Robyn Linde. The Globalization of Childhood: The International Diffusion of Norms and Law against the Child Death Penalty. New York: Oxford University Press, 2016. 328 pp. $74.00 (cloth), ISBN 978-0-19-060137-9.
Reviewed by Richard Wilson (American University)
Published on H-Diplo (April, 2017)
Commissioned by Seth Offenbach
The Globalization of Childhood: The International Diffusion of Norms and Law against the Child Death Penalty, by Robyn Linde, is a study of the diffusion across countries of the world, over a century and a half, of the abolition of the death penalty for children convicted of serious crimes. That diffusion, key to the text’s analysis, was sometimes slow and sometimes very fast. It traces that diffusion from the early abolition of the death penalty for all offenses in Venezuela, in 1863, through a finding of its unconstitutionality in the United States in the 2005 Supreme Court case of Roper v. Simmons. Linde constructs a typology and case studies to trace that diffusion, using the frameworks of norm emergence and norm cascades, defining cascades as “a time of rapid spread during which a critical mass of states adopt the new norm” (p. 15). That diffusion also provides what Linde calls the emergence of a concept of globalized childhood (p. 59). That concept is grounded, she asserts, in a virtually universal ban, “found in 96% of states by the end of the twentieth century,” of the death penalty for child offenders, “a bold policy position, suggesting that the boundaries of childhood are inviolable and that there is nothing a child can do, no crime too brutal or too violent, to revoke the protection that childhood affords” (p. 2).
The book uses an analytical formula developed from close examination of the periods of diffusion of the norm among the 137 countries of the world that have abolished the death penalty specifically for children or for all offenses. In her analysis of that data set, Linde identifies three key periods of abolition: early adopters (24 countries, between 1863 and 1959); first cascade adopters (49 countries, from 1960 to 1981); and second cascade adopters (64 countries, between 1985 and 2005). Sometimes as part of these three groups, and sometimes not, she adds a category of laggards, or “states that reject the norm and/or fail to comply with it entirely” (p. 24). Most prominently among these states is the United States, which, though it has abolished the penalty through judicial decision, is a “hegemonic laggard” (p. 25). She notes that, apart from her data set of the 137 enumerated countries, 17 more countries had abolished the penalty for all offenses as of the time of her writing (p. 44).
Linde embeds these three periods of diffusion within a further framework of what she identifies as “the primary mechanisms of diffusion of the norm against the child death penalty: principled activism, coercive socialization, and the globalization of childhood” (p. 55). That is, each stage of diffusion is characterized by a method of diffusion, based on her close study of selected countries from each period for each case study. The primary work of the book takes place in these chapters. For the early adopters, whose mechanism is primarily principled activism, she chose case studies of France and England (chapter 3). From the first cascade countries, characterized by coercive socialization, she chose “major” case studies of Algeria together with Tunisia and Kenya together with Tanganyika/Tanzania, with “minor” case studies of Ethiopia and Japan (chapter 4). For the third cascade, characterized by the globalization of childhood, she focuses not on countries but on the work of an international organization, UNICEF, and an international nongovernmental organization (NGO), Amnesty International (chapter 5). Finally, for the laggard countries, she chose to focus on case studies of the United States, China, and Pakistan (chapter 6). In a concluding chapter, Linde asserts that her work “makes several contributions to the international relations literature on norms, international and comparative law, diffusion theory, and human rights” (p. 246). In her conclusions, she includes seven key findings, as well as a brief summary of critiques of the global model of childhood, with her rebuttal of each.
The book is not a casual read. It is a serious and at times dense work of scholarship, well written, with empirical, analytical, and theoretical components. It is, in all likelihood, the published version of a doctoral thesis awarded at the University of Minnesota. In the acknowledgments, the author thanks her “dissertation advisor and mentor,” Katherine Sikkink, whose own scholarship unquestionably influences Linde, particularly as to the concept of rights cascades (p. xiii). The later chapters, from chapter 3 on, are thoroughly researched and informative to any reader, particularly as to the most extensive case study of the United States in chapter 6. Even chapter 2, on data and case selection, is a fascinating overview of the history of abolition of the child death penalty, country by country, with a proposed analytical framework of the forces that bring about widespread norm adoption.
The most daunting chapter, in all candor, is the first, called “Introduction.” It tries to do too much of the work of the later chapters, and lends itself to theoretical density and extended analysis better saved for the substantive subsequent chapters. As a lawyer and non-specialist in the social sciences field, I found it daunting to encounter repeated references to schools of thought in the social sciences without a sense of the context and broad outlines of those schools. Thus, such terms as “constructivist and liberal theories” and “sociological institutionalists” (p. 13), all in the same sentence and without full context, left this law-based reader in the dust of social science schools of thought. Later in the chapter, we find other undeveloped theories of “realists” and even “legal positivists” (there was a whiff of recognition here). They all suggest that this text—or at least this chapter and the conclusion, which shares the same terminology—will optimally be explored by those with extensive grounding in social science theories.
The book seems more about its subtitle than the main title. It spends most of its effort on documentation of a history of the virtually universal abolition of the death penalty for children rather than development of a comprehensive model of globalized childhood. The concluding chapter states as much when it opens by noting that the book “examines how an idea that began in one part of the world becomes a global norm that almost all states in the international system obey. The development of the norm of abolition of the death penalty for child offenders under the age of 18 presented several puzzles” (p. 244). Other than a uniform age of eighteen before criminal responsibility can give rise to the death penalty, now accepted worldwide, there is little in-depth development of the notion of the “globalized child” here.
