Los Angles Daily Journal

February 19, 2004


By Richard C. Dieter, Executive Director, Death Penalty Information Center

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.


Los Angeles Daily Journal