graham v. florida; sullivan v. florida, cato legal briefs

8/14/2019 Graham v. Florida; Sullivan v. Florida, Cato Legal Briefs

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Nos. 08-7412, 08-7641

WILSON -EPES P RINTING CO., INC . (202) 789-0096 WASHINGTON , D. C. 20002

IN THE

Supreme Court of the United States

TERRANCE J AMAR GRAHAM , Petitioner ,

v.

STATE OF F LORIDA , Respondent .

J OE H ARRIS S ULLIVAN

Petitioner , v.

STATE OF F LORIDA , Respondent .

On Writs of Certiorari to the

District Court of Appeal of Florida,First District

BRIEF FORSOLIDARITY CENTER FOR LAW AND JUSTICE,THE SOVEREIGNTY NETWORK, ET AL ., AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

STEVEN GROVES THE SOVEREIGNTY N ETWORK 915 E St NWWashington, DC 20004

* Counsel of Record

J AMES P. K ELLY , III*SOLIDARITY CENTER FOR

L AW AND J USTICE , P.C.Five Concourse ParkwaySuite 200

Atlanta, Georgia 30328(678) 231-1209Counsel for Amici Curiae

[Additional Amici Listed on the Inside Cover]


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Additional Amici

: Americans United for Life

Catholic Family and Human Rights Institute

Center for Security Policy

Concerned Women for America

Family Advocacy International

Family Watch International

Freedom Alliance

Hudson InstituteThe Cato Institute

The Competitive Enterprise Institute

United Families International


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(i)

TABLE OF CONTENTS Page

TABLE OF AUTHORITIES ................................ iii

STATEMENT OF INTEREST ............................ 1

SUMMARY OF ARGUMENT ............................. 2

ARGUMENT ........................................................ 4

I. R EFERRING TO N ON -B INDING TREATYP ROVISIONS OR AN INSUFFICIENTLYDEFINITE INTERNATIONAL N ORM AS AB ASIS FOR DETERMINING WHETHERF LORIDA S SENTENCING OF J UVENILES TOL IFE W ITHOUT P AROLE V IOLATES THEE IGHTH A MENDMENT W ILL U NDERMINETHE DEMOCRATIC P ROCESS AND RULE OFL AW ............................................................ 4

A. Floridas Public Officials, its JuvenileJustice Advocacy Groups, and Con-cerned Florida Citizens Should BePermitted to Continue to Utilize the

Democratic Process to Address theProblem of Increased Youth Violencein Their State ....................................... 5

B. Neither Non-Binding Treaty Provi-sions Nor an Insufficiently DefiniteInternational Norm Regarding theSentencing of Juveniles to Life With-out Parole Should Serve as aBasis for Determining WhetherFlorida Juvenile Life Without ParoleSentencing Laws Violate the Eighth

Amendment to the United StatesConstitution ......................................... 10


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TABLE OF AUTHORITIESCASES Page

Bivens v. Six Unknown Fed. Narcotics Agents , 403 U.S. 388 (1971) ...................... 18

Conroy v. Aniskoff , 507 U.S. 511 (1993) ...... 28 Sosa v. Alvarez-Machain , 542 U.S. 692

(2004) ........................................................ passim

CONSTITUTION

U.S. Const. Amend. V ................................... 14, 15

U.S. Const. Amend. VIII ............................. passim U.S. Const. Amend. XIV ............................... 14, 15

STATUTES

Alien Tort Statute, 28 U.S.C. 1350(1789) ...................................................... 2, 12, 13

Civil Rights Act of 1871, 42 U.S.C. 1983(1871) ......................................................... 18

U.S. reservations, declarations, and under-standings, International Covenant onCivil and Political Rights, 138 Cong.

Rec. S4781-01 (April 2, 1992) ........ 14, 15, 16, 34BILLS

Florida Second Chance for Children inPrison Act of 2009, SB 1430 (2009) .......... 7

Juvenile Justice Accountability andImprovement Act of 2009, H.R. 2289(2009) ......................................................... 8

RULES

Supreme Court Rule 37.2(a) ........................ 1


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TABLE OF AUTHORITIESContinuedTREATIES Page

Convention on the Elimination of AllForms of Discrimination against Women,1249 U.N.T.S. 13, Dec. 18, 1979, http:// www2.ohchr.org/english/law/cedaw.htm ... 29, 30

International Convention on the Elimina-tion of All Forms of Racial Discrimina-tion, 660 U.N.T.S. 195, Dec. 21, 1965,http://www2.ohchr.org/english/law/cerd.

htm ............................................................ 31, 32International Covenant on Civil andPolitical Rights, 999 U.N.T.S. 171, Dec.16, 1966, http://www2.ohchr.org/english/ law/ccpr.htm ............................................. passim

International Covenant on Economic,Social and Cultural Rights, 993 U.N.T.S.3, Dec. 16, 1966, http://www2.ohchr.org/ english/law/cescr.htm ............................... 29

United Nations Convention on the Rightsof the Child, 1577 U.N.T.S. 3, Nov.

20, 1989, http://www2.ohchr.org/english/ law/crc.htm ............................................... passim

UNITED NATIONS DOCUMENTS

Commission on Human Rights, WorkingParty session, UN Doc. E/CN.4/1989/48(1989) ......................................................... 20

Committee on Economic, Social andCultural Rights, The Right to Water,General Comment No. 15, U.N. Doc.E/C.12/2002/11 (2002) ............................... 29


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TABLE OF AUTHORITIESContinuedPage

Concluding Observations of the Committeeon the Elimination of Racial Discrimina-tion: United States of America, CERD/C/ USA/CO/6 (Feb. 2008) ............................... 32

Concluding Observations of the HumanRights Committee: United States of

America, U.N. Doc. CCPR/C/USA/CO/ 3/Rev.1 (Dec. 2006) ................................... 33

Universal Declaration of Human Rights, A/RES/217, Dec. 10, 1948, http://usgovinfo.about.com/bldechumanrights.htm .... 13, 14

OTHER AUTHORITIES

Blueprint Commission of the State of Florida, Getting Smart About Juvenile

Justice in Florida: Report of the Blue- print Commission (2008) .......................... 7

Federal Bureau of Investigation, Crime inthe United States 2008 (2009), http://

www.fbi.gov/ucr/cius2008/index.html ...... 5Florida Department of Juvenile Justice, Five Year Juvenile Delinquency Trendsand Conditions (2009), http://www.djj.state.fl.us/Research/Trends.html ............. 5

Andrew Grossman & Charles Stimson, Adult Time for Adult Crimes: Life With-out Parole for Juvenile Killers and Vio-lent Teens (2009) ....................................... 9

Steven Groves, The Inequities of the U.N.Committee on the Elimination of Racial

Discrimination , The Heritage Foundation(2008) ........................................................ 33


