Rights of Children in the New Millennium (1999)

Aristotle once said, "Politics means the taking care of the common good of all of the citizens." By that definition, our journey from the caves to the stars has been, in significant part, a political one. From that perspective, at least, the practice of politics is a noble one, intended to move us away from savagery, toward a more harmonious, more rational, more "civilized" mode of behavior and interaction. That idea is reflected in most of the thinking that stirs our souls. As Clarence Darrow once put it, "There is in every man that divine spark that makes him reach upward for something higher and better than anything he has ever known." Awareness of the potential for human improvement is not only deeply embedded in most religious tenets and ethical premises, but also in the fundamental documents of democracy. It permeates the highest thinking from prehistory to today. Our own Supreme Court held, not long ago, that legal concepts should be considered in light of "evolving standards that mark the progress of a maturing society."

It is terrifically frustrating, having noted that, to note further that the arrogance of our elite position in the world has engendered an America-centric viewpoint and resulted in a politics defined by strategies of the ambitious to attain or maintain personal wealth and power. This apparently without consideration of the costs inflicted on the powerless.

It should go without saying, I think, that any notion of valuing our future has to include special protections for the embodiment of that future: our children.

As has been suggested earlier, it's understood throughout the world that children lack the experience and maturity necessary to make appropriate choices, to fully understand the consequences of their actions and to comprehend the long-term effects of the decisions often placed before them and thus must be protected. It is for that reason that the laws of our own country bar children from buying or using cigarettes or alcohol, keep them from voting, refuse to consider them for jury duty and will not allow them to marry without parental consent. As the court has stated, "adolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults." They went on, "Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time more apt to be motivated by mere emotion or peer pressure than adults." (Eddings V. Oklahoma)

There is a tension between cherishing the freshness, delicacy and promise of youth, wanting to give it permission to range freely and explore the world, and the need to fulfill our own responsibility as adults by setting appropriate limits within which these qualities can be nurtured to full flower. But the inherent understanding of our duty to protect this treasured resource underlies both law and custom in today's world.

As you've heard here today, this understanding has led to the development of international agreements such as:

  • the Fourth Geneva Convention, signed in 1949, which states, "In any case, the death penalty may not be pronounced against a protected person… who was under 18 years of age at the time of the offence (sic),"

  • the American Convention on Human Rights, adopted in 1970, says "Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age,"

  • the International Covenant on Civil and Political Rights, created in 1966 and ratified by the U.S. in 1992, (in Article 6, paragraph 5,) specifically prohibits the use of the death penalty against juvenile offenders

  • and the Convention on the Rights of the Child, which makes clear that trying children as adults is a violation of international standards. This Convention holds that a court's treatment of a child must be "in a manner consistent with the promotion of the child's sense of dignity and worth." The court should not only take the child's age into account, it should also reflect "the desirability of promoting the child's re-integration and the child's assuming a constructive role in society." In all actions concerning children, the Convention maintains, the best interests of the child "shall be a primary consideration." This Convention, of course, absolutely disallows capital punishment or life without parole for children under 18.

So, as one of the small and shrinking group of nations that continues to kill its children (Iran, Iraq, Nigeria, Pakistan, Saudi Arabia & the U.S. - Yemen changed its policy last year), we are in violation of all of the above. We violate the Fourth Geneva Convention.

As for the American Convention on Human Rights, it has never even been ratified by the United States government.

In the case of the ICCPR (the International Covenant on Civil and Political Rights), which the U.S. helped draft, we praised it as "the most complete and authoritative articulation of international human rights law that has emerged in the years following World War II." Then, when ratifying, the United States took a reservation, specifically maintaining its right to utilize capital punishment for "persons below eighteen years of age." We maintain that right today, despite language in the convention prohibiting that reservation, despite criticism of it by the enforcement body of the ICCPR and despite formal objections to it by Denmark, Finland, France, Germany, Italy, the Netherlands, Norway, Portugal, Spain and Sweden.

As an aside, when Bacre Waly N'Diaye, the UN Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions, met with Governor George Bush of Texas during his mission to the U.S., he carefully explained the requirements associated with the Covenant and how the U.S., and particularly the state of Texas, were in violation. Governor Bush, finally exasperated, exclaimed that he didn't know what N'Diaye was talking about, had never heard of the Convention and asked why he should care about it anyway. To which Mr. N'Diaye responded, "Because your father signed it."

The Convention on the Rights of the Child - one of the great, forward-looking documents of the modern era - lacks the signatures of only two countries in the world: Somalia, a country without a viable government, and the United States.

How then, in the face of this huge merging of international accord, this comprehensive understanding of the need to protect the value and dignity of our children, is it that we in the U.S. continue this heinous practice? The answer, clearly, is domestic politics.

… and contradictory ones. Americans were scandalized last year by a story in the news about a married teacher who had an affair with and was impregnated by her 14-year-old student. Mary Kay LeTourneau was excoriated for taking advantage of a vulnerable child. She's in prison today because she, after having been found guilty of having a sexual relationship with the minor and placed on parole, violated that parole by again meeting with her child-lover. Ms. LeTourneau, an adult, "knew better" than to engage in such behavior with an immature child. The boy, whose name has not been released for his own protection, said he was in love with Ms. LeTourneau, but of course we know that a child of that age really hasn't the life experience to fully understand his own emotional responses to such an overwhelming situation. So we protect him.

And is that not indicative of the schizophrenic nature of our approach to our own children? If that boy had pursued LeTourneau, and they had fought, and he had killed her, there would have immediately been ambitious, tough-on-crime politicians and victim's rights advocates in front of the cameras, hollering for his scalp.

