Movie star Lindsay Lohan, who has been sentenced to a prison term, of 90 days, for minor offences relating to drug and alcohol abuse, the administration of justice and breaches of probation orders. She has invoked the Universal Declaration of Human Rights. Apparently, she referred to article 5 of the Declaration on Twitter: ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’ Lindsay Lohan may not be getting much public sympathy, but she has a good point and deserves our support. The United States is said to have about 2 million people in jail. This is hugely disproportionate to the practice in virtually every other country. Much of that is explained by imprisonment for minor crimes, like the case of Lindsay Lohan. Do they really need to put even more people in jail? She obviously has some problems that need solving, but who can seriously believe that a few months in jail is the answer?
The character limits on Twitter probably prevented Lindsay from explaining the subtleties of article 5, and its application to disproportionate punishments. In fact, this is an area where human rights courts and tribunals have been very reluctant to tread. Theoretically, a sentence that was grossly disproportionate to the crime could be challenged under article 5 of the Universal Declaration, or its manifestations in treaties like the International Covenant on Civil and Political Rights (art. 7) and the European Convention on Human Rights (art. 3). There is some case law at the European Court concerning disproportionate sentences imposed upon juvenile offenders, but I think that Lindsay is too old to qualify. Article 6 of the International Covenant on Civil and Political Rights restricts the death penalty to the ‘most serious crimes’, but again I don’t think this applies to Lindsay’s case.
I might be wrong, but the conviction is in California where they have a ‘three strikes’ law. So if she does this a couple of times more, could she be sent to prison for life without parole? That would clearly be a disproportionate sentence, and it would be condemned universally. There are significant numbers of old men and women in American prisons who have committed enough minor offences that they get put away forever.