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International Womens Rights ActionWatch, Producing Shadow Reports to theCEDAW: A Procedural Guide (2009) ....... 31

James Kelly, The Matrix of Human RightsGovernance Networks , 9 Engage, Issue 1,118 (2008) .................................................. 29

Donald Kochan, Sovereignty and the American courts at the Cocktail Party of

International Law: The Dangers of Do-mestic Judicial Invocations of Foreignand International Law , 29 FordhamInternational Law Journal ___ (2006) ..... 28

Donald Kochan, The Political Economy of the Production of Customary Interna-tional Law: The Role of NGOs andUnited States Courts , 22 Berkeley Jour-nal of International Law, No. 2, 275(2004) ......................................................... 24, 31

Mattias Kumm, Constitutional Democracy

Encounters International Law: Terms of Engagement, New York University Public Law and Legal Theory Working Papers ,Paper 47 (2006) ......................................... 8, 28

John McGinnis, Foreign to Our Constitu-tion , 100 Northwestern University LawReview, No. 1, ___ (2006) .......................... 9, 19

John McGinnis & Ilya Somin, Should International Law be Part of Our Law? ,59 Stanford Law Review, No. 5, 1175(2007) ......................................................... 10, 11


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Helmut Sax & William Schabas, ACommentary on the United NationsConvention on the Rights of the Child:

Article 37 Prohibition of Torture, Death Penalty, Life Imprisonment and Depri-vation of Liberty (2006) ............................. 20

Jonathan Turley, Dualistic Values in the Age of International Jurisprudence , 44

Hastings L.J. 185 (1993) ........................... 22


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STATEMENT OF INTEREST Americans United for Life, Catholic Family and

Human Rights Institute, Center for Security Policy,Concerned Women for America, Family AdvocacyInternational, Family Watch International, Freedom

Alliance, Hudson Institute, Solidarity Center for Lawand Justice, The Cato Institute, The CompetitiveEnterprise Institute, The Sovereignty Network, andUnited Families International hereby request thatthis Court consider the present brief pursuant toSup. Ct. Rule 37.2(a) in support of Respondent. Theinterests of amici are described in detail in the

Appendix. 1

The consideration and adoption of state and federallaws and policies relating to the sentencing of juve-niles for the crimes that they commit is an essentialundertaking in a democratic society. The UnitedStates Congress and the overwhelming majority of states have adopted laws permitting juvenile offend-ers to be sentenced to life in prison without the possi-bility of parole. These laws reflect the will of the

people and were enacted after due consideration of the nature of, and threats posed by, juvenile criminalactivity in modern America, as well as the possibili-ties for the rehabilitation of juvenile offenders. Forthis reason, given their steadfast commitment to thedemocratic process, the rule of law, and nationalsovereignty, amici urge this Court, in deciding thiscase, not to consider the non-binding provisions of in-

1 Letters from all counsel consenting to its filing are beingsent with this brief to the Clerk of the Court. Counsel for a partydid not author this brief in whole or in part. No person or entity,other than amici curiae , their members, or their counsel made amonetary contribution to the preparation and submission of thisbrief.


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ternational human rights treaties or an insufficientlydefinite international norm regarding the sentencingof juveniles to life without parole.

SUMMARY OF ARGUMENT

In the present cases, the citizens of the State of Florida adopted laws through the democratic processthat permit the sentencing of juveniles to life inprison without the possibility of parole. By referenc-ing non-binding provisions of international humanrights treaties or an international norm regarding

the sentencing of juveniles to prison without thepossibility of parole as a basis for deciding whetherFlorida law violates the Eighth Amendments clauseprohibiting cruel and unusual punishments, thisCourt risks undermining the democratic process andthe rule of law and creating uncertainty about amultitude of U.S. domestic laws.

This Court should only allow international law tooverride domestic law in those cases where theformer has been ratified by the domestic politicalprocess. If this Court determines otherwise, then, indeciding whether to refer to a purported interna-tional norm as a basis for constitutional interpreta-tion, this Court should apply the same test it recentlyused to determine whether an international normprohibiting arbitrary arrest and detention could serveas a basis for creating a federal common law claimunder the Alien Tort Statute. Sosa v. Alvarez-

Machain , 542 U.S. 692 (2004). Specifically, this Courtshould determine whether the international normrelating to the sentencing of juveniles to life withoutparole is sufficiently definite to be used as a basis forconstitutional interpretation. This test, which wasused in by the Court in Sosa to determine whether, inthe absence of statutory authority for a cause of


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action, an international norm can be used to create afederal common law action, is no less appropriate inthe present cases, where this Court must decidewhether to use a purported international norm tooverturn existing domestic statutes that have beenenacted at the state and Federal levels.

Applying the defined with specificity test, there islittle doubt that no sufficiently definite internationalnorm exists that can serve as a basis for determiningthat the Florida juvenile life without parolesentencing law violates the Eighth Amendment. Theinternational norm relating to sentencing juveniles tolife without parole has not attained the status of customary law because: 1) there is only general,high-level authority cited for the norm; 2) theimplications of enforcing such a broad norm arebreathtaking; 3) enforcement of the norm wouldsupplant United States domestic laws; and 4) there isa lack of a factual basis for determining which

juvenile life without parole policies violate the law of nations with the certainty comparable to thatafforded by Blackstones three common law offenses(violations of safe conducts, infringement of therights of ambassadors, and piracy).

If this Court relies on a non-binding provision of aninternational treaty or an insufficiently definiteinternational norm to overturn Florida juvenile lifewithout parole sentencing laws and, consequently,comparable Federal law and laws in over 40 states,serious questions will arise regarding the long-term

viability of the democratic process and rule of law. Additionally, uncertainty will be created about a

multitude of other U.S. domestic laws relating tohuman rights.


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ARGUMENTI. R EFERRING TO N ON -B INDING T REATY

P ROVISIONS OR AN I NSUFFICIENTLY D EFINITEI NTERNATIONAL N ORM AS A B ASIS FORD ETERMINING WHETHER F LORIDA S S EN -TENCING OF J UVENILES TO L IFE W ITHOUTP AROLE V IOLATES T HE E IGHTH A MENDMENTW ILL U NDERMINE T HE D EMOCRATIC P ROCESS

AND R ULE OF L AW

The citizens of the State of Florida have adopted

laws through the democratic process that permit thesentencing of juveniles to life in prison without thepossibility of parole. They did so after taking intoconsideration trends in juvenile crime and afterweighing different options regarding the incarcera-tion of juveniles and the likelihood for rehabilitationthat would enable them to serve as functioningcitizens in their later lives.

Although it is important for this Court to evaluatewhether Florida juvenile sentencing laws violate theEighth Amendments clause prohibiting cruel andunusual punishments, this Court should refrain fromconsidering, citing, or otherwise referencing non-binding provisions of international treaties or aninsufficiently definite international norm as a basisfor its decision. Doing so would undermine the demo-cratic process in Florida and across the United Statesand create a great deal of uncertainty regarding thecontinued validity of laws relating to a multitude of human rights.


