Use of the Death Penalty for Killing a Child Victim

About half of all death penalty states include the murder of a child as an aggravating circumstance that can subject a defendant to the death penalty. As of June 2017, fifteen states authorized the death penalty for the murder of a child victim, and four states that later abolished the death penalty also had a child-victim aggravating circumstance.

The most common of the age-of-victim requirements by far—used by nine current or former death penalty states—is that the victim must be under age 12.1 The next most common age, used by four current or former death penalty states, is that the victim be under age 14.2 Two states require that the victim be younger than age 13, and one requires that the victim be younger than age 10.3 Only three states authorize capital prosecution based upon the victim being 14 years old or older.4


1 Arkansas, Delaware (prior to judicial abolition), Florida, Illinois (prior to abolition), Indiana, Louisiana, Pennsylvania, South Carolina, and Tennessee.
2 Nevada, New Jersey (prior to abolition), Oregon, and Virginia.
3 Texas.
4 Arizona, younger than age 15; Connecticut, younger than age 16 (prior to abolition), and Wyoming (defendant reasonably should have known the victim was younger than age 17).


Table 1. States Authorizing the Death Penalty for Killing a Child

State

Child-Victim Aggravating Circumstance

Arizona

The defendant was an adult at the time the offense was committed or was tried as an adult and the murdered person was under fifteen years of age or was seventy years of age or older

Arkansas

The capital murder was committed against a person whom the defendant knew or reasonably should have known was especially vulnerable to the attack because the person was 12 years of age or younger

Connecticut (prior to abolition)

Murder of a person under 16 years of age

Delaware (prior to abolition)

The victim was a child 14 years of age or younger, and the murder was committed by an individual who is at least 4 years older than the victim

Florida

The victim of the capital felony was a person less than 12 years of age

Illinois (prior to abolition)

The murdered individual was under 12 years of age and the death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty

Indiana

The victim of the murder was less than 12 years of age

Louisiana

The victim was under the age of 12 years

Nevada

The murder as committed upon a person less than 14 years of age

New Jersey (prior to abolition)

The victim was less than 14 years old

Ohio

The offender in the commission of the offense, purposefully caused the death of another who was under thirteen years of age at the time of the commission of the offense and the defendant committed the offense with prior calculation and design

Oregon

The victim of the intentional homicide was under the age of 14 years old

Pennsylvania

The victim was a child under 12 years of age

South Carolina

The murder of a child 11 years or younger

South Dakota

The offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. Any murder is wantonly vile, horrible, and inhuman if the victim is less than thirteen years of age

Tennessee

The murder was committed against a person less than 12 years of age and then defendant was 18 years of age or older

Texas

The person murders an individual under 10 years of age

Virginia

Murder victim was under the age of 14 and the defendant was 21 years of age of older

Wyoming

The defendant knew or reasonably should have known the victim was less than 17 years of age

The typical justification for allowing the death penalty for the murder of a child is that children are a particularly vulnerable and defenseless class of victims, deserving of special protection under the law. However, as the use of this type of aggravator by other states shows, that reasoning is generally applied with respect to infants and children, not adolescents. Moreover, the settings in which adolescents are murdered are materially different from those in which infants and young children die. Approximately 80% of murder victims aged 13-16 are killed in gun incidents. Among homicide victims aged 17-19, that rises to 85%. Younger children are more vulnerable to, and comparatively more likely to be killed by, beatings, asphyxiation, and strangulation: types of killings that are generally regarded as more reprehensible than most deaths by shooting.5 

In 2017, the New Hampshire and New Mexico legislatures rejected death penalty bills that would have made the murder of anyone under age 18 an aggravating circumstance.6 If enacted, those statutes would have had the broadest age-of-victim aggravating circumstance in the United States. The U.S. Supreme Court has said that death penalty statutes must genuinely narrow the offenses for which the death penalty may be sought. But while the child-victim aggravating circumstances employed in most states satisfy that constitutional mandate, the under-age-18 aggravating circumstance encompasses such a large percentage of homicides that it raises significant constitutional questions.

According to the Bureau of Justice Statistics, fully 10% of homicide victims in the United States in the years 1980 through 2008 were under age 18.7 DPIC has reviewed the FBI Uniform Crime Statistics from 2010-2015 to estimate how broadly an expansion of age-of-victim aggravating circumstances to age 18 could affect eligibility for capital prosecution. As set forth in the tables below, under current homicide trends in the United States, an estimated 8%- 9% of all murders (between 1 in 11 and 1 in 12) would become capital offenses.

