Recent Op-Eds Regarding Roper v. Simmons
Julie Baxter, The Coloradoan
Vivian Berger, National Law Journal
Jeffrey P. Brosco, Tampa (FL) Tribune
Sheila S. Hopkins, Tallahassee Democrat
Rosalynn Carter, Miami Herald
Mark S. Wright, Kentucky Courier-Journal
William S. Sessions, Lexington Herald Leader
Richard C. Dieter, Los Angeles Daily Journal
July 21, 2004: The Coloradoan (Fort Collins, Colorado)
Even teen killers should be allowed to live to regret it By Julie Baxter
Remember those misspent days of your youth?
When you were invincible, intelligent and incapable of making a bad decision?
Now, can you remember just how vulnerable, foolish and gifted you were at making rotten choices?
We all did things in our younger days we aren't proud of, things we regret, things that after the heat of the moment passed, we would have done much differently. Turns out there's good cause for that; our brains just weren't ready for heavy thinking.
A recent study by government researchers revealed that the last areas of the brain to mature are those faced with weightier tasks such as reasoning and problem solving. Those functions don't solidify until sometime between 18 and 21.
So for all those times you look back and wonder "What was I thinking?" the answer is you weren't, at least not at the level to which you've become accustomed.
Dr. Mark Wellek, a Phoenix psychiatrist and past-president of the American Society of Adolescent Psychiatry, explained it this way:
The amygdala -- the central part of the brain that sends out impulses in reaction to the environment and perceived threats -- is very active in 15-, 16- and 17-year-olds. Meanwhile, the prefrontal cortex -- the part of the brain just behind your eyes and forehead that makes value judgements, plans ahead and looks at the rightness and wrongness of things -- is just starting to develop.
Most of us can recall embarrassing, reckless or crazy stories. But a good number of us don't have a criminal record because of them. Imagine if you faced the loss of a chance to look back with regret and remorse.
Since 1976, 22 young people have lost that chance. That's how many juveniles have been executed in the United States since the death penalty was reinstated. (Texas, by the way, is responsible for 13 of those executions, according to "The Juvenile Death Penalty: Death Sentences and Executions for Juvenile Crimes" by Victor Streib, a law professor at Ohio Northern University and considered by some the preeminent expert on the subject.)
Another 72 await execution in 19 states (thankfully, Colorado is not among them), according to Streib's study.
The United States, Wellek said, is the last nation in the world that executes juveniles.
The U.S. Supreme Court is faced with stopping the practice as it hears the case of Christopher Simmons. Simmons, now 27, was sentenced to death in Missouri for a murder he committed at 17. The state Supreme Court overturned the sentence, calling the execution of juveniles cruel and unusual punishment. The state has appealed, and now the nation's top judges will take their turn at sorting out whether young killers should die for their crimes.
Wellek said it is not that 16- or 17-year-olds don't know the difference between right and wrong. Instead, the issue, he said, is how their developing brains react in stressful situations and the environmental support they receive to keep those reactions in check.
"The part of the brain that knows right from wrong is not operating (when youths are) under duress," said Wellek, who helped write the brief that landed before the Supreme Court.
Young people, especially males, who end up on death row are struggling with impulse control like any other teenager. But unlike those others, they have been beaten or abused, are depressed or suicidal, and don't have the resources of your average teen, Wellek said. There are no friends to pull them away from a fight or drive their cars home when they drink too much, no parents to talk to, Wellek said. In short, there is no support network to keep them from making a choice they will regret forever.
Juvenile killers are killers, but they're still children who have much living and learning to do.
It seems an injustice to rob them of a chance at redemption.
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April 26, 2004: National Law Journal
"Stop executing minors," By Vivian Berger
Special to The National Law Journal; Vivian Berger, an NLJ columnist, is a professor emerita at Columbia Law School.
Virtually alone among nations, the United States puts to death juvenile killers-youths who were less than 18 years old at the time of their crimes, putting us in the dubious international company of Iran and the Congo.
The U.S. Supreme Court has granted certiorari for next term to Roper v. Simmons, allowing the court to revisit whether the death penalty for juveniles violates the Eighth Amendment. [...]
By a 5-4 margin, the Supreme Court declined to prohibit such executions in Stanford v. Kentucky , a consolidated case involving defendants who had murdered at the ages of 16 and 17. The legal landscape has changed in some relevant ways since then, affording hope that Simmons will end what Justice John Paul Stevens, dissenting in In re Stanford, called a "shameful practice."
