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The Mysterious Disappearance of International Law Arguments from Juvenile Sentencing in Miller v. Alabama

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Cully Stimson has this article at the Heritage Foundation.

Abstract: For almost a decade, activists have asserted that, through the mechanism of the Eighth Amendment's prohibition on "cruel and unusual punishments," international law either forbids or constrains states from exposing the roughest juvenile criminals to the toughest sentences. Relying in part on those arguments, the Supreme Court of the United States has diminished sentencing options, for adult and juvenile offenders alike, at every turn. However, in Miller v. Alabama, foreign and international law are conspicuous only for their absence. This may signal a welcome shift in the Court's jurisprudence. Activists will no doubt continue to cite foreign and international sources in making their cases against domestic sentencing practices, but Miller at least suggests that the Court has grown wary of such arguments.

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As Justice Kagan sneered--the stuff's already been litigated. So why use international law when you can just incorporate it by reference by citing some of the weeds that have cropped up.

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