nations 56 (1997)).
261. See Appendix A (citing Committee on the Rights of the Child, Periodic reports of States parties due in 1997: Egypt, CRC/C/65/Add.9, 11 November 1999, Par. 191).
262. International Brief, supra note 7, p. 23. 263. Ibid., p. 24.
264. Ibid.
265. Brandt v. State 2005 (2) All SA 1 (SCA) (S. Afr.).
266. Janice Tibbetts, “Court’s youth crime decision a blow to Tory crime agenda,” Canwest News Service (May 16, 2008). Online. Available: http://www.nationalpost.com/nationalpost/ story.html?id=520100. Accessed: June 8, 2008.
267. R. v. D.B., 2008 SCC 25.
In prosecuting
young children
as adults, the
United States
finds itself
out-of-step
not only with
other Western
democracies,
but also with
countries in
the developing
world, Islamic
nations, and
countries
that are often
viewed as
human rights
violators.
Considering the Global Context
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As illustrated by the high court rulings in South Africa and Canada, this emphasis on in- dividualization cannot co-exist with the imposition of mandatory minimum sentences, as often occurs in the United States when young children are tried as adults.
C. Summary
Thus, we see a global consensus that children should not be held to the same standards of criminal responsibility as adults. International law also recognizes that children are entitled to special protection and treatment. Such beliefs translate into policies in almost every country that do not allow for the trial and harsh sentencing of pre-adolescent chil- dren, regardless of their offense.
American policies that allow very young children to be tried and sentenced as adults, with sentences up to and including life without possibility of parole, set the United States apart from its peer countries—indeed, from all countries—in ways that are deeply troubling.