Gavel and handcuffs

Massachusetts Looks to International Sources to Inform ‘Evolving Standards of Decency’

In declaring life without parole unconstitutional for people under 21, the state’s high court cited sentencing practices in Canada and the United Kingdom.


This article is part of a content series on Commonwealth v. Mattis. You can read all the pieces in the series here

In a landmark decision, the highest court in Massachusetts last week extended its ban on juvenile life without parole to include “emerging adults,” defined as people ages 18 through 20.

The decision, Commonwealth v. Mattis, is notable not just because it is the first such ruling in the country. It also stands out because it reinforces the value of looking to international sources in determining the “standards of decency” that inform the constitutionality of a sentencing practice.

In 2011, then-18-year-old Sheldon Mattis gave a gun to 17-year-old Nyasani Watt and encouraged him to shoot two boys Mattis thought were members of a rival gang. Watt complied, killing one boy and wounding the other. Mattis and Watt were both convicted of murder, among other charges. Because he was under 18, Watt was deemed eligible for parole after 15 years. Mattis was sentenced to life without the possibility of parole.

On January 11, the Massachusetts high court held that Mattis’s punishment was barred by Article 26 of the state constitution, which prohibits “cruel or unusual punishment.” A similar but not identical prohibition of “cruel and unusual punishment” (emphasis added) appears in the federal Constitution’s Eighth Amendment. Massachusetts’s supreme court has long held that its constitution affords greater protections than the federal Eighth Amendment. And, unlike the current U.S. Supreme Court, it has no qualms about looking to international sources to reach that conclusion.

Early in the country’s legal history, looking to the laws and practices of other nations was a regular part of the judicial toolbox for both federal and state court judges. But when several U.S. Supreme Court justices, particularly Anthony Kennedy and Stephen Breyer, cited comparative and international law in opinions written in the late 1990s and early 2000s, the approach soon became politicized. Justice Breyer wrote a book to explain his support for a global view. In contrast, Justice Antonin Scalia repeatedly and vigorously condemned the practice, insisting that international law might be considered in private but should not make its way into written opinions. Conservative U.S. senators took up the cause and grilled federal judicial nominees on their views on international and comparative sources. Some members of Congress even proposed impeaching federal judges who cited laws and court decisions of other nations.

Similar controversies erupted at the state level. Oklahoma adopted a state constitutional amendment in 2010 barring state courts from considering international law. By 2013, such bans were also enacted in Kansas, Louisiana, Tennessee, and Arizona and had been proposed in at least 32 other states. Even in states where such restrictive legislation was proposed but not enacted, the debate certainly chilled state court judges from looking abroad for inspiration, or to assess broad legal trends.

In the U.S. Supreme Court, international and comparative law was most comprehensively addressed in construing the federal Constitution’s Eighth and Fourteenth Amendments. In the 2005 case of Roper v. Simmons, Justice Kennedy’s majority opinion cited the “overwhelming weight of international opinion” as confirmation of the Court’s independent conclusion that the Eighth Amendment barred the death penalty for offenders under age 18. Five years later, in Graham v. Florida, Kennedy’s majority opinion again cited international practice to support the decision to disallow life-without-parole sentences for juveniles who did not commit homicide.

Yet in more recent cases addressing punishment for juveniles — Miller v. Alabama, extending the bar on juvenile life without parole to homicide cases in 2012; Montgomery v. Louisiana, giving retroactive effect to Miller; and Jones v. Mississippi, upholding discretionary imposition of juvenile life without parole in 2021 — the majority opinions made no mention of international practice or law. Instead, Justice Scalia’s admonition seems to have carried the day in the Eighth Amendment arena, at least for the time being.

In contrast, the Mattis decision confirms that the Massachusetts high court is carving out its own path and maintaining a dialogue with the international community of jurists. This is not the first time that the Massachusetts court has taken the international context into account in its decisions regarding juvenile sentencing. In 2013’s Diatchenko v. District Attorney for the Suffolk District, the court held that the discretionary imposition of juvenile life without parole violated Article 26. Quoting John Adams, who authored the Massachusetts Constitution, the court stressed the importance of “learning from the success and failures of our own structures and those of other nations.” With the Diatchenko decision’s limit on juvenile sentencing, proclaimed the court, “we join a world community that has broadly condemned such punishment for juveniles.”

The majority in Mattis reaffirms this engagement with the world community. To determine “contemporary standards of decency,” the court notes that it may look beyond domestic sources to “international statutes and decisions.” As part of its analysis, the Mattis opinion cites the two nations arguably most closely aligned with the United States in terms of legal history and values: the United Kingdom and Canada. According to the court, in 2020, the United Kingdom statutorily banned life without parole for offenders under age 21, and in 2022, the Supreme Court of Canada unanimously ruled that life without parole is unconstitutional for any offense, regardless of the offender’s age.

At a time when the U.S. Supreme Court seems narrowly focused on 18th-century U.S. history as its primary interpretive source, the Massachusetts court’s reaffirmation that standards of decency evolve and that the world community can contribute to our domestic understanding of justice — even when applying a founding-era constitution — is a welcome alternative.

Martha F. Davis is a university distinguished professor at Northeastern University School of Law.

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