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A. Floridas Public Officials, its JuvenileJustice Advocacy Groups, and Con-cerned Florida Citizens Should BePermitted to Continue to Utilize theDemocratic Process to Address theProblem of Increased Youth Violencein Their State.

Juvenile crime is a significant problem in theUnited States. In 2008, persons under the age of 18committed 11.9% of the 459,553 violent crimes and18.4% of the 1,306,464 property crimes cleared by lawenforcement officials. Federal Bureau of Investiga-tion, Table 28. In Florida, murder/manslaughter re-ferrals in the case of juvenile offenses increased 55%,from 84 referrals during fiscal year 2003-2004 to 130referrals during fiscal year 2007-2008. During thesame period, attempted murder/attempted man-slaughter referrals increased 50%, from 46 to 69 andarmed robbery referrals increased 103%, from 708 to1,434. Florida Department of Juvenile Justice 1.

Despite these discouraging statistics, since 1994,

Florida citizens have dutifully examined their juve-nile justice system and pursued necessary reforms.Florida elected officials, state juvenile justice offi-cials, business leaders, juvenile justice policy advo-cates, human rights advocates, education leaders,youth representatives, parents of detained juveniles,and victims rights organizations have participated inthese democratic deliberations.

The Juvenile Justice Act of 1994 createdthe Florida Department of Juvenile Justice,which is responsible for planning and man-aging all programs and services in the juve-nile justice system.


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In 1994, the Florida Juvenile Justice Associa-tion was created. The Association promotespublic awareness and education on juvenile

justice issues; contributes to the developmentof public policy regarding juvenile justiceissues; supports evaluation and research of

juvenile justice issues; and provides training,technical assistance and consultation to Asso-ciation members and related parties.

Since 1999, the National Council of Juvenileand Family Court Judges (NCJFCJ) hasconducted 74 training sessions in Floridafor more than 12,500 judges, magistrates,commissioners, attorneys, and other juvenileand family court-related professionals. Thetraining activities were undertaken by theNCJFCJ over the past ten years to supportand enhance widespread systemic reformsand facilitate the achievement of better out-comes for Floridas children and families. Asof 2009, NCJFCJ has 64 members in Floridaout of a nationwide membership of over 1,900.

In 2000, the Florida Juvenile Justice Founda-tion, Inc. was formed to serve as a DirectSupport Organization for the Florida Depart-ment of Juvenile Justice. Among other things,the Foundation fosters collaboration amongbusiness people, community members, par-ents, youths and Floridas juvenile justicesystem.

In July 2007, Florida Governor Charlie Cristauthorized creation of a Blueprint Commis-sion as a time-limited workgroup chargedwith developing recommendations to reformFloridas juvenile justice system. The Blue-


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print Commissions 25 members traveled thestate, held public hearings, and receivedtestimony from a host of stakeholderscommunity leaders, law enforcement andcourt officers, representatives of the publicschool system, health and mental healthofficials, parents, youth, advocates, nationalexperts in juvenile justice, and departmentstaff.

In January 2008, after conducting a thoroughexamination of the state of juvenile justice inFlorida, the Blueprint Commission producedits report, Getting Smart About Juvenile Jus-tice in Florida . Working with expert advisors,the members of the Commission, consisting of representatives from law enforcement, civiland human rights, education, juvenile justice,and business organizations, identified 52recommendations for change, organized underseven guiding principles and 12 key goalsdesigned to be implemented over multipleyears.

During the 2009 session of the Florida Houseof Representatives, several representativesintroduced House Bill 757, the Second Chancefor Children in Prison Act of 2009. The Act,which was never passed out of committee,provided that an offender 15 years of age oryounger who is sentenced to life or more than10 years in prison is eligible for parole if he orshe has been incarcerated for a minimumperiod and has not previously been convicted

or adjudicated of, or had adjudication with-held, for certain offenses.


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Perhaps, after further deliberation among Floridacitizens and their duly elected representatives, HB757 will become law and, perhaps, in the future, thesentencing of juveniles to life without parole will nolonger be a part of the Florida legal landscape. It isalso possible that Floridas elected officials serving inthe United States House of Representatives willchoose to support H.R. 2289, the Juvenile Justice

Accountability and Improvement Act of 2009. H.R.2289, introduced on May 6, 2009, is designed to es-tablish a meaningful opportunity for parole or similar

release for juvenile offenders sentenced to life inprison.

This Court should respect the democratic processas it is unfolding in Florida, other states, and in theUnited States Congress. It should resist the urge torefer to the provisions of non-binding internationaltreaties or an insufficiently definite internationalnorm to overturn a majority of state and federal lawsrelating to the sentencing of juveniles to life withoutparole. State officials enacted these laws to address

valid concerns regarding increases in juvenile offensesand are reviewing their merit in light of sentencingoutcomes. When it comes to fashioning juvenile

justice solutions with an eye toward human rightsconcerns, there is no reason to think that nationalinstitutions in a constitutional democracy are unfit toultimately and authoritatively determine these rulesfor themselves. Kumm 23-24.

Florida has unique historic, public safety, legal,development, cultural, economic, political, and socialconcerns relating to the issues of youth violence and

juvenile justice. There have been, and will be, regularopportunities for meaningful participation among the various stakeholders involved in the issue of juvenile


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B. Neither Non-Binding Treaty Provi-sions Nor an Insufficiently Definite In-ternational Norm Regarding the Sen-tencing of Juveniles to Life WithoutParole Should Serve as a Basis for De-termining Whether Florida JuvenileLife Without Parole Sentencing Laws

Violate the Eighth Amendment to theUnited States Constitution.

This Court should only allow international law tooverride domestic law in those cases where theformer has been ratified by the domestic politicalprocess. Under a modern conception of internationalcustom, many scholars embrace a methodology thatpermits substantial human rights norms to beencompassed within customary international law.Instead of requiring that nation-states actuallyengage in a practice, they substitute statements bynation-states that give the norms verbal endorse-ment. These include resolutions of the General

Assembly of the United Nations and multilateraltreaties. Under the modern conception, customaryinternational law suffers from a democracy deficitand is therefore likely to produce lower qualitynorms than a democratic domestic political process.McGinnis and Somin 1201.

This democracy deficit is created by: 1) the largerole played by unrepresentative and unaccountablepublicists, including elite international law profes-sors and non-governmental organization leadersin the United States, who determine what level of practice is required to support an international norm;

2) the non-democratic governments that participatein the negotiation of international human rightstreaties; 3) the failure of democratic nations to


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voluntarily incorporate the international norms todisplace their domestic laws; and 4) the inability of uninformed citizens to monitor or control the individ-uals and institutions responsible for internationallaw fabrication, which exacerbates the potential forinterest group influence and manipulation by elites.