The high court has issued two pronouncements on the subject of juvenile executions: Stanford, dealing with older teens, and Thompson v. Oklahoma , dealing with a 15-year-old. In Thompson, the court held that the challenged sentence was unconstitutional; the present Eighth Amendment line has been drawn at 16 years of age.
For a long time, the Supreme Court has determined whether a practice is cruel and unusual by looking to the "evolving standards of decency that mark the progress of a maturing society." Its members have, however, divided over the proper scope of this inquiry. Stevens, writing for the Thompson plurality, took into account not only pertinent legislative enactments and the actions of sentencing juries [deemed relevant by all of the justices], but also the views of professional and religious bodies and international opinion.
The Stevens group stressed, too, that the court must make its own judgment whether, in the circumstances before it, a death sentence does not measurably contribute to the acceptable goals of capital punishment: retribution and deterrence. Applying this approach, Stevens found that contemporary standards barred imposing death on 15-year-olds. He considered, for example, that in the 18 states with capital statutes setting minimum ages, all drew the line above the age of 15, and juries very rarely sentenced such young defendants to death. Also, numerous respected organizations and other nations had rejected the death penalty for juveniles. Finally, the immaturity, greater impulsiveness and vulnerability of adolescents reduce both their culpability and their capacity to think about the long-range consequences of their actions.
Justice Antonin Scalia's dissent in Thompson prescribed a much narrower inquiry, limited to a statutory head count and an inspection of jury verdicts. In Stanford, Scalia, writing for the court, upheld the juvenile death penalty for teenagers older than 15; he relied almost solely on the fact that a majority of capital states countenanced their execution.
The tide turned with 'Atkins'
This is where matters stood until Atkins v. Virginia , finding execution of the mentally retarded unconstitutional. Stevens' majority opinion, joined by all but justices Scalia, Thomas and Rehnquist, resurrected the broader Thompson methodology; it cited not only legislative changes since 1989 and the rarity of such executions, but looked to "social and professional consensus" and world sentiment. How might Atkins affect Roper v. Simmons? Even more states  than in the Atkins analysis  immunize youths from the death penalty, and, as in Atkins, their execution is highly infrequent. As with the mentally retarded, many groups and countries repudiate capital punishment for juveniles. Finally, deterrence and retribution are equally inapplicable to both groups because of their lesser ability to reason, think ahead and control their conduct.
Yet it is by no means sure that the four justices on record as ready to overrule Stanford can gain the necessary fifth vote; certiorari was, after all, granted at the state's behest. By this time next year we will know the answer.
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April 15, 2004: Tampa (FL) Tribune
"Florida Ought Not Execute Young Offenders," By JEFFREY P. BROSCO
Floridians should be proud that our Legislature has taken a lead role in the nationwide juvenile death penalty debate.
Until recently, our political leaders were on track in calling for the minimum age for execution to be 18; now this wise decision risks being derailed by a few who proposed an amendment lowering the age to 17. While a one-year difference may seem arbitrary and inconsequential, every year counts for children in this age group.
Adolescence is a period of enormous developmental change - physically, cognitively and emotionally. Especially under duress, teenagers are more likely than adults to act impulsively, to take risks, to respond to peer influence, to overlook or disregard adverse consequences and to exercise poor judgment. This is why persons under the age of 18 are considered minors and are denied the right to vote, to consume alcohol, to enter into contracts, to serve on juries and to engage in military combat.
The execution of juvenile offenders raises a number of legal and ethical issues, but for many it has become a question of science and medicine. Why? Because as the U.S. Supreme Court said in prohibiting the execution of mentally retarded offenders, the death penalty is the most severe punishment to be reserved for adults. As a health professional, I know that 16- and 17-year-olds do not yet possess the maturity and mental capacities of adulthood and should not, therefore, be sentenced to die.
Indeed, neuroscientists have long believed that the part of the human brain that controls impulse, aggression and anticipation of consequences does not mature fully until well beyond age 18, possibly as late as age 23. Now, with the benefit of cutting-edge technology that allows us to "watch" the adolescent brain in action, researchers at the National Institutes of Health and elsewhere are confirming this knowledge with new scientific data. This emerging evidence has led prominent neuroscientists to suggest that it is unfair and unreasonable to impose expectations of adult-level capacities on the thinking and behavior of minors.
