What's Beneath the Graham Cracker?: The Potential Impact of Comparative Law on the Future of Juvenile Justice Reform after Graham v. Florida

David A. Shapiro, Brooklyn Law School

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Abstract

The United States continues to incarcerate children for longer periods than any other country. It remains perhaps the only country in the world to sentence juveniles to life without parole. It has violated the most basic of international legal conventions, including the United Nations Convention on the Rights of the Child (CRC). It is time to bring juvenile sentencing and reforms in line with the rest of the civilized world. There are more than two hundred different countries with their own juvenile sentencing and reform laws.

This article argues that reformers are better off looking to these countries directly than asking the Supreme Court to look to international norms. The Court’s current treatment of international sources fails to provide the nuanced approach necessary to produce compelling change in the field of juvenile justice reform. International legal norms are derived from pre-existing policies and laws. We ought to look to the rationales behind the laws and policies of individual countries, viewing the CRC as a compromise, rather than as the gold standard. This new framework emphasizes a dynamic, comparative approach to juvenile rights reform in America, over the international law paradigm that has so far been the go-to standard for advocates. By learning from the trial and error of other sovereign nations, we can reform juvenile sentencing nationwide, well beyond the timid limits that the Supreme Court established in Graham. Ultimately, I believe this more nuanced portrayal is illustrative of how far juvenile sentencing reform can and should go in the United States.