Table 2. FBI Uniform Crime Statistics (Single Victim/Single Perpetrator Cases)

 

Year

 

Total Victims

 

Victims Under Age 18

Victims Under Age 18 Killed by Offender Under Age 18

 

Total Death-Eligible

Number

%

Number

%

Number

%

2011

6,131

600

9.8

71

1.2

529

8.6

2012

6,018

523

8.7

75

1.2

448

7.4

2013

5,723

533

9.3

67

1.2

466

8.1

2014

5,703

547

9.6

80

1.4

467

8.2

2015

6,137

520

8.5

86

1.4

434

7.1

TOTAL

29,712

2,723

9.2

379

1.3

2,344

7.9

 

Table 3. FBI Uniform Crime Statistics (Murder Victims by Age, Expanded Homicide Data, 2010-2015)

 

Year

 

Total Victims

Victims Under Age 18

Number

%

2010

12,996

1,277

9.8

2011

12,664

1,187

9.4

2012

12,765

1,101

8.6

2013

12,253

1,027

8.4

2014

11,961

1,085

9.1

2015

13,455

1,093

8.1

TOTAL

76,094

6,770

8.9%

FBI Uniform Crime Statistics for the years 2011-2015 indicate that 9.2% of homicide victims killed in single victim/single perpetrator murders were under age 18. (See Table 2.) The FBI has sorted these cases by age of perpetrator as well, permitting an estimate of the percentage of cases that would not be death eligible because they were committed by juvenile offenders. The data indicate that 14% of homicides involving victims younger than age 18—or 1.3% of all single victim/single perpetrator homicides—were committed by offenders under age 18 against victims under age 18. But even excluding those cases, an estimated 8% of all murders would become capital offenses under an aggravating circumstances permitting the death penalty for killing a victim under age 18.

The FBI Uniform Crime Statistics for all homicides between 2010 and 2015 show that a total of 6,770 homicides during this period (8.9%) involved victims younger than age 18. (See Table 3.) The FBI does not supply age of perpetrator information for these data, but assuming a similar rate of offending by juvenile perpetrators, 7.6% of all homicides would be death eligible under a victim-less-than-age-18 aggravating circumstance. To understand the breadth of such an aggravating circumstance, this would translate into 5,783 capital-eligible offenses over this six-year period, or roughly 964 new capital offenses per year, if adopted nationwide.

The Risks Inherent in Child-Victim Aggravating Circumstances

The very same factors that make child killings so horrifying also make them much more susceptible to wrongful conviction. The highly emotional and highly sensational nature of these cases increases the stakes and, for the prosecutor, the rewards of a conviction and creates both conscious and unconscious incentives for misconduct. The same is true for expert witnesses, and it should come as no surprise that a disproportionate number of junk-science exonerations and wrongful convictions involve the deaths of children.

One of the nation’s most famous death-row exonerations and one of its most infamous wrongful executions involve the deaths of children.

Kirk Bloodsworth was convicted and sentenced to death in Maryland in 1984 for the brutal rape and murder of a young girl. The conviction rested on faulty eyewitness identifications by several child witnesses and the suppression of exculpatory evidence—including a police record identifying an alternate suspect who ultimately turned out to be the killer. Faced with this evidence, the jury rejected Mr. Bloodsworth’s alibi witnesses. Mr. Bloodsworth was granted a new trial, but again was convicted. This time, however, he was sentenced to life. He was released in 1993 only after subsequent DNA testing confirmed his innocence.

Cameron Todd Willingham was convicted and sentenced to death in Texas in 1992 on charges that he murdered his three children by setting the house on fire. He was executed in 2004. His case is now widely regarded as a wrongful execution based upon junk expert testimony. Mr. Willingham was convicted of capital murder after arson investigators concluded—based upon 20 factors they considered to be indicators of arson—that an accelerant had been used to set three separate fires inside the Willingham home. Their conclusions were based upon principles of fire science that have since been repudiated. Four national arson experts who examined the trial evidence concluded that the original arson investigation in the case was flawed, that the fire may well have been accidental, and that there was no scientific support for the prosecution’s expert testimony that the fire had been deliberately set.

Noted arson expert, the late Gerald Hurst said, “There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire.” Former Louisiana State University fire instructor Kendall Ryland added, “[It] made me sick to think this guy was executed based on this investigation.... They executed this guy and they've just got no idea—at least not scientifically—if he set the fire, or if the fire was even intentionally set.”