Furthermore, medical histories of juvenile death row inmates show that many of these young people have been victimized by childhood sexual and physical abuse or neglect. Many also have congenital conditions or brain injuries that led to later cognitive impairment. Any early brain insult can disrupt adolescents' emotional and cognitive development, exacerbating the existing vulnerabilities of youth.
Unfortunately, most of these children never received the treatment that could have prevented their emotional and cognitive impairments as adolescents.
Teenagers who commit serious crimes should not be absolved of responsibility, but accountability should be commensurate with adolescent growth and capacities. The ultimate, irrevocable adult penalty should not be imposed on those who are not yet adults.
Health professionals in Florida and throughout the country - especially those who treat and study children - are urging the Legislature to amend the age back to 18 and to pass the bill. There is good reason why other states are raising the age of execution to 18; Florida should not be left behind. It's the wise thing to do.
Jeffrey P. Brosco, M.D., Ph.D., is a developmental-behavioral pediatrician and an associate professor of clinical pediatrics at the University of Miami School of Medicine, as well as director of clinical services at the Mailman Center for Child Development.
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April 12, 2004: Tallahassee Democrat
"It's time to put a legal end to juvenile execution," By Sheila S. Hopkins
Children are different from adults. That is why society does not allow them to buy tobacco or alcohol, own a handgun, serve in combat or vote.
With few exceptions, a general rule of law is that parents have an obligation to financially support their children until age 18 when they would be considered adults.
The Florida Catholic Conference joins other voices supporting the passage by the Florida Legislature of SB 224 and HB 63, with no amendments, which would make the death penalty an authorized punishment only for those who are 18 years of age or older at the time they committed a capital crime.
Our hearts go out to the victims of a horrible crime, and serious crime deserves significant punishment. Few of us know the pain felt by those who have lost a loved one. Thoughts of revenge are often the immediate reaction. Just as God put a mark on Cain to protect him from those who would seek revenge for the death of his brother Abel, we need to put punishment in the proper perspective for youth who have not reached maturity.
Advances in science have revealed that the brain continues to develop up until the early 20s. Immaturity and impulsiveness of emotions, in addition to the hormone and emotional changes to the body, are indications that adolescents have not yet achieved adulthood; therefore, they should be judged as having less culpability for their actions. Life in prison without possibility of parole is an alternative available in the criminal justice system. All people are created in the image and likeness of God, but everyone is not given the same gifts nor do they end up in a home where they are loved and nurtured. A 2003 study of juvenile offenders published in the Juvenile Correctional Mental Health Report found that more than 30 % of death row juvenile offenders suffered from at least 4 significant life-altering traumas. Among them were abuse or neglect, psychiatric disorders, substance addiction, family dysfunction or poverty. Moreover, such mitigating evidence was presented in less than half of the offenders' trials. Most children under 18 have not had to cope with even one of these traumatic experiences.
Evolving standards of decency played a key role in the abolition of the execution of mentally retarded in a Virginia case, taking into consideration laws in effect in 30 states banning this practice.
Momentum is building nationally for a ban on executing juveniles as 13 other states, in addition to Florida, introduced legislation to ban the juvenile death penalty in 2003. Recently Montana, Indiana, South Dakota and Wyoming added their names to the list of 31 states that do not allow execution for 16- and 17-year-old offenders.
Poll results released in December 2003 by ABC News regarding Americans' opinion on the fate of "sniper" Lee Malvo were in favor of life imprisonment, rather than death - the same as the verdict rendered by the Virginia jury that heard all the testimony about his participation in these heinous crimes.
Florida has not executed a juvenile offender since 1954, and there are only three juvenile offenders on Death Row. We urge senators and representatives to take up this legislation, which has passed in at least one of the Florida chambers in 2000, 2001 and 2003. In the near future, a Missouri case will be before the U.S. Supreme Court, which could declare execution of juveniles "cruel and unusual punishment."
Let's stand up now "for the least among us" and choose to end capital punishment for 16- and 17-year-old offenders.
Sheila S. Hopkins is associate for social concerns for the Forida Catholic Conference in Tallahassee
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APRIL 7, 2004: The Miami Herald
"No death penalty for juveniles," By Rosalynn Carter
Florida Senate Bill 224, which would eliminate the death penalty for individuals who commit offenses when they are under the age of 18, is under consideration in Florida during this legislative session. Florida should join 31 other states that recognize that executing juveniles violates current principles of American justice.
