Juvenile Death Penalty

Please note: The following document is not a product of the American Bar Association nor an expression of its policy; it is posted here in support of the ABA's policy that, "The American Bar Association opposes, in principle, the imposition of capital punishment upon any person for any offense committed while under the age of eighteen (18)." For questions about this document, please contact Walter Long or Benjamin Thorne, Friends Meeting of Austin.

The drafters of the joint public sanctuary declaration and this supporting document recognize that individuals and organizations will have their own reasons for endorsing sanctuary on behalf of Texas juveniles, and may disagree with the reasons advanced herein. Therefore, individuals and organizations are asked to endorse only the joint public sanctuary declaration and, otherwise, to familiarize themselves with the following rationale for taking such action. It is the drafters' profound wish that those who endorse the joint sanctuary declaration respect the lawful, non-violent intent of the declaration to offer protection to Texas' juvenile death row inmates.

1. Sanctuary

Sanctuary is an ancient religious tradition with roots deep in the Old Testament, ¹ the early church and Middle Ages, ² our own history, ³ and modern times. ⁴ "In its primary current usage, the term `sanctuary' refers to protective community with people whose basic human rights are being violated by government officials. As a declared practice, it incorporates prophetic witness into protective community; that is, in addition to protecting the violated from the state, the public practice of sanctuary holds the state accountable for its violations of human rights." ⁵

Our nation was founded on the principle that its constituent individuals and communities retain primary responsibility for protecting human rights, a "responsibility we may entrust but never forfeit to the state." ⁶ At our country's insistence, this principle was made explicit by the Nuremburg Tribunal at the close of World War II. ⁷ Such civil initiative was then placed at the heart of the Universal Declaration of Human Rights: "[E]very individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, secure their universal and effective recognition and observance." ⁸

This public declaration of sanctuary on behalf of Napoleon Beazley and all other juveniles on Texas' death row springs from religious tradition and the civil initiative required of all persons to prevent their governments from abusing fundamental human rights. It also is founded upon the basic principle that a person fleeing disproportionate punishment must be protected from the authorities until they are willing to relent and punish appropriately. The Old Testament text for this principle is Numbers 35:6-14, describing the cities of refuge to which persons guilty of manslaughter could flee in order to avoid execution. Refuge was deemed appropriate due to the lesser moral culpability of the offender in such cases. ⁹

All organized governments in the world besides the United States (and more pointedly, certain states within the United States) reject the execution of juveniles for the same reason. ¹⁰ Although juveniles may undertake actions that demonstrate criminal intent, they universally lack the maturity that would render them as culpable for their actions as adults.

Texas law makes provision for this insight in almost every area. Under Texas law, a person under 18 years old is a "legal infant" who may not execute contract or will, may not marry without permission, serve on a jury, vote in a public election, or be held solely liable for tortious act. See Texas Civil Practice and Remedies Code Sec. 129.001; Texas Probate Code Sec. 57; Texas Attorney General Opinion 1975, No. H-546; Texas Election Code Sec. 11.002; Texas Family Code Sec. 41.001; Smith v. Merritt, 940 S.W.2d 602 (Tex. 1997). However, even though Texas law does not deem a 17-year old fully responsible for tortious actions, since the 19^th Century it has seen fit to kill him for criminal ones. See Walker v. State, 13 S.W. 860 (Tex. App. 1890).

The President of the American Bar Association recently wrote Gerald Garrett, Chairman of the Texas Board of Pardons and Paroles, protesting the impending execution of Glen McGinnis and describing our own society's consensus against holding juveniles as culpable as adults:

As citizens, persons under the age of 18 cannot vote, serve on juries, make medical decisions for themselves, or enter into contracts. We do not permit children to conduct these activities because we believe that they lack the capacity to fully appreciate the consequences of their actions. It is deeply troubling that we, as a democratic society, truncate the political rights of this group because they need protection, yet pass laws in order to execute them. ¹¹

Essentially all contemporary governments but our own withhold "savage retribution" against persons who were children at the time of offense out of recognition that "at no point should a minor be declared unredeemable." ¹² "The practice of levying the death penalty against child offenders is globally condemned." ¹³

Up to now, Texas authorities have proven unwilling to consider a lesser punishment for juveniles. Under Governor Ann Richards, from January 1991 until January 1995, three juveniles were executed. During his six years in office, from January 1995 to January 2001, Governor George W. Bush presided over the executions of four juveniles. The federal courts, similarly, have refused to intervene. Obviously, it is impossible to physically protect Texas' juvenile death row inmates from the authorities. We hope that a wall of protection may be built through public support of a bill raising the execution eligibility age to 18 and public entreaties to the Governor and Board of Pardons and Paroles to spare juveniles from the death penalty in compliance with their duties under the law.