As is typical of many of the child-victim exoneration cases, the prosecution bolstered its faulty evidence with false or perjured testimony. In the Willingham case, prosecutors presented false testimony from a jailhouse informant—a drug addict on psychiatric medication—who claimed Mr. Willingham had confessed to him in the county jail. Evidence discovered years after the Willingham execution showed that the prosecution had given Webb favorable treatment, then deliberately elicited perjured testimony from Webb that he had been promised and given nothing for his testimony.8

The use of junk arson science to condemn fathers for the deaths of their children is not limited to Texas. Similarly flawed testimony has led to the conviction of other men whose children died in fires their fathers almost certainly did not set. Here are just two examples:

Dennis Counterman was convicted and sentenced to death for the supposed arson murder of his two young sons. The prosecution whited-out from a police statement his intellectually disabled wife had given them her admission that she had awakened Mr. Counterman to let him know the house was on fire. The prosecution also withheld a social services record in its possession showing that one of Mr. Counterman’s sons had a history of fire-starting. After winning a new trial as a result of prosecutorial misconduct and ineffective defense assistance, the prosecution threatened to capitally reprosecute Counterman. To obtain his immediate release, he pled no contest to lesser charges.

Also in Pennsylvania, Daniel Dougherty was arrested fourteen years after the fatal fire that killed his two sons and was charged with their murder based upon an accusation his ex-wife made during a bitter custody dispute claiming that Mr. Dougherty had confessed to setting the fire with gasoline. In fact, although the fire marshal conducted a professionally inadequate arson investigation, investigators had tested for accelerants and found none. To bolster the same type of inaccurate arson testimony that was presented in the Willingham case, prosecutors presented testimony from two prison “informants” that Dougherty had confessed to them. Like the informant in Willingham’s case, both of these witnesses also had mental health problems and had received undisclosed benefits for their testimony.

As a post-conviction evidentiary hearing was about to start on the issue of trial counsel’s ineffectiveness in failing to seek the assistance of an expert witness in fire science, Philadelphia prosecutors dropped the death penalty. The trial court then denied Dougherty a new trial, but that decision was reversed by an appellate court. However, on retrial, the trial court allowed the prosecution to read into the record the testimony of the now-unavailable fire marshal who had provided inaccurate arson testimony at Dougherty’s first trial. In a “battle of the experts,” in which the prosecutor scornfully labeled one of the nation’s foremost arson experts as nothing better than “a Kensington whore,” Dougherty was convicted again. He is currently serving a life sentence.

At least four other people wrongly convicted of child-murder have been exonerated from death row.

Sabrina Butler was 17 years old when she was accused of murdering her 9-month old son. She was wrongly convicted and condemned by the state of Mississippi in 1990. Butler’s baby, who had a heart murmur, had stopped breathing. After attempts at resuscitation failed, Butler rushed to the hospital, where the young child was pronounced dead. Based on bruises left by her resuscitation attempts, she was arrested the next day for alleged child abuse, interrogated by the police, prosecuted, and sentenced to death.

Her conviction was overturned by the Mississippi Supreme Court in 1992, saying that the prosecution had failed to prove that the incident was anything more than an accident. Prosecutors nevertheless reprosecuted her, but this time she was acquitted. It is now believed that the baby may have died either of cystic kidney disease or from sudden infant death syndrome (SIDS).

Like Ms. Butler, Rodricus Crawford was convicted and sentenced to death for the alleged murder of his infant son. As with Butler, Crawford sought help after his baby was non-responsive. Instead, he was condemned for murder in a controversial death penalty case that had attracted national attention amid evidence of race discrimination and prosecutorial excess. 

According to multiple medical experts, the local forensic pathologist botched the autopsy and, despite evidence of sepsis in the blood and pneumonia in both of the infant’s lungs, concluded that the baby had been suffocated. Crawford was prosecuted by Dale Cox, a controversial Assistant District Attorney who once told the Shreveport Times that Louisiana needs to "kill more people" with the death penalty. Cox had personally obtained one-third of all death sentences imposed in Louisiana between 2010 and 2014, and had open disdain for black parents of children born out of wedlock. In an interview with The New Yorker, he said he believed the “destruction of the nuclear family and a tremendously high illegitimate birth rate” had brought about an “epidemic of child-killings” in Caddo Parish.

Cox learned of Crawford’s case at the same time he was seeking the death penalty against Sam Jordan—a young black man with borderline Intellectual Disability and Fetal Alcohol Spectrum Disorder—for the death of Jordan's son, who had been left in his father's care over the Christmas holiday. The New Yorker reports that, when the sentencing jury returned a life verdict for Jordan, "Cox told a local TV station, 'I take it as a failure that I was unable to convince the jury to kill him.'” 