Id . 1202-1211.

To avoid this democracy deficit, this Court shouldleave it to the political branches to decide whether toincorporate international law into domestic lawthrough the ordinary legislative processes that ensuredemocratic control over lawmaking. In holding openthe possibility that judges may create rights whereCongress has not authorized them to do so, the Courtcountenances judicial occupation of a domain thatbelongs to the peoples representatives. Sosa v.

Alvarez-Machain , 542 U.S. 692, 747 (2004) (Scalia, J.,concurring in part and concurring in the judgment).

If, however, this Court is inclined to rely on inter-national law as a basis for deciding these cases, itshould use the test recently employed by the Court in

Sosa to determine whether to recognize privateclaims under federal common law for violations of aninternational norm.

In Sosa , the Court explained that it is limited in itsability to recognize international law norms to createsubstantive rights that can give rise to private claimsunder federal law:

We have no congressional mandate to seek outand define new and debatable violations of thelaw of nations, and modern indications of

congressional understanding of the judicial rolein the field have not affirmatively encouragedgreater judicial creativity. . . . Several times,


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actual democratic discourse, deliberation, and devel-opment.

Under the defined with specificity test, the Courtfirst considers whether the United States is obligatedto respect the international norm under any applica-ble international human rights declaration or treaty.If a declaration consists only of a statement of prin-ciples, no such obligation exists. If, in ratifying atreaty, the United States made reservations thatmake the international norm inapplicable, no suchobligation exists. In the absence of any bindingdeclaration or treaty provision, there is no evidencethat the norm has been adopted through the demo-cratic process as manifested in the approval of theU.S. Senate by at least two-thirds of its members. Insuch cases, the Court then considers whether,regardless of the lack of a binding declaration ortreaty provision, the international norm has attainedthe status of binding customary international law. If the international norm consists of a general prohibi-tion with limited specificity as to its content, author-ity must be cited that a rule so broad has the statusof a binding customary norm today. Id ., at 736.

In Sosa , the Court considered whether the interna-tional norm prohibiting arbitrary arrest and deten-tion was sufficiently definite to support a cause of action under the Alien Tort Statute. First, the Courtrejected the claim that two international humanrights agreements to which the United States is aparty provided definite content regarding the scope of the norm. It dismissed as having little utility theprohibition against arbitrary arrest contained in the

Universal Declaration of Human Rights (the Decla-ration) and a similar prohibition contained in theInternational Covenant on Civil and Political Rights


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(the ICCPR). The Court determined that theDeclaration does not of its own force impose obliga-tions as a matter of international law, insteadsharing Eleanor Roosevelts view that the Declara-tion constitutes a statement of principles . . . settingup a common standard of achievement for all peoplesand nations. Id ., at 734 (citation omitted). As forthe ICCPR, the Court determined that, although thetreaty binds the United States as a matter of interna-tional law, the United States ratified the ICCPR onthe express understanding that it was not self-

executing and so did not itself create obligationsenforceable in the federal courts. Id ., at 735. As aresult, the Court rejected the assertion that theDeclaration and ICCPR themselves established therelevant and applicable rule of international law.

Similarly, in the present case, the United Statesreservations to the ICCPR effectively counter anyclaims that specific articles of the ICCPR provide thedefinite content necessary to prohibit the sentencingof juveniles to life without parole, a right not specifi-cally contained in the ICCPR.

Article 7 of the ICCPR contains a general prohibi-tion on cruel, inhuman or degrading treatment orpunishment without defining or further elaboratingupon the meaning of the phrase. As it turns out, theUnited States submitted a reservation to Article 7specifying that the United States would only beconsidered bound by that provision to the extentthat cruel, inhuman or degrading treatment orpunishment means the cruel and unusual treatmentor punishment prohibited by the Fifth, Eighth, and/or

Fourteenth Amendments to the Constitution of theUnited States. As a result, Article 7 (to the extentexecuted) cannot impose any additional obligations


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on the United States beyond those already requiredby the Fifth, Eighth, and Fourteenth Amendments,none of which has been interpreted to prohibitsentencing juveniles to life without parole.

Whether Article 7s prohibition on cruel, inhumanor degrading treatment or punishment wouldencompass the sentencing of a juvenile to life withoutparole remains an open question, a question that isdebated every four years when the U.S. submits itsreport to the United Nations Human Rights Commit-tee, which oversees the implementation of theICCPR. As concerns the domestic law of the UnitedStates, however, the question is moot because of the reservation and the treatys non-self-executingstatus.

Claims that Articles 10 and 14 of the ICCPR prohi-bit such sentences are likewise unsupported. Article10(3), which addresses permissible conditions of confinement, declares, The penitentiary system shallcomprise treatment of prisoners the essential aim of which shall be their reformation and social rehabili-

tation. Article 14 does not deal with sentencing orconditions of confinement, but rather addressescriminal procedure. Specifically, regarding juveniles,it states, In the case of juvenile persons, the procedureshall be such as will take account of their age and thedesirability of promoting their rehabilitation.

As with Article 7, the United States entered aspecific reservation regarding Articles 10 and 14,expressly reserving the right, in exceptional cir-cumstances, to treat juveniles as adults, notwith-standing paragraphs 2(b) and 3 of article 10 andparagraph 4 of article 14. Moreover, to makeclear to the Human Rights Committee and the otherICCPR States Parties regarding U.S. views concern-


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ing incarceration, the United States entered a sepa-rate understanding that states: The United Statesfurther understands that paragraph 3 of Article 10does not diminish the goals of punishment, deter-rence, and incapacitation as additional legitimatepurposes for a penitentiary system.

Read together, these reservations and under-standings eviscerate the argument that either Article10 or Article 14 obliges the United States to ceasesentencing juveniles to life imprisonment withoutparole. Notwithstanding any broad interpretation of the text of these articles, the United States reserva-tion contemplates that juveniles may be tried andsentenced the same as adults under exceptionalcircumstances, presumably for heinous crimes suchas murder and other violent felonies, and that theymay be imprisoned for the purposes of punishment,deterrence, and incapacitation, all of which aresignificantly furthered by the sentence of life withoutparole.

In Sosa , once the Court established that the United

States was not obligated to adhere to any prohibitionagainst arbitrary arrest contained in an internationaldeclaration or treaty to which it was a State Party,the Court considered whether the prohibition of arbitrary arrest had independently attained thestatus of binding customary international law. Indoing so, it focused on whether the norm constituteda binding customary rule with specificity as tocontent, or, to the contrary, merely expressed anaspiration that this Court could not rely upon in[c]reating a private cause of action to further that

aspiration . . . . Id ., at 738.In Sosa , the respondent Alvarez invoked a general

prohibition of arbitrary detention defined as offi-


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cially sanctioned action exceeding positive authoriza-tion to detain under the domestic law of somegovernment, regardless of the circumstances. Forseveral reasons, the Court determined that such anorm was too broad and indefinite to attain thestatus of binding customary law. It focused on thefact that only high-level general authority was citedas the basis for the norm; the breathtaking implica-tions of enforcing the norm; the fact that enforcementof the norm would supplant domestic law; and thelack of a factual basis for determining which policies

cross the line into an arbitrary arrest with thecertainty afforded by the three common law offensesof violations of safe conducts, infringement of therights of ambassadors, and piracy.

