Youths on death row

Globe and Mail (Canada)

April 5, 2004

An astonishing 75 juveniles are on death row in the United States, the only country apart from Iran that formally executes youths 17 and under. In the past dozen years, the remaining holdouts have banned the practice — Yemen and Zimbabwe in 1994, China in 1997 and Pakistan in 2000 — while the Democratic Republic of Congo has placed a moratorium on it. This is not, by and large, an axis of good, yet even it has managed to do the right thing.

The U.S. Supreme Court agreed earlier this year to reconsider its 1989 decision permitting capital punishment for 16- and 17-year-olds. This is an opportunity to continue dismantling the archaic structure of the death penalty. In 1988, the court abolished the penalty for 15-year-olds. Two years ago, it banned the practice of executing mentally retarded people, and thus allowed the United States to part company with Kyrgyzstan.

Since the first U.S. execution of a juvenile criminal in 1642 (50 years before the Salem witch trials), 336 youths have been put to death out of 20,000 total executions. Much has changed in law, science and the family since then, but the country still clings to the notion that putting killers to death will make it a safer place to live.

Yet even by the country’s own legal standards for imposing the death penalty, a strong argument can be made that it is time to abolish the penalty for 16- and 17-year-olds.

When the court threw out the death penalty for mentally retarded prisoners, it said the public consensus no longer supported it. The 6-3 majority cited the fact that in 1989 only two death-penalty states did not allow it, while in 2002 18 did not.

By the same token, five death-penalty states have barred executions of juveniles since 1989, and juries seem increasingly reluctant to impose the ultimate punishment on teens. Last year, just two juveniles received death sentences; 10 years ago, 17 did. A jury in the case of 17-year-old Washington-area sniper Lee Malvo refused last December to sentence him to death for a cold-blooded killing.

Retribution and deterrence are the two stated reasons for the U.S. death penalty, as set out by the Supreme Court. Something shocks the conscience in demanding death as retribution from teenagers, who are deemed so immature that they cannot marry without parental consent until the age of 18. (In Missouri, where the state Supreme Court recently struck down capital punishment for juveniles, youths cannot serve on juries until they are 21.) As for deterrence, it is mere speculation that the prospect of a death sentence works on the impulsive teenage mind in a way that a long prison term does not.

Since four of the Supreme Court’s nine judges have already called juvenile executions a “shameful practice,” just one more vote is needed to overturn the practice. It would be most likely to come from Justice Sandra Day O’Connor or Justice Anthony Kennedy; both voted two years ago to end executions of the mentally retarded.

If the juvenile death penalty falls, some observers say, the next fights could involve the death penalty for those 18 to 20 and for those who are borderline mentally retarded. Executing juveniles is a stain on the United States. The country may not give up quickly on the illusion that state-sanctioned killing is a just and effective answer to violence in the community. Piece by piece, however, it may be starting to let go.