Cox unconstitutionally struck black jurors from Crawford's case, which ultimately led the Louisiana Supreme Court to overturn Crawford's conviction and death sentence. Cox then argued a vengeful version of Scripture to the jury, quoting the passage: “You shall have a millstone cast around your neck and you will be thrown into the sea." By the time the Louisiana Supreme Court ruled on Crawford's appeal, the medical evidence of innocence had become so powerful that the trial court released Crawford on bail. In April 2017, prosecutors finally agreed to dismiss all charges against him.

Madison Hobley and Kennedy Brewer also have also been exonerated after having been wrongly condemned for the deaths of children. (You can read more details about their cases on DPIC’s page on Innocence Cases.)

Child-victim aggravating circumstances put at risk other parents or partners of physically frail or vulnerable children. It is estimated that hundreds of parents and other caregivers are imprisoned, some on death row, as a result of alleged shaken baby deaths. The junk diagnosis has been discredited in medical and legal journals, and yet prosecutions continue.

Ha'im Al Matin Sharif (formerly Charles Robins) was released from prison on June 7, 2017 after spending more than 28 years on Nevada's death row. He had been convicted and sentenced to death in December 1988 on charges that he had murdered his girlfriend's 11-month-old daughter, Britany Smith, in April 1988. The conviction was based upon the testimony of a local medical examiner that Britinany had been physically abused and murdered, and was supported by the testimony of the victim's mother and other relatives who testified to having seen Sharif abuse the baby. The jury determined that Sharif had physically abused Britany over a several-month period, including breaking her leg, and that the murder had been committed by means of torture.

Mr. Sharif's conviction and sentence had been upheld by the state courts on direct appeal and in initial state post-conviction proceedings. Because of a conflict of interest in the Nevada Federal Defender's office, the Federal Public Defender for the District of Arizona was appointed in 2012 to handle Mr. Sharif's federal court habeas corpus petition, and for the first time in the case, his lawyers conducted a forensic investigation of the medical evidence relating to the cause of Britany's death and the physical injuries she had sustained in the preceding months. That investigation produced evidence that that the baby had not been murdered at all, but had died from Barlow's disease (infantile scurvy), that Mr. Sharif had not been present at the time Britany sustained certain other injuries, and that the other physical injuries—including her broken leg—were also caused by scurvy. 

As the forensic investigation was proceeding, Britany's mother, Lovell McDowell, and her brother revealed for the first time that Las Vegas police and prosecutors had threatened to imprison her and take away her children unless they testified against Mr. Sharif. These witnesses also indicated that when they told authorities that their proposed testimony was not true, they were instructed to testify as they had been told to ensure that Mr. Sharif would be sentenced to death. Ms. McDowell specifically recanted her testimony that Mr. Sharif had abused Britany, saying her testimony about abuse had been a product of threats and coercion. The federal court ruled that Mr. Sharif had made a sufficient showing that he was “actually innocent” and that “his death penalty was improperly imposed,” and held the federal court proceedings in abeyance to permit him to present the new evidence to the state courts.

The state trial court refused to hear the evidence, dismissing Mr. Sharif's claims on procedural grounds. On September 22, 2016, the Nevada Supreme Court unanimously decided that Mr. Sharif "ha[d] presented specific factual allegations, that if true, would show that it is more likely than not that no reasonable juror would have convicted him of first-degree murder and child abuse beyond a reasonable doubt or found the single aggravating circumstance used to make him death eligible.” It ordered the lower court to conduct an evidentiary hearing on his innocence claim and on the claims of police and prosecutorial misconduct. Subsequently a doctor retained by the Clark County District Attorney’s office agreed that Britany had suffered from scurvy. Although prosecutors would not agree to a complete exoneration, they offered to vacate Mr. Sharif's conviction and death sentence for first-degree murder and amend the judgment to second-degree murder with a sentence of time served, which would result in Mr. Sharif's immediate release.

Jeffrey Havard (pictured) is facing execution in Mississippi despite the fact that key evidence against him came from a medical examiner who has been harshly criticized by experts in his field. Havard was convicted and sentenced to death in 2002 of murdering his girlfriend’s 6-month-old daughter. His conviction was based primarily on the testimony of Steven Hayne, a state pathologist, who testified he found symptoms of "shaken baby syndrome" and sexual abuse on the infant. The sexual abuse finding allowed prosecutors to seek the death penalty in the case. Later investigations into Hayne's credentials indicate he had never been certified in forensic pathology by the American Board of Pathology. He had taken the exam in 1980, but failed it.