Our country has sought to protect juveniles in almost every facet of their life, enacting laws prohibiting those younger than 18 years old from using alcohol or cigarettes, entering into contracts, voting or serving in armed combat. We spend millions on drug-prevention outreach and sex education in our schools. Yet, when it comes to the most serious of crimes committed by juveniles, we fail to acknowledge their lessened culpability and inflict the severest of punishments.
Adolescents are not adults. They lack full capacity to reason, control impulses and understand consequences. They do not handle social pressures and other stresses like adults do and therefore, are less culpable than adults who commit crimes. Scientific studies demonstrate their lessened responsibility. We previously believed that the brain was fully developed by age 14, but recent studies have revealed that it continues to mature until the early 20s.
We also know that the frontal lobe, which controls the brain's most complex functions -- particularly reasoning -- undergoes more change during adolescence than at any other time. It is the last part of the brain to develop.
Such findings have led the American Psychiatric Association, the American Academy of Child and Adolescent Psychiatry and the American Society of Adolescent Psychiatry to oppose the death penalty for juveniles.
If adolescents who grow up in warm and loving environments cannot fully reason or control their impulses as research has shown, then abused children suffer immense emotional and developmental disadvantages. A 2003 study found that on average, juveniles on Death Row have had multiple experiences of physical or sexual abuse, substance abuse, mental disorders or are living in poverty. An earlier study of 14 juveniles sentenced to death found that 12 had been physically or sexually abused, some at the hands of relatives. We as a society have failed to protect or treat these children and are ill prepared to deal with them when some of them commit horrible crimes.
Acknowledging the lesser culpability of juvenile offenders does not minimize the suffering and impact upon their victims' families. Tragically, there are juveniles who commit terrible crimes. But punishment is to be imposed according to the degree of culpability of the offender.
The United States will soon become the last nation on Earth that executes juvenile offenders. There are only four countries remaining where juveniles reportedly are executed, and the United States and Somalia are the only two countries that have not ratified the U.N. Convention on the Rights of the Child, which prohibits capital punishment for those under 18. Somalia has recently signed the Convention and announced its intention to ratify.
Florida has a great opportunity to join the growing movement to abolish the juvenile death penalty. A Gallup poll released in May 2002 found only 26 percent of Americans support the death penalty for offenders under age 18. Montana, Indiana, South Dakota and Wyoming are the most recent states to have passed laws banning the severest of punishments for child offenders. Similar bills are pending in a handful of other states.
I hope the Supreme Court will rule later this year when it hears the case of Roper vs. Simmons that juvenile executions are unconstitutional ''cruel and unusual punishment.'' Meanwhile, the American public should send a message to the court through their state legislatures that ''evolving standards of decency'' do not tolerate executing juvenile offenders.
Rosalynn Carter, former first lady of the United States, is the vice-chair of The Carter Center.
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MARCH 3, 2004: Kentucky Courier-Journal
"The case against teen executions," by Mark S. Wright, past president, Kentucky Psychiatric Association
The U.S. Supreme Court in 2002 determined that it was unconstitutional to execute the mentally retarded because their "disabilities in areas of reasoning, judgment and control of their impulses" mean "they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct." Even those who support the death penalty agree that mentally retarded defendants should not be executed because they are not fully aware of the consequences of their actions.
Juveniles are not adults. Recent brain research shows that juveniles should also be excluded from the death penalty for similar reasons.
Juveniles are far less developed than we ever knew, according to landmark research. The studies have prompted many in the medical, psychological and scientific communities to support proposals that would bar those under the age of 18 from capital punishment.
Those in favor of the death penalty for juveniles argue that 16 and 17 year olds who commit adult crimes should be subject to adult penalties, including death. No one is suggesting that juveniles who commit heinous crimes should not be responsible for their actions, but recent discoveries on juvenile development, as reported by the Harvard Medical School, challenge the commonly held view that the brain finishes development at puberty.
Just as adolescents exhibit growth spurts, various features of their brains undergo dramatic changes as well. Frontal cortex and the prefrontal cortex, among other parts of the brain, do not develop fully until the early to mid 20s. These are the "executive" areas of the brain, which, among other things, calm emotions, control impulses, make decisions, process abstract ideas and organize and plan multiple tasks.