First, the Court noted that Alvarez cited littleauthority that a rule against arbitrary arrest has thestatus of a binding customary norm, explaining thata survey of national constitutions on which he reliedas evidencing adherence to the norm does show thatmany nations recognize a norm against arbitrarydetention, but that consensus is at a high level of generality. Id ., at 736 n.27. If, instead of a surveypertaining to national constitutions, Alvarez hadcited a survey of actual laws passed at the state levelthrough democratic consideration of the issue, theCourt may have found a more definite norm that roseto the level of customary international law.

Second, the Court considered the implications of ageneral prohibition on arbitrary arrest, regardless of the circumstances of the arrest. The Court notedthat the rule proposed by Alvarez would support a

cause of action in federal court for any arrest,anywhere in the world, unauthorized by the law of the jurisdiction in which it took place, and would


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create a cause of action for any seizure of an alien in violation of the Fourth Amendment . . . . Id ., at 736.

Third, the Court considered the effect that adoptionof the norm would have on United States domesticlaw relating to arbitrary arrest, noting that itwould create a cause of action supplanting theactions under . . . 42 U.S.C. 1983 and Bivens v.

Six Unknown Fed. Narcotics Agents . . . that nowprovides remedies for such violations. Id ., at 736-37.Such a broad rule would create an action in federalcourt for arrests made by state officers who simplyexceed their authority; and for the violation of anylimit that the law of any country might place on theauthority of its own officers to arrest.

Finally, the Court explained that [a]ny credibleinvocation of an international norm that the civilizedworld accepts as binding customary international lawrequires a factual basis beyond relatively brief deten-tion in excess of positive authority. Id ., at 737. Themere reference to a general norm against arbitraryarrest provides no factual basis for determining

which policies of prolonged arbitrary detentions areso bad that those who enforce them become enemiesof the human race. Ibid . In short, the norm had notbeen developed through practical experiences consi-dered and addressed within the democratic process.In this regard, it is an especially formidable task for

judges to consider the factual underpinnings of aninternational norm.

To understand whether a foreign law casts doubton the wisdom of our own law, one would have toundertake a systematic comparative enterpriseof the two different cultures and legal systems todetermine whether the other legal culture hadsufficiently good methods of rule generation, and


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whether the systems were sufficiently alike thatit made sense to conclude that the differencebetween their rules and ours on an issue castdoubt on the beneficience of ours. The questionis not strictly a legal one but demands compara-tive cultural sociology as well as comparativelaw.

McGinnis 325.

Because, as was the case in Sosa with respect toarbitrary arrest, in the present case, the United

States is not bound by any limits on the sentencing of juveniles to life without parole that is contained in aninternational declaration or treaty to which it is aparty, it is necessary to determine whether such aninternational norm has been defined with the level of specificity required by the Court to be consideredcustomary international law. Just as the interna-tional norm prohibiting arbitrary arrest was notsufficiently definite to attain the status of a bindingcustomary norm that could be used to create a federalremedy, the international norm relating to the

sentencing of juveniles to life without parole is notsufficiently definite to attain the status of a bindingcustomary norm that can be used by this Court tointerpret whether such a sentence violates theEighth Amendment.

Application of the same test used by the Court in Sosa supports that conclusion. In essence, the inter-national norm prohibiting the sentencing of juvenilesto life without parole has not attained the status of binding customary law because: 1) there is only gen-eral, high-level authority cited for the norm; 2) theimplications of enforcing such a broad norm arebreathtaking; 3) enforcement of the norm wouldsupplant United States domestic laws; and 4) there is


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a lack of a factual basis for determining which juve-nile life without parole policies violate the law of nations with the certainty comparable to thatafforded by Blackstones three common law offenses.

First, there is only general, high-level authorityfor the international norm relating to the sentencingof juveniles to life without parole. The primaryauthority for the norm is contained in Article 37(a) of the United Nations Convention on the Rights of theChild (CRC), a treaty to which the United States isnot a party.

Article 37(a) of the CRC provides that:

States Parties shall ensure that:

(a) No child shall be subjected to torture or othercruel, inhuman or degrading treatment orpunishment. Neither capital punishment norlife imprisonment without possibility of release shall be imposed for offences commit-ted by persons below eighteen years of age.

UN Convention on the Rights of the Child, Art. 37(a).

During the drafting stages of Article 37(a), in late1988, a special Working Party session of the Com-mission on Human Rights reported that therewas a lack of consensus on whether Article 37(a)should contain a blanket prohibition on both capitalpunishment and life imprisonment without thepossibility of release. As explained by a leadingcommentary on Article 37(a), although, at the time of the report, the prohibition of torture and of capitalpunishment for juveniles could hardly be contested asnorms of existing human rights treaty law, the

reference to life imprisonment was very much a mat-ter of progressive development of the law, and no priortext existed on this subject. Sax and Schabas 10.


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democratic process. Such an action would notcomport with the traditional view of internationallaw within the U.S. legal system. International lawis a system of treaties, agreements, and customscreated in large part outside this representativesystem, untested by the pluralistic forces that drivethe legislative and executive branches. The use of international sources introduces new players andnew forms of legislation into the carefully balancedMadisonian system. Turley 193.

Finally, there is a lack of a factual basis for deter-mining which juvenile life without parole policies

violate the law of nations with the certainty compa-rable to that afforded by Blackstones three commonlaw offenses of violations of safe conducts, infringe-ment of the rights of ambassadors, and piracy.Obviously, for a norm relating to the sentencing of

juveniles to life without parole to attain a level of definiteness that would give rise to customary inter-national law, consideration would have to be given atthe national level to the question of which crimescommitted by juvenile offenders warrant suchsentencing. This is the factual determination inwhich this Court is engaged in the present cases and,in deciding these cases, this Court should not rely inwhole or in part on an international norm that hasnot itself been developed on a similar factual basis.

In short, the purported international norm prohi-biting the sentencing of juveniles to life withoutparole suffers the same defect expressed by the Courtin relation to the purported international normadvanced by Alvarez in Sosa ; in the present, imper-

fect world, it expresses an aspiration that exceedsany binding customary rule having the specificity werequire. Id ., at 738.