2. Federal Law Prohibits the Juvenile Death Penalty

The International Covenant on Civil and Political Rights, the United Nations Convention on the Rights of the Child, the American Convention on Human Rights, and a fully-emerged peremptory norm¹⁴ of international law prohibit the execution of persons for offenses they committed before they had reached their eighteenth birthday. Article 6, Section 2 of our Constitution (the "Supremacy Clause") makes ratified federal treaties the "law of the land," equivalent in power to a federal statute, preempting any inconsistent state law. ¹⁵ Article 6, Paragraph 5 of the International Covenant, ratified in 1992, prohibits the juvenile death penalty. The Covenant renders void Texas Penal Code Section 8.07(c), ¹⁶ which otherwise allows the death penalty for children who were seventeen at the time of offense.

a. Historical and Legal Background of Texas' Federal Obligation

In the early 1950s, anti-civil rights and "states' rights" forces in the United States combined to support a Constitutional amendment advocated by Ohio Senator Bricker that was designed to ward off the threat that the United States' adoption of the International Covenant, then in gestation, would bring an end to racial segregation in the United States. ¹⁷ Sen. Bricker declared his purpose was "to bury the so-called Covenant on Human Rights so deep that no one holding high public office [would] ever dare to attempt its resurrection." ¹⁸ President Eisenhower defeated the Bricker amendment in 1954 only by making the costly promise that the United States would not accede to international human rights treaties. ¹⁹ For the next 38 years, Sen. Bricker's threat seemed to have come true.

President George Bush "resurrected" the treaty, causing it to be adopted in 1992, declaring in a letter to Sen. Claiborne Pell, Chair of the Senate Foreign Relations Committee, that it was time for the United States to participate in the international treaty-based effort to protect fundamental human rights. ²⁰ The Bush Administration announced that, by taking no reservation to Article 50 of the Covenant, it expressly intended to oblige every branch and component part of this country's government to obey the Covenant, including and especially the States. ²¹ Article 2, Paragraph 3 of the Covenant requires the State of Texas to "ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity" and to "ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State," and to "ensure that the competent authorities shall enforce such remedies when granted." The Bush Administration announced that the United States would implement its obligations through "appropriate legislative, executive and judicial means, federal or state as appropriate." ²²

When ratifying the treaty, President Bush and the Senate attached a reservation to Article 6, observing that not all of the states -- including Texas -- were in compliance with Article 6. ²³ Senator Pell noted in hearings on Covenant ratification that the United States' reservations did not modify the United States' basic obligations under the treaty, because they were domestic policy statements. ²⁴ In its final report, the Foreign Relations Committee expressed an expectation that non-complying states like Texas might pass legislation bringing state law into compliance with the prohibition on juvenile execution. ²⁵ In 1994, the United Nations Human Rights Committee, the authoritative interpreter of the Covenant, ²⁶ declared the United States' reservation to Article 6 illegal and explained that such a reservation is void, leaving the United States, and Texas in particular, fully bound to prohibit juvenile executions. ²⁷ In accord, the United States' European partners to the International Covenant have formally protested the reservation to Article 6, and consider the United States (and Texas) to be violating the Covenant. ²⁸

b. Texas' Non-compliance With Federal Law

Until now, Texas has made no apparent effort to comply with the International Covenant. Gov. Bush presided over the execution of four juveniles: Robert Anthony Carter, Joseph Cannon, Glen McGinnis, ²⁹ and Gary Graham. Three of the four were African American. Currently, there are 29 juveniles on Texas' death row: eleven African Americans, twelve Hispanics, and six whites. ³⁰ Twenty of these youths were sent to death row during Bush's governorship: nine African Americans, five Hispanics, and six whites. ³¹ Overall, 79 percent of Texas' juvenile capital inmates are from a racial minority. Houston criminal defense attorney Jack Zimmermann's comment following Graham's execution is apropos: Texas has a "system that chews up and spits out young black men." ³²