Any parent of a 16 or 17 year old knows the significant limits of the judgment of their children.
Scientific proof that even normal adolescents are in far less control of their thoughts, impulses and action, shows us that they should not be held to the same standard of punishment as fully developed adults.
The law recognizes that kids are different. The law prohibits persons under the age of 18 from voting, serving in military combat and on juries, making medical decisions, entering into contracts, marrying, leaving home, buying cigarettes and drinking alcohol precisely because adolescents are less mature than adults.
Doctors oppose the death penalty for juvenile offenders. Experts, including doctors, pediatricians, psychiatrists, and neuroscientists assert that adolescents are not adults - physically, mentally or emotionally. In recognition of his scientific fact, the American Society for Adolescent Psychiatry, the American Academy of Child and Adolescent Psychiatry and the 40,000-member American Psychiatric Association have all adopted policies specifically opposing capital punishment for those under 18.
The medical community is not alone. Nationally, support is low for the death penalty for juveniles. Only 26% favor the death penalty for juveniles. A 2002 statewide poll showed that Kentuckians support a bill to eliminate the death penalty for 16 and 17 year olds by a 2-to-1 margin.
The sentencing recommendation by the jury in the Lee Malvo case is a clear signal that the public is reluctant to condemn juvenile offenders to death, even for the most horrendous of crimes. A recent ABC News poll found that 62% of Americans support life in prison over a death sentence for a juvenile offender. People understand that minors are less culpable than adults.
Juries are less willing to put young offenders to death. In the 1990s, juries sentenced more than 10 juveniles to death each year. In 2003, only 2 minors were sentenced to death. The annual death-sentencing rate for juveniles has been in decline for 4 years and is now at its lowest point in 14 years.
This statistical decline is one of several indicators that the time has come to abolish the practice of sentencing to death and executing juvenile offenders. A national consensus has emerged, with nearly every major medical and legal association, religious denomination, and children's group opposing the practice.
28 states and the federal government prohibit the execution of juvenile offenders. Of the 21 states that permit juvenile offender executions, only 15 have juveniles on death row, and only 7 have used the punishment. A growing number of states are considering legislation to ban the practice. 7 out of 10 Americans oppose the death penalty for juvenile offenders. Nearly every major religious denomination, children's group, and legal and medical association oppose the practice.
World Consensus. The United States is the only nation in the world that continues to carry out the execution of juvenile offenders. Iran and Pakistan have both indicated that they will no longer carry out such executions.
Kentucky should no longer execute juveniles. In this session, the Kentucky General Assembly is expected to take up the issue of juvenile executions. No matter how Kentucky voters feel about the death penalty, the state has no business executing juvenile offenders.
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FEBRUARY 20, 2004: The Lexington Herald Leader
"Legislature Should Raise Execution Eligibility Age" by William S. Sessions, former Director, FBI
I urge Kentucky's legislators to pass and Gov. Ernie Fletcher to sign legislation to raise the age of eligibility for capital punishment to 18.
I write as a citizen with many years of law enforcement experience, having served three presidents as the director of the FBI. I also was chief judge of the U.S. District Court for the Western District of Texas and, before that, was a U.S. attorney.
I am also privileged to be a member of a blue-ribbon committee sponsored by the Constitution Project's Death Penalty Initiative. The committee is composed of current and former judges, federal prosecutors, defense lawyers, law enforcement officers, governors, victim advocates, state attorneys general, mayors, religious leaders and journalists.
Its members include Beth Wilkinson, who prosecuted the Oklahoma City bombing case; Charles Gruber, past president of the International Association of Chiefs of Police; W.J. Michael Cody, former Tennessee attorney general; Texas victim advocate Paula Kurland; and Thomas A. Gottschalk, executive vice president and general counsel for General Motors Corp.
One of the committee's recommendations, as set forth in Mandatory Justice: Eighteen Reforms to the Death Penalty, is: "Persons under the age of 18 at the time of the crimes for which they were convicted should not be eligible for the death penalty."
Other recommendations include ensuring competent lawyers and adequate resources for defendants in capital cases, as well as DNA testing where it would help establish that an execution would be unjust.
The committee's unanimous recommendation about juveniles was included because we were convinced that cases involving juveniles pose a "serious risk of error" and that "the integrity of the system is threatened by the defendants' difficulties in navigating the system and assisting in their own defense."
