Abolishing life imprisonment for children: A battle that’s not won yet

Photo by Alfaz Sayed on Unsplash

Life imprisonment of children is on the decline. Since 2008, five countries have abolished life imprisonment as a criminal sentence for children entirely and in many countries where it remains, fewer children are serving these sentences. In the fourth blog of our series for the World Congress on Justice with Children, Leo Ratledge from Child Rights International Network (CRIN) looks at where this sentence still exists and the role that legal advocacy has played in the movement to abolish the practice.

What do we mean by life imprisonment of children and where does it remain?

The precise formulation of life imprisonment of children can vary from country to country, but what all forms have in common is that the person who is sentenced was under the age of 18 at the time they committed their offence and, at the point of sentencing, their detention is authorised for a period that may last for up to the rest of their natural life.

In the most extreme cases, the sentence of life without parole (LWOP) requires that the person will never be eligible for release. It means that short of a pardon, commutation or other form of leniency, they are sentenced to die in prison. Globally, this practice has been almost abolished for children, with the exception of some jurisdictions within the United States.

Far more common are sentences of life imprisonment with the possibility of parole, which remain in at least 63 countries for offences committed by children. Two thirds of these countries are within the Commonwealth, demonstrating the strong legacy of the English criminal law tradition in this area. These sentences usually require a minimum period of detention that must be served before a person can be considered for release subject to restrictions and controls. If a person breaches these restrictions, they can be recalled to detention without being convicted of a further offence. Within the Commonwealth, when applied to under 18-year-olds, these sentences are commonly labelled detention at the pleasure of the executive or the courts.

Finally, there are forms of indeterminate sentencing that may amount to life imprisonment in practice. These require detention for a minimum period of time before release can be considered, but there is no guarantee of release.

While there has generally been a downward trend in the use of life imprisonment for children globally, there are exceptions. In 2015, India reintroduced life imprisonment for older children in response to a high-profile rape case in which one of the perpetrators was under 18. The development of terrorism legislation is also seeing an increase in offences for which life sentences can be applied to under-18-year-olds and creating gaps within child justice systems that risk children being tried and sentenced as adults, including to life imprisonment.

The role of legal advocacy in the abolition movement

strategic litigation has played an important role in the movement towards abolition

Over the last decade, the decline in life imprisonment for children has been substantially propelled through legal advocacy. Though not the only successful tool for campaigning against these sentences, strategic litigation has played an important role in the movement towards abolition.

Leading the field, the most advanced human rights-based litigation against life imprisonment of children has taken place in the Inter-American human rights system. In a case against Argentina, the Inter-American Court of Human Rights (IACHR) found in 2013 that life imprisonment of children violates the American Convention on Human Rights (ACHR), specifically the prohibition on arbitrary arrest or imprisonment, and that Argentina’s use of the sentence also violated the prohibition on inhuman or degrading punishment. In interpreting the provisions of the ACHR, the decision drew heavily on the UN Convention on the Rights of the Child, particularly the requirement that detention of children must be a last resort and for the shortest appropriate period of time. The ruling set a clear regional standard that life sentences for children violate their human rights and must be prohibited.

The IACHR goes beyond any other regional human rights court to date. The European Court of Human Rights has so far not ruled that life imprisonment for children violates the prohibition on torture, inhuman or degrading punishment as set out in the European Convention on Human Rights (ECHR), but the key decisions over the last 15 years on life sentences under the ECHR have focused on life imprisonment for adults. In light of emerging international standards towards the prohibition of life imprisonment for children and the near elimination of the sentence from Council of Europe jurisdictions, it is possible that the Court would reach a different decision for children subject to life sentences than it did for adults.

Strategic litigation has also been a successful tactic at the national level. A series of United States Supreme Court decisions since 2005 have seen the abolition of the death penalty for offences committed by children, the end of life without parole sentences for non-homicide offences committed by under-18-year-olds, the end of mandatory LWOP sentencing for children and then a requirement that this prohibition be applied retroactively.

around 700 people in the United States are serving LWOP for an offence committed while they were under 18

The outcome of these decisions has been to drastically reduce the number of jurisdictions where life imprisonment without the possibility of parole is legal for offences committed by children and to reduce the number of children who are subject to these sentences across the whole country. Across the United States, 25 states and the District of Columbia have abolished LWOP for children and in a further six no one is serving the sentence for an offence committed while a child. Around 700 people in the United States are now serving LWOP for an offence committed while they were under 18, down from 2800. More than 750 people who were sentenced to spend the rest of their lives in prison for an offence committed as a child have now been released.

Recent developments have shown, however, that the continuation of this trend cannot be guaranteed. In 2021, the US Supreme Court struck a blow against the move away from life sentencing for children, finding that there was no requirement for a child to be found “permanently incorrigible” in order to be sentenced to LWOP. A shift in the make-up of the court risks derailing future legal advocacy to end life imprisonment in the United States.

What next for the campaign to end life sentences for children?

We have undoubtedly seen a decline in the legality and use of life sentences for children in recent years, but we cannot rely on this trend to continue. The movement to abolish life sentencing for children does not exist in a vacuum, it collides with larger forces influencing penal policy, including those of populism and counter-terrorism. A shift in the makeup of a Supreme Court can derail legal campaigning, a high-profile case involving a child can lead to radical and regressive law reform and the rise of counter-terrorism legislation may punch a hole in protections for children within the criminal justice system. The movement to abolish life sentences for children will require vigilance if it is to be successful.