In his acceptance speech at the Republican National Convention in Philadelphia, Gov. Bush spoke of having met young minority inmates in a Texas juvenile jail. ³³ He noted that, when he looked into their eyes, he "realized some of them were still little boys." Bush declared that, when one young man asked him what he thought of him, he understood him to be asking, "Do you, a white man in a suit, really care what happens to me?" Bush concluded that, when Americans do not respond to the kind of hopelessness that was expressed by this kid, and the problems resulting from that hopelessness, it builds a wall within our nation. Bush exhorted the crowd, "my fellow Americans, we must tear down that wall." Bush did nothing but build that wall by conducting as many peace-time executions of children during his five and a half years in office as the few other child-executing nations in the world combined. ³⁴ Although Bush claimed to "uphold the laws of Texas," these executions violated federal and international law.

Mr. Bush did not respond to two letters sent him by Napoleon Beazley's attorneys, dated June 26, 2000, and August 11, 2000. The letters informed Mr. Bush of Texas' responsibility to abide by the International Covenant (independent of any action by the federal courts), requested that Mr. Bush seek an official Attorney General's Opinion from Texas Attorney General John Cornyn on that subject, and invited Mr. Bush to visit Mr. Beazley in the presence of his attorneys to see if he could "care about him."

3. Why Sanctuary is Necessary

At the time we initially made out Sanctuary Declarations public, we deemed it necessary to call for a prospective boycott of the Texas tourism industry because (without some impetus) the Texas authorities otherwise would to exercise their legal duty to halt Mr. Beazley's and other juveniles' illegal executions. We are greatly encouraged by the fact that, unlike his predecessor, Governor Rick Perry has indicated a willingness to seriously consider criminal justice reform. We believe that a boycott is inappropriate under such circumstances. Our concerns about the system remain, and are detailed below.

The Texas Defender Service, an organization funded by the American Bar Association, released a comprehensive report in October 2000 on the Texas death penalty system, finding that "many of the judges responsible for enforcing the most basic constitutional protections for Texas defendants have either abandoned that duty or actively worked to expedite the pace of executions at the cost of thoughtful, searching review." ³⁵ Although it is not clear that it is justified by statute, the Texas Court of Criminal Appeals probably will bar review of the juvenile death penalty issues in any successive state habeas petition, ³⁶ and it will not allow any other state court to enter a stay of execution in response to the matter. ³⁷ The federal courts no longer will stay a state execution when the stay is sought in support of a successive federal petition, unless actual innocence of the crime is proven. United States Supreme Court jurisprudence over the last twenty years and federal and state legislation have generally curtailed habeas protection of Texas death row inmates, even in the face of the most egregious constitutional violations. ³⁸ As Gary Graham's case illustrated, even cases raising the most serious concerns about innocence pass without impediment through the courts. ³⁹ Our governments are moving back toward pre-Civil-Rights-Era confidence in the state governments' abilities to police themselves. The abandonment of concern for protection of the rights of capital inmates may augur a dangerous shift in the balance of power in Texas society, allowing local majorities once again to oppress minorities without check. ⁴⁰ This constitutes a spiritual, social, and legal crisis. ⁴¹

By administrative fiat and public pronouncements, Governor Bush reinforced a spiritual and legal climate hostile to entreaties by capital inmates for reduction of their sentence. To date, executive clemency exists in Texas capital cases only when the trial officials⁴² or other officials⁴³ seek it on behalf of a particular inmate. ⁴⁴ Otherwise, the Governor and Board carry out a policy of mandatory death for condemned perpetrators, making no allowances for traditional clemency grounds such as equity (one codefendant who is less culpable receives death, the other life), youth, rehabilitation, mental disabilities, mercy, etc. ⁴⁵ Rejecting Karla Faye Tucker's clemency petition, which urged convincing rehabilitation as a basis for commutation, Mr. Bush stated, "In every death penalty that comes to my desk, I ask this question: Innocent or guilty? And I will tell you of all the death penalties we have had in our state, I am confident that those that have been put to death have been guilty. . . . [In reference to Ms. Tucker's rehabilitation] I have concluded judgments about the heart and soul of an individual on death row are best left to a higher authority." ⁴⁶ Tucker's execution made it very clear that Governor Bush's policy prevented his Executive Branch from intervening on any ground other than innocence and that his policy was based upon a religious belief in a mandatory death sentence for murderers. ⁴⁷