Fear of crime is a natural enough thing. Exaggerated by a sensationalist media and exploited by politicians whose only goal is to gain or maintain power, that fear can be used to lead an ill-informed public into a swamp of contradictions, stripping rights, building prisons, shortening appeals, weakening liberties and killing children among them. And that's what's happening in our country today.

Fear-mongers make headlines when they manipulate the public's concerns, and headlines translate into votes. Hence, when youth crime statistics were twisted to hype the notion that a "predator generation" of kill-crazy teens was, like a pack of locusts, soon to descend upon us, so called responsible legislators got a lot of press by making what they themselves ballyhooed as the "tough call." Senator Orrin Hatch introduced an omnibus crime bill that would lower the minimum qualifying age for the federal death penalty from 18 to 16. Florida's Representative Bill McCollum proposed the Violent Youth Predator Act of 1996, calling for harsher punishment for juvenile violators. Then Governor Pete Wilson of California said that in order to protect ourselves we should be able to execute 14 year olds. California Democratic legislator and now Lt. Governor Cruz Bustamante said, through crocodile tears, that it might be necessary to go even lower. Governor Gary Johnson of New Mexico proposed executing 13 year olds. And a Texas legislator, after the Arkansas schoolyard shootings, said we need to be able to kill the 11-year-olds.

The release of an FBI study showing that youth crime had not in fact risen but actually had fallen by 23% over the period in question seemed not to make a dent as a USA Today poll indicated Americans believed that 43% of all crime was attributable to juveniles. The actual amount was 12.8%.

We live in an age of exploitation, manipulation, sales, hype and parasitism. Those who thirst for power quickly sense any opportunity to advance their own cause - usually themselves - and if innocents suffer in the process, let it be so in the name of the "greater good." Any sentient being knows that children are our future and the protection of that future is in our own interests. But a few clever, self-promoting troglodytes willing to play on people's fears can stampede public opinion and, with well-placed pieties and clever appeals to the worst in our natures, create a climate that we will one day look back on with shame.

So-called leaders know the mentally damaged, the impoverished, the abused and the innocent die in our killing chambers. So they try to displace that knowledge by characterizing killers - sometimes especially young killers - as monsters - as less than human. But they know, or should know, what Dorothy Otnow Lewis found in her study of 14 children on death row for the "American Journal of Psychiatry." In that random study she found that all 14 had suffered serious head injuries as younger children, that all had serious psychological problems, that all but two had been physically or sexually abused, and that only two of the 14 had an IQ above 90. They know. And if those who would be leaders don't know these things, I would remind you that one definition of evil is "intentional ignorance."

It's there for them to know. It's there for us to know. And to do something about. You've heard today of Sean Sellers. How about Shareef Cousin, a 16 year old black kid convicted of killing a white man by a prosecutor willing to hide exculpatory evidence - sentenced to death, suffered God knows what indignities in prison, and just recently found to be innocent and released against the wishes of a reluctant district attorney after 3 years on death row in Louisiana? How about Christopher Burge, who, before he was executed, wrote from Georgia's death row that when he imagined being free he thought of roller skating, buying tapes of his favorite rock band and riding his ten speed bike.

It's there for us to know. And to think about when we consider the Supreme Court's notion of the "evolving standards that mark the progress of a maturing society." Perhaps our leaders need to learn to look outward instead of in; instead of defining that standard as Justice Scalia did by noting the continuing support for death in the American heartland, how about noting the progress of a maturing world society?

How about comparing our reaction to that of, say, a community in Japan, which was faced last year with the phenomenon of one child killing another?

The shock to that society brought on by this brutal murder brings pain to the hearts of parents of all nations. What is more inexplicable than the commission of such a grotesque act, reportedly including torture and decapitation, by an apparently normal fourteen-year-old human being of any race?

But as a result of the awful murder of this eleven-year-old child, whose severed head was placed outside a school, Japanese parents, teachers, specialists and government officials questioned themselves about the pressures they had placed on their children by a cultural emphasis on performance. "We need to recognize that the stress level of our youngsters is reaching a dangerous level," said Nobuto Hosaka, a Member of Parliament.

Whatever the outcome of the soul-searching that spontaneously erupted in the wake of that killing, the questions being asked carry with them an enormously important lesson for America, if only we are willing to listen. Theirs is the reaction of a healthy community: Something must be wrong when one of our innocents, one of our not-yet-fully formed citizens, one of those in whom we invest our ideals and from whom we expect the realization of the promise of our nation, cracks under the pressure of our society and does dishonor to another, to himself, and to us in the bargain.

Note that nowhere in this process do we see a bloated politician calling for the death of this child and other miscreant 14-year olds. Note that vote-seekers did not leap forward to denounce this confused boy as the harbinger of a "predatory" crop of twisted, murderous youth.

The example the Japanese offer is that of a society which trusts, loves, honors and believes in the potential of its children to the degree that it is willing to critically examine its own behavior, its own choices, when presented with evidence that something is terribly amiss. Not only a demonstration of great inner strength, this is an exemplary act of extraordinary generosity by which their children will profit. And it is one we Americans, who now contemplate the imprisonment of youthful offenders with adults, who have executed more children in our death chambers than any other nation in the world, should seriously consider.

Should the existence of gangs and youth violence in America tell us something about our society? Does a two-tiered education system imbue a sense of personal worth? Is the end product of poverty-driven hopelessness a drug epidemic and bulging prisons? Does a culture of acquisition honor the value of being human? Does state killing teach anything of value? Is child-fearing and child-hating a sign of health? Are we big enough to learn from the Japanese?

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