Members were also concerned about evidence that a child or adolescent generally does not possess the level of moral responsibility and culpability that society expects of an adult. Although crimes committed by minors may be reprehensible and worthy of severe punishment, society needs to recognize the undeveloped moral capacity of minors and their susceptibility to powerful negative influences.
Kentucky now holds juveniles who commit serious crimes accountable in significant ways. In Kentucky, a juvenile convicted of a capital offense is subject to life without the possibility of parole for 25 years and, for a non-capital felony, to life imprisonment.
Others oppose the juvenile death penalty: the American Bar Association, the American Psychiatric Association, the American Academy of Child and Adolescent Psychiatry, the National Mental Health Association, the National Center for Youth Law, the Coalition for Juvenile Justice and the American Humane Association.
These organizations, along with The Constitution Project, were cited in the recent groundbreaking decision of the Missouri Supreme Court, which overturned the death sentence of Christopher Simmons, who was convicted of a crime he committed at age 17. The court ruled that Simmons' death sentence violated his Eighth Amendment protection from cruel and unusual punishment.
In doing so, the court declared that "a national consensus has developed against the execution of juvenile offenders." The U.S. Supreme Court will review this decision in its next term, but the Missouri Court's decision should lead the way for Kentucky's governor and the 2004 General Assembly to abolish death as a possible punishment for juveniles.
The national consensus cited by the Missouri Supreme Court is supported by national and Kentucky polls. A 2003 ABC poll and a 2002 Gallup poll found that only 26 percent nationwide viewed death as appropriate for juveniles.
The University of Kentucky Survey Research Center's summer 2002 statewide poll found that Kentuckians support a bill to eliminate the death penalty for 16- and 17-year-olds by a 2 to 1 margin (63 percent versus 32 percent).
The Constitution Project's Death Penalty Initiative itself takes no position for or against the death penalty. I, for one, support capital punishment. But if we are to have a death penalty, we must see that it is fairly and rationally applied. Executing those who commit crimes as juveniles fails to serve the purposes of justice, deterrence or appropriate retribution.
I encourage the passage of legislation that prohibits the execution of 16- and 17-year-olds.
© 2004 Lexington Herald-Leader and wire service sources. All Rights Reserved.
FEBRUARY 19, 2004: Los Angeles Daily Journal
"Court Must End Death Penalty for Children," by Richard C. Dieter, Executive Director, Death Penalty Information Center
(A slight revision to improve accuracy was made from the published edition.)
The U.S. Supreme Court took a step in the right direction when it agreed to review the constitutionality of executing juvenile offenders in Roper v. Simmons. As a society, we value our youth.
We put great hope in them for our future, and we do not give up on them. For these reasons and more, juveniles ought not be subject to the death penalty.
As this case moves forward, many disparate groups can be expected to step forward and decry such a solution to juvenile crime. Our most respected educators, church leaders, national youth organizations, major civil and human rights organizations, correctional officers, doctors and psychologists will proclaim that a national consensus exists against such executions.
Another indicator of the solidifying support to do away with this extreme use of capital punishment is that four Supreme Court justices have called for its demise.
In In re Stanford, 537 U.S. 968 (2002), Justices John P. Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer stated, in their dissent, that "[t]he practice of executing [juveniles] is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice."
Roper will be a defining moment for the Supreme Court and the country. Many in the United States will be watching the decision for reassurance that, despite threats to our nation in the past few years, our commitment to the expansion of human rights remains intact.
The world will be watching, too, as we grapple with an issue that has distanced us from our closest allies and challenged our role as a beacon of progressive change.
It would be a tragedy of immense proportions if the court missed the signs that the country is ready for this change.
Our understanding of children's maturation throughout their teen years, particularly in the area of brain development, is far greater than in the past.
To lock us into another decade of embarrassing executions of teenage offenders would be a serious setback for our principles.
Of course, lofty words alone cannot and will not win the day in the Supreme Court. In Atkins v. Virginia, 536 U.S. 304 (2002), its decision banning the execution of the mentally retarded in 2002, the court laid down a blueprint for examining whether other groups also should be spared the death penalty.
The case for exempting juveniles is stronger than the one made for the mentally retarded. In Atkins, the court used the evolving standards-of-decency test to determine whether executing the mentally retarded is cruel and unusual punishment.