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By relying on an insufficiently definite interna-tional norm as a basis for determining whether the juvenile life without parole sentence violates theEighth Amendment, this Court would be condoningan outcome similar to the one specifically rejected in

Sosa the recognition of a federal common law causeof action based on an international norm thatwas created at a general, high-level; that hasbroad implications for American jurisprudence; thatsupplants domestic laws enacted through the demo-cratic process; and that has not been generated with

consideration for the facts which would dictate amore specific, narrowly-tailored policy.

Even worse, in the present cases, instead of merelycreating a federal common law action where there isno existing statute, this Court would be using aninsufficiently definite international norm to overturnexisting statutes.

II. R EFERRING TO N ON -B INDING T REATYP ROVISIONS OR AN I NSUFFICIENTLY D EFINITEI NTERNATIONAL N ORM AS A B ASIS FOR

D ETERMINING WHETHER F LORIDA S S EN -TENCING OF J UVENILES TO L IFE W ITHOUTP AROLE V IOLATES T HE E IGHTH A MENDMENTW ILL C REATE U NCERTAINTY A BOUT AM ULTITUDE OF U.S. D OMESTIC L AWS

The Court has made it clear that the determina-tion of whether a norm is sufficiently definite tosupport a cause of action should (and, indeed, inevit-ably must) involve an element of judgment about thepractical consequences of making that norm availableto litigants in the federal courts. Sosa , at 732-33(footnote omitted). Likewise, the determination of whether a non-binding international treaty provisionor customary international law norm is sufficiently


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definite to be referred to by this Court as a basis foroverturning a majority of state and Federal juvenilelife without parole sentencing laws must involve anelement of judgment about the practical conse-quences of recognizing the norm for that purpose.

By referring to a non-binding treaty provision oran insufficiently definite international norm as abasis for interpreting the Eighth Amendment andoverturning a majority of state and Federal juvenilelife without parole sentencing laws, this Court wouldcreate a great deal of uncertainty about many U.S.domestic laws involving human rights. Many inter-national human rights treaties contain general,undefined aspirations, not specific, detailed obliga-tions. The language of such treaties is far less precisethan the language that any State party wouldcontemplate using to draft a statute.

Parties in the past often drafted customaryinternational law outputs without an under-standing or expectation that it could createlegally enforceable standards. Yet NGOs can

now use broad aspirational commitments as ameans of imposing legal duties. Second, unlessand until adversely affected individuals becomeaware of potential liabilities, NGOs can continueto lobby for broad customary law outputs.

Kochan 2004, 275.

This is why, unless two-thirds of the U.S. Senategives its consent to ratification of a treaty withthe necessary reservations, understandings, anddeclarations, it does not become binding on the

United States. Also, unless a treaty is self-executing,additional implementing legislation passed by Con-


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gress and signed by the President is required to makethe treaty provisions actionable at law.

For instance, the CRC, a treaty that has noteven been considered for advice and consent bythe U.S. Senate, covers a wide range of issuesrelating to purported civil, political, economic, socialand cultural rights of children.

The rights listed in the CRC include, but are notlimited to: the right to life; the right to preserve onesidentity, including nationality; the right to leave

ones own country and to enter another country forthe purpose of being reunited with ones parents; theright to freely express ones views and the opportu-nity to be heard in judicial or administrativeproceedings; the right to expression, including thefreedom to seek, receive and impart information andideas of all kinds, regardless of frontiers; the rightto freedom of thought, conscience, and religion; theright to freedom of association and assembly; theright to privacy; the right to access to informationand material from a diversity of national and inter-

national sources; the right to adoption; the right to asafe family environment; the right to enjoy thehighest attainable standard of health; the right to anadequate standard of living; the right to education;the right to practice ones own religion and use onesown language; the right to rest, leisure, and play; theright to be protected from economic exploitation; theright not to be subjected to torture or other cruel,inhuman or degrading treatment or punishment; andthe right not to suffer capital punishment or lifeimprisonment without possibility of release.

If this Court refers to Article 37(a) of the CRC tosupport its decision to overturn the juvenilesentencing laws of Florida and over 40 other U.S.


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states, in subsequent cases, will this Court overturnfederal restrictions on immigration by reference to achilds right under the CRC to leave his or hercountry and enter another country to be reunitedwith his or her parents? Require the teaching of comparative religion in public schools by referenceto the right under the CRC to seek and receiveinformation and ideas of all kinds? Overturn statelaws requiring a minor to secure parental consentprior to having an abortion by reference to the CRCsright to privacy for children? Overturn state bans on

the adoption of children by same-sex couples byreference to the CRCs right to adoption? Mandatethe unlimited provision of government-funded healthcare to all children by reference to the CRCs right tohealth care? Require state and local governments toincrease their spending on public schools by referenceto the CRCs right to education? Require publicschools to educate children in their native languagesby reference to the CRCs requirement that childrenbe permitted to use their own language?

Although the terms of the CRC do not authorizethem to do so, the 18 independent expert members of the Committee on the Rights of the Child interpretprovisions of the CRC and publish non-bindingGeneral Comments suggesting the substance of the

various rights. The areas covered by the Committeespublished General Comments include, but are notlimited to, the aims of education; HIV/AIDS and therights of the child; adolescent health; implementingchilds rights in early childhood; the right of the childto protection from corporal punishment and otherdegrading forms of punishment; the rights of child-ren with disabilities; childrens rights in juvenile

justice; the rights of indigenous children; and theright of the child to be heard.


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The General Comments are derived in part fromthe Committees observations and conclusions madein connection with the reports that States partiesto the CRC must file with the Committee everyfive years. Based on documentation submitted byrelevant United Nations bodies and specialized agen-cies and non-governmental organizations that arefamiliar with childrens rights issues in the countryunder review, a Committee working group deter-mines the most important issues to be discussed withthe representatives of the States. During their

regular sessions, the Committee examines the Statereports together with government representatives.The Committee then publishes its concerns and rec-ommendations in concluding observations, in whichit sets out whether or not the reporting State wasacting in conformity with its treaty obligations.The reporting State may provide a response to theCommittees concluding observations. In the Statesreport five years later, the Committee expects thereporting State to provide follow-up informationregarding the problems highlighted in the previous

concluding observations.Thus, between the list of rights contained in the

provisions of the CRC, the General Comments prom-ulgated by the Committee, and the Committeesconcluding observations on States reports, there is asignificant body of human rights resource materialsto which this Court could arguably refer to as a basisfor its decisions to overturn U.S. laws and policiesrelating to childrens rights. But should it?