Several members of the Texas Board of Pardons and Paroles have expressed the same belief in a mandatory penalty. ⁴⁸ All protests to the contrary, Mr. Bush controlled the decisions made by the Board of Pardons and Paroles. Mr. Bush personally appointed all current members of the Board to their high-paying jobs, and the Governor has statutory authority to remove them at will. ⁴⁹ Unsurprisingly, therefore, the Board members' personal philosophies reflect Mr. Bush's religious bias. B. Rogers-Johnson has maintained, "When someone is executed, I pray for the soul. To die in Christ is gain. I think I'm doing something good. I know I am." ⁵⁰ Alvin Shaw has opined, "A preacher told me: `Render unto Caesar what is Caesar's.' You've violated man's law and you pay the consequences." ⁵¹ James Paul Kiel, Jr., has stated, "There are certain people who have earned the right to be executed." ⁵² These comments, when viewed in light of the voting record, create almost complete doubt that Board members would be able to consider youth or any other moral or legal grounds besides innocence when deciding upon commutation of Mr. Beazley's or another juvenile's death sentence.

The policy, practice, and religious beliefs outlined above reflect the legislative intent undergirding Texas' capital punishment and death penalty statutes. ⁵³ The author of Texas House Bill 200, which reinstated the death penalty in 1973, presented a purely religious argument for the bill's passage, relying on Old Testament texts, and asserting that, in accord with his perception of God's will, he had created as close to a mandatory sentencing statute ("life for a life") as the U.S. Supreme Court would allow. ⁵⁴

In addition to doubts about clemency fairness raised by the Board members' openly expressed religious bias, serious concern is raised by the structure and record of the Texas capital clemency process. The most thorough judicial review of the process is found in Federal District Judge Sam Sparks' 1998 opinion in the case of Joseph Stanley Faulder and Danny Lee Barber. ⁵⁵ Judge Sparks made extremely disturbing fact findings about the Texas Board of Pardons and Paroles' review of capital inmates' cases. ⁵⁶ At least one member allegedly has admitted (without apology) to voting without reviewing petitions, ⁵⁷ and the members are not required to meet or even to discuss the petitions. There is no system of accountability in place which would guarantee that the Board members or Governor use any care in their review.

Judge Sparks denied relief to Faulder and Barber, because of the United States' Supreme Court's view that, by the time a capital inmate reaches the point of executive clemency, he or she is not entitled to much due process. This is highly ironic, because the Supreme Court has also called executive clemency the "fail safe" in capital cases. ⁵⁸ Judge Sparks, nevertheless, observed that it "is abundantly clear the Texas clemency procedure is extremely poor and certainly minimal. Legislatively, there is a dearth of meaningful procedure. Administratively, the goal is more to protect the secrecy and autonomy of the system rather than carrying out an efficient, legally sound system. The Board would not have to sacrifice its conservative ideology to carry out its duties in a more fair and accurate fashion."

Certainly, a goal of this public declaration of sanctuary is to raise concern among the "trial officials," legislators, and additional Texas authorities (who might influence the Governor and Board) about the legality of Texas' juvenile executions. It is apparent that clemency petitions on the issue, otherwise, may not receive any serious consideration.