Comparing some of the objective criteria that the court used in Atkins as measures of the standards of decency illustrates why the court also should exclude juveniles from capital punishment in Roper:
- The number of states that bar the execution of juvenile offenders. A total of 29 states (17 with death-penalty laws and 12 that exclude the punishment) do not allow the execution of juveniles. Fewer than 29 states prohibited the execution of the mentally retarded when certiorari first was granted on the case that led to Atkins.
- The number of juveniles executed in the United States since the reinstatement of the death penalty. That number is 22. The number of mentally retarded defendants executed was twice as large at the time of Atkins. For both kinds of death-row inmates, the fact that the punishment is rarely carried out is a sign of the unusualness of such a punishment.
In the past 30 years, 86 percent of our states have not executed a juvenile, despite the court's allowance of such sentences. Only three states have executed a juvenile offender in the past 10 years.
- The number of juveniles on death row. That number is 73 of a death-row population of 3,500. We do not know the exact number of people with mental retardation who were on death row during Atkins, but some estimates have indicated that 5 percent to 10 percent of death-row inmates may suffer from this handicap, indicating a larger use of that penalty.
- Public opinion for or against using capital punishment against the particular class of inmate. Though not decisive for the court, a recent Gallup Poll indicated that 69 percent of Americans are against the execution of juvenile offenders. Moreover, other nations are more clearly and adamantly opposed to the execution of juvenile offenders than they were for the mentally retarded. Every country in the world except the United States and Somalia has ratified the United Nations treaty on the Rights of the Child that forbids the juvenile death penalty. In many developing countries, the ability to diagnose mental retardation was in its early stages during Atkins, so that issue is not as sharply defined. But for youth, there is an international clarity of definition and unanimity of conclusion that this practice should end.
- The burden on trial courts. The eradication of the death penalty for juveniles would place no hardship on our courts and, in fact, would eliminate many contentious cases. Its implementation would be immediate and simple. There would be no problem with definition or with the proper procedure for determining one's status under this decision, as there has been with the issue of mental retardation.
Perhaps the only measure that might indicate that the country's rejection of the juvenile death penalty lags behind its rejection of the death penalty for the mentally retarded is the surge of state legislative enactments banning executions of the mentally retarded between the court's decisions in Penry v. Lynaugh, 492 U.S. 302 (1989), allowing such executions, and Atkins.
Only two states barred the execution of the mentally retarded in 1989. Eighteen prohibited such executions by the time Atkins was decided in 2002.
The increase in state prohibitions of juvenile executions has not been as dramatic. But that is precisely because many of the states' death-penalty laws already used an age limit of 18 and thus did not have to make any change. Indeed, Justice Antonin Scalia in his dissent in Atkins criticized the newness of the mental retardation laws as a questionable ground to establish a national consensus on such executions.
State legislative changes on the issue of the juvenile death penalty have moved in the direction of exempting juveniles from the death penalty.
Even after Stanford v. Kentucky, 492 US 361 (1989), when the Supreme Court opened the door to states lowering the age of death-penalty eligibility to 16, not one state legislature has done so. And six more states have been added to the group that sets the bar at 18 years.
In the early 1990s, some criminologists and politicians frightened the country with fears of a crime wave by juveniles. They were described as "superpredators," and Draconian laws were passed to stem this onslaught.
The crime wave never happened, and in fact juvenile crimes dropped more precipitously than other crimes.
But the fears persisted and caused legislators to refrain from readjusting their criminal laws for juveniles. (The lingering death penalty for those who committed their crime at 16 is an example of such overreaction.)
Juveniles are certainly capable of horrendous crimes. Indeed, it is their very immaturity, their impetuosity (often fueled by substance abuse), their willingness to be led, their only partial understanding of the immense consequences of their actions and, in many, their rage at having been abused themselves that may allow them to commit acts that appear senseless, callous and brutal.
But the death penalty is supposed to be reserved for the "worst of the worst" offenders: not necessarily those who commit the most heinous acts but those who are the most culpable, responsible, in control of their impulses, and least likely to change. This does not describe juveniles.
Teenagers convicted of murder are clearly responsible for their actions. They should be punished severely. Life in prison may well be appropriate.
When that happens, they inevitably will change, just as all of us have changed dramatically from developing 16-year-olds to the adults we are now.
Society consistently draws bright lines of age requirements for voting, serving on juries, buying alcohol and participating in combat. At least the same standards should apply before we completely give up on any young person. The death penalty for juveniles abandons all hope for change.
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