Court Must End Death Penalty for Children

Los Angles Daily Journal

February 19, 2004

Editorial

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.