4. Facts About Napoleon Beazley's Case

Napoleon Beazley, an African American juvenile from Grapeland, Texas, was tried by an all-white Tyler, Texas, jury for the capital murder of John Luttig, a wealthy white Tyler community leader. The crime occurred on April 19, 1994. John Luttig and his wife, Bobbie, drove up to their Tyler home late that night after returning from Dallas, where Bobbie was studying for a Master of Divinity degree at Southern Methodist University. As the Luttigs emerged from their Mercedes at their garage, they became the victims of a badly botched carjacking. Through the testimony of Napoleon's codefendants, brothers Cedric and Donald Coleman, the State alleged that Napoleon and Donald approached the Luttigs in their driveway demanding the keys to the Mercedes. According to Donald, a quick struggle ensued between Napoleon and John Luttig, with the result that John Luttig was killed with two pistol shots to the head. Donald alleged that Napoleon also shot at Bobbie Luttig after she had slipped to the ground on Donald's side of the car in an attempt to avoid harm. Donald alleged that Napoleon told him to shoot her with the shotgun he was carrying, but that he responded that she was dead. Bobbie Luttig rolled free of the car as Napoleon and Donald recklessly drove it out of the driveway, damaging it against a retaining wall. Bobbie's husband lay dead, and she fled to a neighbor's house to call for help. Cedric Coleman followed Napoleon and Donald in Napoleon's mother's car, which had carried the youths to the crime scene. A short distance down the road, the youths abandoned the injured Mercedes, got in the car with Cedric, and returned seventy miles to Grapeland. Following a massive F.B.I. manhunt, the three were arrested a few months later.

John Luttig's son, Michael, is a federal appellate judge on the Fourth Circuit Court of Appeals in Virginia. Judge Luttig, his wife Elizabeth Luttig, and his sister Suzanne Luttig Easterling testified at Napoleon's trial in Tyler about the sterling character of John Luttig, and Michael Luttig's testimony at the punishment phase eloquently summarized his father's fundamental decency and his own pain.

Judge Cynthia Kent, the state judge who presided over Napoleon's trial, appears to have challenged, off the record, the prosecutors' insistence upon trying Napoleon's case for the death penalty. The record reflects that the prosecutors, in turn, asserted that they felt pressure from the victim's survivors to obtain it. The issue was acute because, in order to get the death penalty, the State has to prove that the defendant will always pose a risk of danger to others. One of the chief ways in which the State usually meets this burden is by producing the prior criminal record of the defendant. Napoleon had no record of any prior contact with police. In fact, the prosecutors were unable to turn up any complaint or instance of physical aggression instigated by Napoleon against anyone. A senior in Grapeland High School, he was runner up in the contest for "Mr. Grapeland," the boy annually voted most popular in the school. Before the crime, by all appearances, Napoleon was in command of his future. He had a good academic record and was a school athlete, playing football and attending state power lifting competitions. His codefendants, Cedric and Donald, similarly had clean records. The small community of Grapeland was shocked with disbelief that these kids could have been involved in such an offense, and numerous witnesses testified at the punishment phase of Napoleon's trial about their prior perceptions of his goodness and their belief that he was redeemable, even in light of the crime. Among these witnesses was Cindy Garner, who remains the elected District Attorney of Houston County, where Grapeland is located.

The prosecutors pursued the death sentence by securing damaging testimony from the Coleman brothers characterizing Napoleon's behavior at the time of the offense and alleging that he threatened them afterwards. They also alleged that Napoleon engaged in small-scale drug dealing (crack cocaine) in Grapeland and Crockett, Texas, and carried his pistol to school. The Coleman brothers have recanted their testimony that they made no deals with the prosecution in return for testifying against Napoleon. ⁵⁹Additionally, the Colemans have alleged that they were encouraged to suppress evidence of Napoleon's remorse: that he cried all the way home from Tyler to Grapeland and had to be restrained by Cedric Coleman from committing suicide. Napoleon's current counsel have not been able to obtain a hearing on the Coleman's suppressed deal, but it is presumed that the Colemans embellished their "bad act" punishment-phase testimony about Napoleon out of fear that they would be subjected to trial for the death sentence.

The prosecutors also used race to obtain the death penalty from the all-white jury⁶⁰ by repeatedly lauding the victim -- exhorting the jury to understand that the trial was about John Luttig⁶¹ -- and describing Napoleon, in contrast, as a beast of prey stalking around John Luttig's property looking for a victim to devour. ⁶² The prosecution seasoned this Southern racist image of the young black man as animal⁶³ with stories about inner-city influence on the defendant, raising fears in the white audience of penetration of their bucolic world by gangs, drugs, and ghetto culture. ⁶⁴ Following the trial, one of the jurors commented, "The nigger got what he deserved."