There is a vast literature, and no shortage of international law, particularly in global declarations and treaties, on the many aspects of childhood, and on the human rights of the child, aside from the sparing of life when a child is convicted of a capital crime. In each of the country studies, Linde identifies other issues that deeply affect a universal understanding of childhood; among them are issues about child soldiers, forced marriage, female genital mutilation, child labor, legitimacy at birth, abused and neglected children, and others, all with only passing mention. Nothing demonstrates this more clearly than an extensive table that provides the reader with a global model of childhood through detailed summary of the various UN declarations and treaties on the rights of the child, from the 1924 Declaration through the 1990 Convention on the Rights of the Child (CRC). That treaty contains a series of provisions on “justice and punishment” of children, including a unique provision among the child-protection instruments prohibiting the death penalty for those under the age of eighteen at the time of their crimes (table 2.5). Yet there is nothing more here on the related provisions in the CRC on punishment—the separation of children from adult prisoners, permission to maintain contact with family while incarcerated, treatment in a manner consistent with a child’s age, etc.
In fact, if the goal of the book is to develop a comprehensive concept of the globalized child or childhood, why are not the CRC and its predicate UN human rights instruments the more appropriate frameworks for focus, rather than the oblique issue of state action in abolition of the death penalty? The CRC is the most widely ratified of the core global human rights instruments, having been ratified by every country, including young South Sudan (2015), except the laggard hegemon, the United States. The CRC thus would seem to offer a universally accepted concept of the globalization of childhood. However, it does contain one provision that may undermine Linde’s argument of the alleged universal acceptance of eighteen as the age of majority. In Article 38(3), the only other article in the treaty to name an age other than eighteen, the CRC states that “States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.” If a person between fifteen and eighteen years of age is adult enough to be recruited as a soldier in a state’s armed forces, it seems the concept of a fixed age for the end of childhood is still at least somewhat contingent.
Linde’s sources are massive, an impressive bibliography of materials, primarily on the death penalty, but also, as she notes, the limited sources on national and international understandings of the concept of childhood. However, based on the author’s limited sources, there is one clarification needed. In the case study of Amnesty International’s work on the death penalty, comprehensively developed in chapter 5, Linde gives credit to a large coalition of NGOs that collaborated on legal strategy, beginning with the Supreme Court’s decision in Atkins v. Virginia, in 2002, which struck down the death penalty for persons with intellectual disabilities, then referred to as retardation. That coalition stayed active, aided by foundation funding, through the seminal decision of Roper v. Simmons in 2005, mentioned above. One key NGO actor is omitted, however, and that was the Legal Defense Fund (LDF) of the National Association for the Advancement of Colored People (NAACP). George Kendall, a staff attorney with LDF and long-time death penalty litigator, was the key actor in coordinating the filing of the sixteen amicus curiae, or friend of court, briefs discussed in this text.
One final observation is offered here. In her concluding chapter, Linde argues, perhaps correctly, that “authority over children has shifted in the last two or three centuries from the father, who was sovereign in the family, to the state. The last half of the twentieth century witnessed a second shift in authority from the state to the international community.” Later in the same paragraph, she distinguishes between the “ideological authority” of the international community and the “material authority” of parents, which authority “is the ability to control children’s actions and environment” (p. 251). Aside from quibbles over matriarchal versus patriarchal authority in the family, if the United States is ever to become a party to the CRC, this is the very argument, however correct, that will have to be overcome. Any idea that authority over children lies outside of the family (ignoring the real authority of state protective services to intervene and physically remove children in grave cases of parental default) is a powerful reason that ratification of this instrument has failed ratification, or even serious discussion, in the United States Senate.
. Martha Finnemore and Katherine Sikkink, “International Norm Dynamics and Political Change,” in Exploration and Contestation in the Study of World Politics, ed. Peter J. Katzenstein, Robert O. Keohane, and Stephen D. Krasner (Cambridge, MA: MIT Press, 1999), 247-277.
. For treaty ratifications, particularly those that deal with human rights, one can consult the UN Treaty Collection, particularly Chapter IV on Human Rights treaties, at https://treaties.un.org. The ratification page also indicates a number of reservations and declarations purporting to exempt signatory countries from certain articles of the convention, particularly all or parts of Article 37, which deals with the punishment of children for crimes.
. I spent nearly four years representing young Omar Khadr, a Guantanamo detainee from Canada, captured at age fifteen in Afghanistan in 2002, and ultimately returned to Canada and released from custody in 2015. The saga of his story, and his legal battles, is summarized in Richard J. Wilson, “Omar Khadr: Domestic and International Litigation Strategies for a Child in Armed Conflict Held at Guantanamo,” Santa Clara Journal of International Law 11, no. 1 (2012): 29-79. No court in the United States or Canada, nor any international human rights body, ever recognized this fifteen-year-old captive as anything other than a responsible adult; his childhood was legally invisible.
. I was counsel for the European Union and other countries in the United States Supreme Court, and author of amicus curiae briefs on their behalf in both the Atkins and Roper proceedings. Richard J. Wilson, Roper v. Simmons, Brief of Amicus Curiae the European Union and Members of the International Community in Support of Respondent (2004), in author’s possession. The work in both cases was coordinated on the ground through the International Justice Project and in the Supreme Court, with other amici, by LDF.
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