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.