Napoleon's non-record claims have not been allowed development in a hearing, in part because of the inadequacy of the Texas Court of Criminal Appeals' indigent appointment system for inmates seeking state habeas relief. ⁶⁵ None of the claims was raised in state court, because appointed counsel and his co-counsel were ordered to file ten (10) state habeas petitions in six months. ⁶⁶ Napoleon's attorney and his partner were starting a law practice with these cases. Both had been briefing attorneys at the Court of Criminal Appeals, but they had little experience practicing law with clients. The partner had never appeared in court on behalf of a client. Napoleon's appointed counsel opined that spending a month on each case would be "doable," which alarmed experienced criminal defense attorneys who found the Court's appointment of so many cases at once to two attorneys incomprehensible. ⁶⁷ The Court of Criminal Appeals denied Napoleon's attorney's motion for more time and accepted a four-claim petition, which repeated two claims from direct appeal and raised two other claims based on the trial record. A weekend of investigation was done, and Napoleon was launched toward federal court with an execution date and very little he could carry with him.

It was at that point that his present counsel -- retained with minimal funds raised by Grapeland, Texas, churches -- alleged that Napoleon's death sentence violated federal law because he had been seventeen at the time of the offense. ⁶⁸

5. Conclusion

The current system of justice which we have in Texas, based upon abstract retribution, discourages even minimal healing of the breach caused by a violent offense. The system vigorously pursues the death of the defendant, producing dramatic collateral damage: often overwhelming aggrieved survivors of the victim, ostracizing the family of the defendant, ⁶⁹ and placing enormous stresses upon the emotional and physical well-being of those entrusted to carry out the State's violent policies. ⁷⁰ We hope that, in contrast, the joint declaration of sanctuary will provide a window on our violence allowing our authorities to take measures to bring about constructive change. We appreciate the impossibility of any capital defendant restoring that which he has taken from the victim and the victim's survivors. We also hope, however, that our society will realize that, like defendants in many cases, our system arbitrarily chooses who will live or die. Our State's execution of juveniles is especially arbitrary. It defies a worldwide consensus against the practice. It breaches federal law. And, finally, it runs counter to our own best sensibilities about the immaturity of children, their reduced culpability for the most intentional of offenses, and their prospects for rehabilitation.

Those who endorse the joint public declaration of sanctuary for Napoleon Beazley and all Texas juvenile death row inmates should call upon the State of Texas to spare the life of Napoleon Beazley by commuting his sentence to life in prison. In particular, those religious denominations and organizations that have a long record of objecting to the juvenile death penalty are encouraged to participate. ⁷¹ The European Parliament also is asked to give effect to its constituent nations' formal objections to the United States' reservation to Article 6 of the Covenant by exerting political pressure on our government at the federal and state level.⁷²

It is our profound hope that the Texas Legislature will pass legislation this session, amending Texas Penal Code Section 8.07(c) raising the age of eligibility for the death sentence to 18-years of age, so that our state's practice will conform to its legal and moral duty.

Endnotes

¹See IGNATIUS BAU, THIS GROUND IS HOLY: CHURCH SANCTUARY AND CENTRAL AMERICAN REFUGEES 125 (Paulist Press 1985) (discussing Old Testament "cities of refuge"). [return to text]

². The first explicit reference to sanctuary exercised by the Christian churches is in the Theodosian Code of 392 A.D. BAU, supra, at 131. Eligibility for sanctuary depended on the nature of the crime and the character of the accused. Id. The Council of Mayence in 813 issued this decree: "Let no one dare to remove a wrongdoer who is a fugitive to a church, nor give him up from there to punishment or death, that the honor of the churches may be preserved; but let the rectors be diligent in securing his life and limb. Nevertheless he must lawfully compound for what he had wrongfully done." Id. at 132.

Alfred the Great issued the first statutory grant of sanctuary in English law in 887 A.D., granting sanctuary in a monastery for a space of three days to anyone fleeing "for any manner of offense." Id. at 137. The provision facilitated settlement between feuding parties and "limit[ed] the violence of bloodfeud rather than . . . release[d] all guilt or responsibility." Id. Alfred's legislation also mitigated the harsh punishment for theft. When an accused thief made it to sanctuary, the law guaranteed a commutation of the death sentence by allowing him to ransom his life by paying a fine or to bind himself into slavery. Id. at 139.

