Legislature Should Raise Execution Eligibility Age

Lexington Herald Ledger

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.