Some claim that problems arise when treaties

create institutions in which unelected officials inconjunction with other actors may create new obliga-tions, which, at the time the treaty was signed, were


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impossible to foresee. Kumm 14. At the time thatthe CRC was adopted in 1989, was it foreseeable thatthe 18 international experts of what was only intendedto be a technical monitoring committee would examinethe substance of the CRCs provisions; interpret them(with the assistance of unelected and unaccountableUnited Nations officials and representatives of non-governmental organizations); publish regulation-likeGeneral Comments defining the scope of the rightsand explaining the manner in which States partiesshould implement them; audit the domestic laws

and policies of States parties every five years todetermine whether they are in compliance; publisha concluding report with observations about thestatus of childrens rights in the country; encouragenon-governmental organizations to use that report toshame even the most progressive governments intofunding the immediate realization of every right of the child imaginable; and embark on a systemiccampaign to convince national, regional, andinternational court judges to cite the rights of thechild and General Comments as authority for their

decisions?Unfortunately, the provisions of the CRC and the

dictates of the Committee on the Rights of the Childare only two of the many friends at the cocktailparty to which this Court might look if it intendsto globalize the United States Constitution. 2

2 Judge Harold Leventhal used to describe the use of

legislative history as the equivalent of entering a crowdedcocktail party and looking over the heads of the guests for onesfriends. Conroy v. Aniskoff , 507 U.S. 511, 519 (1993), Scalia, J.concurring in the judgment. See Kochan 2006, 542-546.

Thereare other international human rights treaties,institutions, and organizations that, with the CRC


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and the Committee, form a matrix of human rightsgovernance networks to which the United Statescould become subject should this Court continue itsrecent practice of referring to the provisions of suchtreaties as a basis for its decisions. See Kelly.

The International Covenant on Economic, Socialand Cultural Rights (ICESCR), to which the UnitedStates is not a party, contains many established,emerging, and undefined norms that, if recognized bythe Court, would impact existing U.S. domestic lawsand policies, including, but not limited to, purportednorms such as: the right to work; the right to fairwages; the right to join a union; the right to socialsecurity; the right to an adequate standard of living,including food, clothing and housing; the right to thehighest attainable standard of physical and mentalhealth; the right to education; and the right tothe benefits of scientific progress. In addition, theCommittee on Economic, Social and Cultural Rightshas promulgated a General Comment setting forththe nature and scope of a right to water, though sucha right is not expressly contained in the ICESCR.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to whichthe United States is not a party, contains manyworthy, though broad, open-ended, and undefined,aspirations regarding the rights of women that, if recognized and enforced by the Court, would directlyimpact existing U.S. domestic laws and policies.These include, but are not limited to: that theprinciple of the equality of men and women be embo-died in national constitutions or other appropriate

legislation; that States take all appropriate measuresto ensure the full development and advancement of women, including legislation, in all fields, in partic-


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ular the political, social, economic and cultural fields;that States take all appropriate measures to modifythe social and cultural patterns of conduct of menand women, with a view to eliminating prejudices,customary practices, and stereotypes regarding menand women; and that States take all appropriatemeasures to ensure that there is no discriminationagainst women and equality between men andwomen in the fields of political life and public service(both domestic and international), education, andemployment, health care, and all other areas of

economic and social life.For the express purpose of considering the progress

made in the implementation of CEDAW, the treatyprovided for the creation of the Committee on theElimination of Discrimination against Women (theCEDAW Committee). As has been the case with allhuman rights treaty bodies, the CEDAW Committeehas morphed into a quasi-rule making body, whichhas produced 26 General Recommendations againstwhich the performance of States parties on domesticlaws and policies involving womens rights is meas-ured to determine compliance with CEDAW. Statesparties to CEDAW are required to report to theCEDAW Committee on measures that they havetaken to implement the provisions of CEDAW intotheir domestic laws and policies. The CEDAWCommittee produces a final report in which, aftercommending the State party for whatever positivesteps it has taken in regards to CEDAW, the expertson the CEDAW Committee detail the various ways inwhich the State party is failing to honor the CEDAWprovisions. Non-governmental organizations, whoassist the CEDAW Committee members with theirinvestigation of the State party and who submitshadow reports detailing alleged shortcomings of


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the State party, are able to use the CEDAW Commit-tees final report to publicly shame the State partyand raise money for the NGOs next foray into thebuilding of customary international law. Interna-tional Womens Rights Action Watch 1. This enablesNGOs to avoid messy, and often unsuccessful,attempts to influence constitutional and legislativechanges at the state and national level throughdemocratic means.

Of course, in the eyes of some NGOs, to have theCourt conveniently reference a human rights treaty(any such treaty) as a basis for one of its decisions isa victory of incalculable value, regardless of whetherthe United States is a party to the treaty.

NGOs, like other entities, act as interest groupsfocused on maximizing private benefits. Inseeking the production of customary interna-tional law outputs for use in future litigation,NGOs will not necessarily be seeking specificoutcomes from each output; but rather, theseoutputs can result in the production of tools for

use in other forums.Kochan 2004, 263.

The reporting processes relating to two interna-tional human rights treaties to which the UnitedStates is a party evidence the manner in which treatybody committees and NGOs partner to influence U.S.civil and human rights laws and policies outside theregular channels for democratic participation. Thesetwo treaties are the International Convention on theElimination of all Forms of Racial Discrimination

(ICERD) and the ICCPR.The Committee on the Elimination of Racial

Discrimination (CERD) is responsible for receiving


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and considering periodic State party reports underICERD. In its February 2008 report regarding theUnited States, the CERD set forth a list of recom-mendations that, if adopted or otherwise recognizedby the Court, would result in the de facto transfer tothe CERD of supervisory authority over state andfederal responsibilities and measures for addressingracial discrimination in both public and privatesettings.

In its 2008 report, the CERD recommended thatthe United States: change its definition of racialdiscrimination used in federal and state legislation toinclude indirect, or de facto , discrimination; broadenthe protection afforded by the law against discrimi-natory acts by private individuals, groups or organi-zations; establish an independent human rights insti-tution; strengthen its efforts to combat racial profil-ing and adopt federal legislation to that end; notdiscriminate against non-citizens, particularly in thefight against terrorism; adopt and implement federaland state legislation to combat discrimination inhousing; enact legislation to enable school districts topromote school integration; prohibit the expression of all ideas based upon racial superiority or hatred;design and implement strategies for the eliminationof structural racial discrimination in the criminal jus-tice system; discontinue the sentencing of juveniles tolife without parole; allocate sufficient resources toprovide for the legal representation of indigentpersons; adopt all necessary measures, including amoratorium, to ensure that the death penalty is notimposed as a result of racial bias on the part of prose-cutors, judges, juries, and lawyers; report to theCERD on the results of measures taken to preventand punish violence and abuse against womenbelonging to minorities; automatically restore the


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right to vote of those who have completed criminalsentences; explore ways to hold transnational corpo-rations registered in the United States accountablefor negatively impacting the rights of indigenouspeoples outside the United States; report to theCERD on the results of measures taken to remedyobstacles that prevent or limit the access of minori-ties to adequate health care; continue to addressracial disparities in sexual and reproductive health,including access to adequate contraception andfamily planning; and adopt all appropriate measures

to reduce the persistent achievement gap betweenminority and white students in education. See Groves.

