Sentencing of 12-year-old violates Convention on the Rights of the Child

The United States is finding itself in violation of the United Nations Convention on the Rights of the Child — ratified by every country in the world except the U.S. and Somalia — in the case of a 12-year-old boy in Indiana. Paul Henry Gingerich was tried as an adult in a homicide case earlier this year and was given 30 years in an adult prison for assisting the killing of a friend’s step-father.

As the Paul Henry Gingerich Trust Fund explains the crime, “what began simply as a runaway plan was at the last minute switched to murder by the older boy, and Paul Henry found himself out of his depth in the wrong place at the wrong time.”

The presiding judge, Duane G. Huffer, decided that there was no hope for the boy, declaring, “Our laws do not afford effective rehabilitation for a child charged with murder.” The boy was thrown into adult prison, in breach of the Convention on the Rights of the Child, a legally binding instrument spelling out the basic human rights of children everywhere, in particular setting standards in health care; education; and legal, civil and social services.

Article 37 of the Convention states that:

(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

While the case of Paul Henry Gingerich has received quite a bit of attention, it is by no means unique. Trying and sentencing young children as adults occurs with alarming frequency in the U.S. according to a 2009 report by the Lyndon B. Johnson School of Public Affairs.

The report, “From Time Out to Hard Time: Young Children in the Adult Criminal Justice System,” finds that more than half the states permit children age 12 and under to be treated as adults for criminal justice purposes. In 22 states, plus the District of Columbia, children as young as seven can be prosecuted and tried in adult court where they would be subject to harsh adult sanctions, including long prison terms, mandatory sentences and placement in adult prisons.

The report notes that the United States stands nearly alone in the world in its harsh treatment of young children:

Punishing young children violates international norms of human rights and juvenile justice, and yet the United States continues to lead the world in both policies and practices aimed at treating young children as adults. The way the United States punishes pre-adolescents who are waived to the adult criminal justice system is of special concern in light of the basic principles of international human rights law. From the U.N. Convention on the Rights of the Child to the International Covenant on Civil and Political Rights, the United States has disregarded international laws and norms providing that children should be treated differently than adults. A number of international laws offer support for increasing the minimum age of criminal responsibility and argue against long, mandatory minimum sentences for children.

Nearly all nations in the world follow both the spirit and letter of these international instruments. As a result, most countries—including those Western nations most similar to the United States—repudiate the practice of trying young children as adults and giving them long sentences. Our research has yielded no findings of any young children elsewhere in the world who are imprisoned for as long as some children in the United States. Moreover, the international community is seeing a trend whereby juvenile punishments are being rolled back, at the same time that certain states in America are increasing the possible array of punishments for children. Ultimately, while international norms do not control the criminal justice policy of the United States, they do signal the extent to which the U.S. is out of step with the global consensus that children should be treated as children.

If the United States hopes to be considered a civilized democracy, it must start by respecting the rights of children as spelled out in international agreements, beginning, hopefully, with Paul Henry Gingerich. 

To donate to Paul Henry’s legal defense, click here.

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About The Compliance Campaign

Campaigning for a United States in compliance with its international obligations. Follow on Twitter here: https://twitter.com/compliancecamp Facebook: https://www.facebook.com/compliancecamp Comments, article submissions or news leads are welcome at compliancecampaign [at] gmail.com.

4 responses to “Sentencing of 12-year-old violates Convention on the Rights of the Child”

  1. Michael Ramey says :

    I am curious. By what authority do you believe the Convention on the Rights of the Child to be binding on the United States? We have not ratified it, and it does not meet the qualifications to be held as “customary international law.” So how is it binding? I am sorry for Paul Henry and would love to see him given a chance at rehabilitation – I think 12-years-old is too young to be given up on. But I don’t believe the CRC is binding on the United States, though that seems to be foundational to your article. Could you explain?

  2. The Compliance Campaign says :

    Thank you for your question. I would point out that Article 38 (1) of the Statute of the International Court of Justice, provides that the basis for “customary international law” includes “General Principles of Law recognized by civilized nations.”

    Since every nation in the world has ratified the Convention on the Rights of the Child with the exception of the United States and Somalia (which does not have a functioning government), I would say that the principles of the Convention certainly falls under the concept of customary international law. Perhaps I should have made that more clear in the post.

    Anyway, the point was not necessarily that the U.S. was violating a convention that it has legally ratified, but rather that it was violating universally held principles of justice as it pertains to the treatment of children in the justice system. I would say that it is high time that the U.S. ratifies this Convention and starts adhering to its principles.

  3. joseph john ndonjekwa says :

    I would like to know on the best punishment to be given to a child who has committed murder both intentionally and unintentionally,what does the international law say?

    • The Compliance Campaign says :

      That’s a good question. I’m not sure that international law would venture into offering guidelines as to what the appropriate punishment should be, but rather sets minimum standards for the treatment of children taking into account the fact that they are not fully developed. Namely, life in prison shall not be imposed and children must be separated from adults.

      These provisions are so uncontroversial that the USA stands alone in the world in refusing to ratify this treaty and abiding by its parameters.

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