Students examine juvenile justice in U.N. report

For the past few years, groups of students at Indiana University School of Law – Indianapolis’ International
Human Rights Law Society, with encouragement from the school’s Program in International Human Rights Law, have been
working on and presenting various reports on human rights issues to experts who work for the United Nations.

While they don’t actually present their reports during meetings of the U.N. General Assembly or Human Rights Council,
they have had luck in having private meetings with experts who can meet with policy makers and ask the tough questions of
countries violating those rights.

The latest report from the students is “The United States of America: Juvenile Life without Parole,” which the
group submitted to the Human Rights Council on April 19.

The 11 students who worked on the report, led by 2L Bobby Y. Lydon-Lam, researched the sentencing laws for juveniles in all
50 states. They then pooled and distilled their research into a six-page report that was submitted for the Universal Periodic
Review Session. Those hearings, which will take place in late 2010, will discuss how the U.S. is following international human
rights standards set by the U.N.
 

Lydon-Lam

The report claims the U.S. is violating a number of U.N. conventions, including the International Covenant on Civil and Political
Rights; Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment; Convention on the Elimination
of All Forms of Racial Discrimination; and Convention on the Rights of the Child.

Following their research, LL.M. candidate Ntsika W. Fakudze of Swaziland was surprised to learn about the variation from
state to state when it comes to how each state handles juvenile offenders in situations where the juveniles can be tried as
adults and sentenced to life without parole.

“From an international perspective, it was interesting to see the implications involved in cases involving juveniles
and the way legislation is evolving and changing in different states,” he said.

James R. Smerbeck, a 1L, was also surprised to see it wasn’t necessarily a nationwide problem because most of the 2,574
cases in 2009, according to Human Rights Watch, weren’t evenly distributed among the states that allow life without
parole for juveniles.

Ann Marie Judson-Patrick, also a 1L, was surprised to see that the states were proposing different legislation to either
make the sentencing guidelines looser or stricter, depending on the state. She added that some states were considering how
coercion by the offenders’ peers was also factored into sentencing legislation the states were considering.

On the other hand, Evelyn Aero, an LL.M. candidate from Uganda, said she was surprised there wasn’t much litigation
around the issue of sentencing juveniles to life imprisonment.

“I would think strategic litigation would make an impact,” she added.

Lydon-Lam, who studied Indiana’s juvenile justice laws for the report, said Indiana was doing well compared to other
states.

He said there were some crimes where, if committed by someone under 18, were automatically tried as if the juvenile was an
adult, but Indiana courts seem to have a lot of discretion that many other states’ courts don’t have. He added
that while Indiana is one of 15 states that allows a judge to sentence a juvenile offender to life without parole, there were
only two such cases where it has happened.

Among the solutions the group presented in the report were to eliminate life sentences without the possibility of parole
for crimes committed by offenders who are under 18 years old, to reflect on scientific studies about the psychological development
of juveniles, to emphasize rehabilitation and education for juvenile offenders, and “to retroactively apply these recommendations
to juveniles currently serving life without parole.”

The students also noted that there are two yet-to-be-determined cases before the Supreme Court of the United States on this
issue that address whether sentencing juveniles to life without parole violated the Eighth Amendment, regarding cruel and
unusual punishment.

Those cases were heard Nov. 9, 2009: Sullivan v. Florida¸ No. 08-7621, and Graham v. Florida, No.
08-7412. If they are decided before the review in Geneva later this year, that could have an impact on how the hearings go,
the students said.

Joe Sullivan was sentenced to life without parole when he was age 13 for sexual battery of an older woman. Sullivan, who
is mentally disabled, was accused of the crime by someone else who was with him earlier that day and served a lesser sentence.
Sullivan was 33 at the time of the oral argument.

In Graham, Terrance Graham was 16 years old when he pleaded guilty to attempted armed robbery and armed burglary.
In exchange for his plea, he was sentenced to three years probation. At 17, Graham admitted he had violated probation by missing
his curfew, and a trial judge also found him guilty of a home invasion robbery, and sentenced him to life without parole for
the armed burglary charge from when he was 16. Graham was 22 at the time of the oral argument.

Florida countered in its response brief to Graham, that “Florida’s system reserves adult criminal court
only for a small percentage of juveniles committing crimes; namely, those who demonstrate that they are ill-suited for progressive
juvenile programs because they committed the most serious of criminal offenses, are older teens, or demonstrated that they
are unable or unwilling to benefit from the juvenile system by continuing to commit crimes.”

In the case of Sullivan, Florida’s response brief stated, “This case presents no basis for upsetting
long-established state post-conviction procedures because Sullivan’s federal constitutional claim could have been asserted
at trial and on direct appeal.” The brief also criticized Sullivan’s claim that his sentence violated international
law.

While there’s no guarantee the report will have an impact on its own, the students were optimistic and proud of their
work.

“If countries aren’t taking care of human rights violations, it’s up to advocates to step up,” Fakudze
said. “You have to bring those issues to the table and talk about them in the right forums.”

It is also a welcome change from their class work.

“To be able to do something like this as a 1L, it’s pretty exciting to participate in something outside of the
classroom where we’re doing legal research and writing,” said Javeneh Nekoomaram. “In class, we have lots
of guidance and supervision, but for this we had to make sure everything was accurate.”

Other students who worked on the report included John L. Tao, who will lead next year’s shadow reports team for the
organization; Leontiy V. Korolev; Saira N. Latif; Kalli Dee McBride; and Samantha K. Sledd.

While the students came up with the subject matter and conducted the research, it was endorsed by George Edwards, director
of the Program in International Human Rights Law. •