English law maintained an ever more complex sanctuary privilege until Henry VIII created an absolute monarchy, reducing the power of the clergy and destroying jurisdictions competing with the power of the king. Id. at 155-56. [return to text]

³Churches prominently participated in the Underground Railroad which ferried slaves to freedom during the years preceding the Civil War. No legal privilege, as in previous English law, was asserted, but supporters of the Railroad based their actions on such passages as Deuteronomy 23:16-17: "If a slave has taken refuge with you, do not hand him over to his master. Let him live among you wherever he likes and in whatever town he chooses." BAU, supra, at 160. [return to text]

⁴In recent times, sanctuary has been asserted by churches in the United States on behalf of conscientious objectors to military service in the 1960s and 1970s, and Central Americans fleeing violence in their homelands and suffering under abusive U.S. Immigration and Naturalization Service policies and practices in the 1980s.

American churches participating in the Central American sanctuary movement opened their doors to refugees under threat of death in their homelands and of capture and deportation by the I.N.S. without process. Jim Corbett, one of the founders of the Central American sanctuary movement maintained that the "civil initiative" of the churches incorporated "recognized rights into community norms and legal practice," calling this "peacemaking in its quintessential form." JIM CORBETT, THE SANCTUARY CHURCH, Pendle Hill Pamphlet 270 (1986), at 18. Corbett argued: "When rights are codified and violation masquerades as authority, the issues raised by civil initiative come into clearest focus. Sanctuary for Central American refugees defends good laws that the U.S. government officials are violating. Our protection of refugees is not on the frontier of codified law. Rather, the legislation we need has already been passed. As Ninth Circuit Court Judge Kenyon ruled after weighing evidence in Orantes v. Immigration and Naturalization Service concerning the government's treatment of Salvadorans, the INS `engages in widespread illegality, so widespread that it is not a matter of individual misconduct but a broad systematic process.' In the face of massive disobedience by federal administrators, the sanctuary church is complying with our country's refugee laws." Id. at 19.

Ultimately, the I.N.S. settled a massive class-action suit brought by the American Baptist Churches and many other denominations, agreeing to allow every Salvadoran and Guatemalan denied political asylum in the 1980s another opportunity to apply with de novo review. American Baptist Churches v. Thornburgh, 760 F. Supp. 796 (N.D. California 1991).

This public declaration of sanctuary on behalf of Mr. Beazley and Texas' death row juveniles seeks no less than recognition of their legal rights and redress in the form of resentencing to a punishment less severe than death. [return to text]

⁵JIM CORBETT, THE SANCTUARY CHURCH, Pendle Hill Pamphlet 270 (1986), at 5-6. [return to text]

⁶Id. at 17. [return to text]

⁷Id. at 16-17. [return to text]

⁸UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) (Preamble). [return to text]

⁹See BAU, supra, at 124. [return to text]

¹⁰See Amnesty International, Crying Out for Clemency: The Case of Alexander Williams, Mentally Ill Child Offender Facing Execution, AMR 51/139/2000, September 1, 2000 (http://www.amnesty.org) (referring to the United States as a "rogue state when it comes to the death penalty"). [return to text]

¹¹Letter from William G. Paul to Mr. Gerald Garrett, Chairman, Texas Board of Pardons and Paroles, dated December 10, 1999 (writing "[a]s President of the American Bar Association . . . to express the Association's strong opposition to the execution of Glen Charles McGinnis, scheduled in Texas for January 25, 2000").

