Criminal Justice Magazine
Winter 2003
Volume 17 Issue 4
Juvenile Death Penalty:
Is it "cruel and unusual" in light of contemporary standards?
By Adam Caine Ortiz
Adam Caine Ortiz is the Juvenile Death Penalty Policy Fellow with
the Section's Juvenile Justice Center in Washington, D.C. He is also
a winner of a 2003 Soros Justice Fellowship.
On May 28, 2002, five months before 17-year-old sniper suspect John
Lee Malvo was known to the world, the nation approached a crossroads
at which we still stand today. That was the day that Christopher Simmons
and Napoleon Beazley were slated to die by lethal injection. Both had
committed aggravated murders at age 17. Both were tried as adults. Both
were sentenced to death-Simmons in Missouri, Beazley in Texas. Both
had been on death row for approximately the same amount of time and
expressed great remorse for their crimes. Both had been model prisoners,
actively taking care of fellow inmates, engaging in community service,
and expressing strong religious beliefs. Photogenic and articulate,
they both attracted international attention.
But on May 28 their paths diverged: in Missouri, the state supreme
court granted Simmons a temporary stay of execution to decide whether
his death sentence was cruel and unusual; in Texas, Beazley was executed.
"We saw arbitrariness across the spectrum," said Beazley's
attorney, Walter Long. Filings to the Texas Court of Criminal Appeals
and the governor were denied "with full knowledge of the Missouri
decision," he said. Since Beazley's execution, Texas has executed
two more juvenile offenders while the country awaits a decision by the
Missouri court on the Simmons case.
Beazley's case illustrates an essential truth of sentencing an adolescent
to society's most extreme punishment-that adolescents, even those who
commit violent crime, are uniquely capable of growth, maturation, and
change. It was primarily for this reason that the American Bar Association
established its policy against capital punishment for offenders under
age 18 in 1983. The resolution establishing the policy drew from the
lessons and history of the juvenile court system, established more than
100 years ago, which make clear that youthful offenders should not be
subject to the severity of adult punishment. Of all offenders, adolescents
are most amenable to treatment and rehabilitation.
ABA presidents have reinforced this commitment, as stated most recently
by current ABA President A.P. Carlton in an op-ed in the Austin-American
Statesman: "We dare not hold children accountable for their actions
to the same degree as we do adults. To do so serves no principled purpose,
and only demeans our system of justice." (August 27, 2002).
Atkins v. Virginia
Juvenile justice advocates see a ray of hope in the recent U.S. Supreme
Court decision in Atkins v. Virginia, 536 U.S. ___ (2002) (per
curium). The landmark opinion bans the execution of offenders with mental
retardation and provides greater definition to the phrase "cruel
and unusual punishments," a phrase that Supreme Court Chief Justice
Earl Warren stated in Trop v. Dulles, 356 U.S. 86 (1958), is
determined by the "evolving standards of decency that mark the
progress of a maturing society."
In Atkins, the Court based its decision on two criteria: (1) the existence
of objective evidence of a national consensus of an evolving standard
and (2) the Court's own judgment as to whether the punishment measurably
contributes to its goal of retribution and deterrence. In evaluating
the first criterion, the Court provided new definition of what "objective
evidence" of a national consensus can be: the passage of state
legislation, the behavior of juries, the "direction of change,"
international opinion, and the judgment of organizations with expertise
in the field. In evaluating the second criterion, it referred to scientific
evidence regarding the diminished capacity and culpability of the mentally
retarded.
Many advocates for juveniles believe that these clarifications open
the door to a fresh challenge to the constitutionality of the execution
of juveniles. The last time the Court considered the issue was in 1989,
the same year that the execution of persons with mental retardation
was examined. In Stanford v. Kentucky, 492 U.S. 361 (1989), a plurality
of the Court upheld the constitutionality of executing 16- and 17-year-old
offenders. But in recent habeas petitions that were denied certiorari,
Justice Stevens stated in his dissents that "it would be appropriate
for the court to revisit the issue at the earliest opportunity,"
(Patterson v. Texas, 536 U.S. ___ (2002), and that the reasons
supporting the prohibition of executing the mentally retarded "apply
with equal or greater force to the execution of juvenile offenders,"
(In re Kevin Nigel Stanford, 537 U.S. ___ (2002)), which three
Justices joined.
Many believe that these comments from the Court, the new findings in
the field of adolescent brain research, and the momentum over the last
14 years signal the strong possibility of a reversal of Stanford in
the near future.
A truly unusual punishment
Since reinstatement of the death penalty in 1976, 28 states expressly
prohibit the execution of those who committed crimes while aged 17 or
younger. (In comparison, the Atkins decision found that 30 states with
prohibitions were sufficient.) Of the 22 states that do permit it, only
seven have carried out such executions. And of those, only two states-Texas
and Virginia-have used it more than once. (Texas has executed 13 such
individuals, and Virginia has executed 3.) Together, these two states
account for 76 percent of juvenile executions nationwide.
In recent years, five states have banned the punishment. The Supreme
Court of Washington State outlawed the practice in 1993, State v. Furman,
858 P.2d 1092 (Wash. 1993). When Kansas and New York reintroduced the
death penalty in 1994 and 1995, respectively, offenders under 18 years
of age were specifically exempted. In 1999 Montana banned the practice,
and Indiana followed suit in 2001. In the states of Arkansas, Florida,
and Texas such legislation passed in one branch of the state legislature
before stalling in the other. In 2001, New Hampshire's legislature passed
a bill abolishing the death penalty altogether.