Dr. Hayne acknowledged having performed as many as 1,700 autopsies in a year—far more than the number recommended by experts—in addition to having his own pathology practice. According to Dr. David Fowler, chief medical examiner in Maryland and a former chairman of the standards committee for the National Association of Medical Examiners, that number is "beyond defensible." Hayne's autopsy in Havard's case has been reviewed and discredited by other expert pathologists. Other cases in which he had provided pivotal prosecution testimony have been overturned through DNA testing.

In April 2015, the Mississippi Supreme Court unanimously ruled that Havard was entitled to an evidentiary hearing to present new scientific evidence on the unreliability of shaken baby diagnoses. At the time, Dr. Hayne admitted to The Jackson Clarion-Ledger newspaper that there was "growing evidence" that his shaken baby diagnosis was "probably not correct" and that he "didn't see any evidence of sexual assault." In that evidentiary hearing in August 2017, Dr. Hayne backed off his shaken baby diagnosis, but still insisted the death was homicide. The court did not permit testimony on his recantation of his sexual abuse diagnosis. Defense expert, Dr. Michael Baden, testified that "shaking had nothing to do with the death. All the injuries," he said, "were entirely consistent with blunt force impact, consistent within the manner in which Mr. Havard on day one said that the baby had fallen." The evidentiary hearing concluded in August 2017 and a decision is pending.

(R.Balko, "The Watch, Controversial medical examiner backs off ‘shaken baby’ claim in death penalty case," The Washington Post, August 16, 2017; C. Madden, "How did baby Britt die? Shaken baby syndrome at center of hearing in 2002 death penalty case," The Nachez Democrat, August 15, 2017; J. Mitchell, "Changing science may give death row inmate new hearing," The Jackson Clarion-Ledger, April 2, 2015; R. Balko, "Despite Evidence From Discreted Medical Examiner, Mississippi's Jeffrey Havard Nears Execution," Huffington Post, January 8, 2012; C. Robertson, "Questions Left for Mississippi Over Doctor's Autopsies," New York Times, January 7, 2013.)

Elizabeth and Samuel Glick were Amish dairy farmers. They took their 4-month-old daughter, Sara Lynn, to the hospital, where she died. Doctors saw hemorrhaging in her right eye and extensive bruising, and suspected child abuse; the autopsy showed blood and swelling in her brain. The county coroner ruled her death a homicide. Parents like the Glicks face potential capital prosecution under child-victim aggravating circumstances. But there was no homicide. The actual cause of Sara Lynn’s death was a combination of vitamin K deficiency and rare genetic (bilesalt transporter) disorder.

Vulnerable or disfavored defendants are also at increased risk. In the case of Commonwealth v. Alejandro Mendez in Centre County, Pennsylvania, near Penn State University, a Costa Rican immigrant was capitally charged and held in custody for two years without a trial after the death of his infant son, Lucas, from subdural bleeding and retinal hemorrhaging. Again, there was no crime. The Mendez family had come to the United States so his wife could be treated for cancer. However, at the same time she was breast feeding Lucas, she had been given antibiotics that impeded the baby’s absorption of vitamin K. As a result, Lucas developed a bleeding disorder and could not clot. Prosecutors would not admit their error, and—facing death—Mendez was forced to plead no contest to manslaughter charges and be deported to Costa Rica.


5 See, e.g., FBI Uniform Crime Statistics, Crime in the United States 2011, Table 9: Murder Victims by Age by Weapon, https://ucr.fbi.gov/crime-in-the-u.s/2011/crime-in-the-u.s.- 2011/tables/expanded-homicide-data-table-9.

6 HB 351. Although the precatory language to House Bill 351 described the proposal as “AN ACT making a person who knowingly causes the death of a child guilty of capital murder,” the bill actually would have authorized capital prosecution of a defendant whenever “he knowingly causes the death of … [a]nother who is less than 18 years of age.”

7 Alexia Cooper and Erica L. Smith, Bureau of Justice Statistics, Homicide Trends in the United States, 1980-2008 (Nov. 2011), https://www.bjs.gov/content/pub/pdf/htus8008.pdf.

8 See DPIC, Executed But Possibly Innocent, http://www.deathpenaltyinfo.org/executedpossibly-innocent. See also Steve Mills and Maurice Possley, Texas Man Executed on Disproved Forensics, Chicago Tribune (December 9, 2004); Anderson Cooper, Was an Innocent Man Executed in Texas?, Anderson Cooper 360 Blog (April 9, 2007); Maurice Possley, The Prosecutor and the Snitch. Did Texas execute an innocent man?, The Marshall Project (August 3, 2014).


By Robert Brett Dunham
August 16, 2017