Meanwhile, the human rights regime under theICCPR has resulted in an unwarranted and unautho-rized intrusion into United States domestic andforeign policy. In its December 2006 concludingobservations regarding the United States, the ICCPRsHuman Rights Committee (HRC) requested theUnited States to provide information and take actionregarding a number of issues. Most of the HRCsrequests for follow-up information concerned mattersoutside the territory of the United States, eventhough the ICCPR explicitly does not apply outsidethe territory of a State party. Nevertheless, theGovernment of the United States submitted commentsto the HRC addressing the matters raised in theHRCs concluding observations, primarily mattersrelating to the United States engagement in anarmed conflict with al Qaida, the Taliban, and theirsupporters.

The HRCs investigation of matters outside the

territory of the United States, involving armedconflict with terrorists, provides compelling evidencein support of the U.S. Senates wisdom in having rati-


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fied the ICCPR with five reservations, five under-standings, and four declarations, and in having notratified other international human rights conven-tions. Fortuitously, the United States declared thatthe provisions of Articles 1 through 27 of the ICCPRare not self-executing, thereby enabling the citizensof the United States and their elected officials torespond to the unforeseeable war against globalterrorism within the confines of the United StatesConstitution and duly enacted federal legislation, andwithout the interference of unelected and unaccount-

able international committees.In sum, by referencing Article 37(a) of the Conven-

tion on the Rights of the Child or provisions of otherinternational human rights treaties as a basis for itsdecision in these cases, this Court would be under-mining the ability of the United States to govern itsinternal affairs democratically, without the involve-ment of unelected and unaccountable expertsworking with United Nations treaty body committeesin Geneva. When, at any time, a majority of theJustices of this Court can refer to a provision of anon-binding international human rights treaty or aninsufficiently definite international norm and therebyend all state and national democratic discourse, deli-beration, and decision-making in regards to ultimatequestions of civil, political, economic, social, andcultural rights, the democratic process and the rule of law are in great jeopardy.


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III. C ONCLUSION For the foregoing reasons, this Court should affirm

the judgments of the Florida First District Court of Appeal.

Respectfully submitted,

STEVEN GROVES THE SOVEREIGNTY N ETWORK 915 E St NWWashington, DC 20004

* Counsel of Record

J AMES P. K ELLY , III*SOLIDARITY CENTER FOR

L AW AND J USTICE , P.C.Five Concourse ParkwaySuite 200

Atlanta, Georgia 30328(678) 231-1209

Counsel for Amici Curiae


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2a

Concerned Women for America is a non-profitpublic policy organization representing 500,000 peoplenationwide. One of its core issues is to protect

Americas sovereignty from the unconstitutionalapplication of international law, treaties or norms.Wendy Wright is President of CWA.

Family Advocacy International is a non-profitorganization with substantial experience in protectingand promoting the family as the fundamental unit of society in the United Nations and related interna-tional venues. E. Douglas Clark is the President of FAI.

Family Watch International was founded in1999 and is a nonprofit, international organizationwith members and supporters in over 100 countries.Its mission is to preserve and promote the family,based on marriage between a man and a woman asthe societal unit that provides the best outcome formen, women and children. FWI works at the UnitedNations and in countries around the world educatingthe public and policymakers regarding the central

role of the family and advocating for women, childrenand families at the international, national, and locallevel. Sharon Slater is the President of FWI.

Freedom Alliance is a non-profit educationaland charitable foundation founded in 1990 by Lt. ColOliver L. North, who now serves as the organization'shonorary chairman. Its mission is to advance the

American heritage of freedom by honoring and en-couraging military service, defending the sovereigntyof the United States and promoting a strong nationaldefense. Thomas P. Kilgannon is the President of Freedom Alliance.


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Hudson Institute is a non-partisan policy researchorganization dedicated to innovative research andanalysis that promotes global security, prosperity,and freedom. The Institute challenges conventionalthinking and helps manage strategic transitions tothe future through interdisciplinary and collaborativestudies in defense, international relations, economics,culture, science, technology, and law. Through publi-cations, conferences and policy recommendations, weseek to guide global leaders in government and busi-ness. Herbert I. London is President and John

Fonte is a Senior Fellow at Hudson.Solidarity Center for Law and Justice is a

professional corporation organized under the laws of the State of Georgia for the promotion of socialwelfare by defending human rights secured by law, towit: those individual liberties, freedoms, andprivileges involving human dignity that are eitherspecifically guaranteed by the U.S. Constitution orby a special statutory provision coming directlywithin the scope of the 13th or 14th Amendment,some other comparable constitutional provision, orthat otherwise fall within the protection of theConstitution by reason of their long establishedrecognition at the common law as rights that areessential to the orderly pursuit of happiness by freemen and women. When permitted by court rules andpractice, Solidarity Center for Law and Justice filesbriefs as amicus curiae in litigation of importance tothe protection of human rights.

The Cato Institute was established in 1977 asa nonpartisan public policy research foundation

dedicated to advancing the principles of individualliberty, free markets, and limited government. CatosCenter for Constitutional Studies was established in


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1989 to help restore the principles of limitedconstitutional government that are the foundationof liberty. Toward those ends, the Cato Institutepublishes books and studies, conducts conferencesand forums, publishes the annual Cato SupremeCourt Review, and files amicus briefs with the courts.Catos interest in this particular case lies not in theunderlying criminal law issues but in that it could beused as a vehicle for improperly inserting foreign andinternational lawand non-binding aspirationsinto domestic constitutional (and statutory) interpre-

tation. Ilya Shapiro is a senior fellow in constitu-tional studies at Cato and editor-in-chief of the Cato Supreme Court Review.

The Competitive Enterprise Institute is apublic interest group dedicated to free enterprise andlimited government. In its view, the use of vague in-ternational norms to interpret constitutional provi-sions poses grave dangers to liberty. Christopher C.Horner is a Senior Fellow at CEI.

The Sovereignty Network was organized to

formulate proper courses of action in response toU.S. government policies, federal legislation, andactions of the United Nations system which erode orotherwise impinge on American sovereignty, andtakes concerted action to strengthen Americanindependence and self-government by opposing globalgovernance and transnational progressivism. TheNetwork is an association of analysts, activists, andacademics based in Washington, DC.

United Families International is a non-profit,non-partisan, non-religious international organizationfounded in 1979. It is devoted to maintaining andstrengthening the family. UFI strengthens thefamily by respecting existing law, political structure,


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religion and cultural norms that preserve the family. Apropos to the present cases, UFI strengthens thefamily by promoting respect for the sovereign rightsof each individual nation as it works in the worldcommunity to protect the common good of individualfamilies. Michael Duff is the President of UFI.

graham v. florida; sullivan v. florida, cato legal briefs

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