Similar legislation to exclude juveniles from the death penalty is
currently under consideration in more than 10 states, a demonstration
that momentum opposing the practice continues to gain speed. Evidence
of a consensus is supported further by public opinion. A May 2002 Gallup
poll found that although 72 percent of Americans support the death penalty
in general, only 26 percent supported it for juveniles (69 percent opposed.)
The poll also found that support for the death penalty in general has
fluctuated between 45 percent and 72 percent in the past 40 years, while
support for the juvenile death penalty has always remained low.
An international consensus
In the last decade, the United States has executed more juvenile offenders
than all other nations combined. According to Amnesty International,
only one other government, Iran, currently sanctions juvenile executions.
Last year, the United States was the only country in the world to carry
out these executions (all in Texas). The practice has resulted in harsh
criticism by the European Union, the United Nations, and a number of
U.S. allies.
This criticism is drawn from a body of international law to which the
United States takes exception. The United Sates is the only major government
that has failed to sign the UN Convention on the Rights of the Child,
and it takes specific exception to portions of the International Covenant
on Civil and Political Rights that deals with the execution of those
who were minors when they committed their crimes. In October 2002, the
Inter-American Commission on Human Rights, an arm of the Organization
of American States, ruled that when the United States imposed the death
penalty on Mexican national and juvenile offender Michael Domingues,
the country violated the norm of jus cogens; that is, the world community
considers the practice gravely inconsistent with prevailing standards
of decency, as evidenced by a preponderance of law and practice among
developed nations, particularly those of the Americas.
Considering "cruel": Deterrence and retribution
Advocates have long argued that the two purposes ostensibly served
by the death penalty-deterrence and retribution-are not served by executing
juvenile offenders. The deterrent effect of a punishment rests on the
assumption that offenders deliberately premeditate their crimes. It
presumes that killers rationally consider the potential for an increase
in the severity of their punishment. This type of reasoning is opposite
that of an adolescent. Adolescents, by nature, are immature, impulsive,
and inexperienced and are going through physical, emotional, and psychological
change.
Retribution is based on an interest by society in seeing that offenders
get "what they deserve." However, the severity of punishment
should depend upon the culpability of the offender. Our law has consistently
held that the death penalty should only be imposed on those who are
most guilty, and that the "average murderer" is not deserving
of this most extreme of punishments. It would seem evident that the
immaturity of juvenile offenders places them in a category less culpable
than mature adults and, therefore, not deserving of death.
This is not to say that youths who are found guilty of murder should
not face punishment, even adult punishment. The ABA recommends that
for serious crimes, such as murder, it may be appropriate, under limited
circumstances and only under a judicial determination, to try juveniles
as adults. However, the ABA maintains that the death penalty for such
offenders goes too far.
Science sheds new light
As is true in many other areas of the criminal justice system, science
is now a factor in juvenile adjudication. Researchers at Harvard University
Medical Center, the University of California-Los Angeles, and the National
Institute of Mental Health have teamed up on a massive project to "map"
the development of the human brain from childhood to adulthood utilizing
magnetic resonance imaging (MRI).
These scientists have learned that the frontal lobe of the brain-the
part that controls impulse and judgment-undergoes massive changes between
the ages of 12 and 22. The brain begins by overproducing gray matter,
the "thinking tissue" in the frontal lobe of the brain, followed
by a period of "pruning" in which the brain trims and discards
sections of the frontal lobe in an effort to become more efficient.
The pruning is accompanied by an increase in white matter (a process
called myelination), which is a fatty tissue that insulates brain connections.
(See Elizabeth Sowell, et al., Mapping Continued Brain Growth and Gray
Matter Density Reduction in Dorsal Frontal Cortex; Inverse Relationships
During Postadolescent Brain Maturation, 21 (22) J. Neuroscience 8819-29
(Nov. 2001); also "Adolescent Brain Development and Legal Culpability"
on the ABA Juvenile Justice Center website at www.abanet.org/ crimjust/juvjus/juvdp.html.)
Not until this process is complete can a human brain be considered physiologically
"mature."
According to Dr. Ruben Gur of the University of Pennsylvania, this
process continues into late adolescence and "the behavioral significance
of this neuroanatomical finding is that the very brain system necessary
for inhibition and goal-directed behavior comes 'on board' last and
is not fully operational until early adulthood" at approximately
18 to 22 years of age. (See www.abanet.org/crimjust/juvjus/patterson.html,
Petition for Writ of Certiorari, Supreme Court of the United States,
Aug. 26, 2002, pages 22-23.)
In a television report, Dr. Jay Giedd, National Institute of Mental
Health, stated that "it's sort of unfair to expect [adolescents]
to have adult levels of organizational skills or decision making before
the brain is finished being built." (Frontline: Inside the Teen
Brain, PBS television broadcast, Jan. 31, 2002; also see www.pbs.org/wgbh/pages/frontline/shows/teenbrain/.)
These and similar findings suggest that the issues of juvenile culpability
are not only a matter of legal theory or morality, but also a matter
of biology.
At the crossroads
In August 2002, the State of Texas executed T.J. Jones and Toronto
Patterson, who became the twentieth and twenty-first juvenile offenders
executed since the reinstatement of the death penalty in 1976. The Missouri
Supreme Court is expected to rule on Christopher Simmons's case before
spring 2003. Of the more than 80 other juvenile offenders on death row,
roughly five cases are in late postconviction stages. It's anyone's
guess as to how long it will be before the Supreme Court accepts one
of these cases for consideration, but the foundations for a positive
ruling exist given the actions of states and the new scientific findings
that juveniles exhibit diminished capacity.
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