In 1997, the American Bar Association called for "each jurisdiction that imposes capital punishment" to impose a moratorium on its the practice of the death penalty until it had implemented certain policies, including a bar on execution of "persons who were under the age of 18 at the time of their offenses." AMERICAN BAR ASSOCIATION, SECTION OF INDIVIDUAL RIGHTS AND RESPONSIBILITIES, SECTION OF LITIGATION, RECOMMENDATION AND REPORT (February 1997) (concluding "Whatever you think about the death penalty, a system that will take life must first give justice."). [return to text]

¹²Putting Teens to Death Represents Barbarism, DAYTONA BEACH NEWS-JOURNAL, July 15, 2000 (Editorial). [return to text]

¹³Id. [return to text]

¹⁴See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (recognizing torture as violating a peremptory norm). The death penalty for children is far rarer than torture in occurrence, and arguably more severe. [return to text]

¹⁵Hauenstein v. Lynham, 100 U.S. 483, 488-89 (1879); Ware v. Hylton, 3 U.S. 199, 236-37 (1796) (Chase, J., opinion); id. at 273 (Iredell, J., opinion); see Galveston, Harrisburg & San Antonio Railway Co. v. State, 34 S.W. 746 (Tex. 1896) (Texas Attorney General concession that treaty voids inconsistent state statute). [return to text]

¹⁶Section 8.07(c) currently reads: "No person may, in any case, be punished by death for an offense committed while he was younger than 17 years." At the time of Napoleon's trial, the statute was Section 8.07(d). [return to text]

¹⁷Louis Henkin, Comment: U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 AMER. J. INT. L. 341, 348-49 (1995). [return to text]

¹⁸Id. [return to text]

¹⁹Id. at 348 (citing Statement by Secretary of State Dulles, in Treaties and Executive Agreements: Hearings before a Subcomm. of the Senate Comm. on the Judiciary 825 (1953)). [return to text]

²⁰UNITED STATES SENATE COMMITTEE ON FOREIGN RELATIONS REPORT ON THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 31 I.L.M. 645, 660 (Jan. 30, 1992) (Appendix A) ("The United States' ratification of the Covenant on Civil and Political Rights at this moment in history would underscore our natural commitment to fostering democratic values through international law. The Covenant codifies the essential freedoms people must enjoy in a democratic society."). [return to text]

²¹Id. at 657 ("A reservation is not necessary with respect to Article 50 since the intent is not to modify or limit U.S. undertakings under the Covenant. . . . [We intend] to signal to our treaty partners that the U.S. will implement its obligations under the Covenant by appropriate legislative, executive and judicial means, federal or state as appropriate, and that the Federal Government will remove any federal inhibition to the State's abilities to meet their obligations."). Article 50 of the Covenant provides that "[t]he provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions." [return to text]

²²Id. [return to text]

²³31 I.L.M. at 650 ("The [Senate Foreign Relations] Committee recognizes the importance of adhering to internationally recognized standards of human rights. Although the U.S. record of adherence has been good, there are some areas in which U.S. law differs from the international standard. For example, the Covenant prohibits the imposition of the death penalty for crimes committed by persons between the ages of 16 and 18. In areas such as these, it may be appropriate and necessary to question whether changes in U.S. law should be made to bring the United States into full compliance at the international level. However, the Committee anticipates that changes in U.S. law in these areas will occur through the normal legislative process."). The United States Congress promptly enacted laws excluding juveniles from the federal death penalty.

The Carter Administration, which first drew up the reservation to Article 6, explained that the reservations were not meant to be permanent derogations from the treaty provisions:

"We are not suggesting that the only possible policy for the United States and its future legislation is what is represented in our reservations. We thought, however, that rather than get into the collateral issues of whether specific aspects of domestic law should be changed, the best policy would be to recommend these reservations."

INTERNATIONAL HUMAN RIGHTS TREATIES: HEARINGS BEFORE THE COMM. ON FOREIGN RELATIONS, 96th Cong., 1st Sess. (1979) at 36 (Department of Justice Advisor Jack Goldklang). Carter State Department spokesperson Roberts Owen testified before the Senate:

"The Lawyers Committee finds objectionable the suggested reservation to Article 6 of the Civil and Political Rights Covenant in which the United States would reserve the right to inflict capital punishment under U.S. law. The purpose of that reservation, like the other reservations, is to avoid the assumption of an international obligation to meet certain standards which U.S. domestic law does not currently meet. Its purpose was certainly not the preservation of any right to execute children or pregnant women, something never done in the United States."

Id. at 55.

The final version of the reservation to Article 6 reads: "The United States reserves the right, subject to its Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishment for crimes committed by persons below eighteen years of age." [return to text]

²⁴Senator Pell observed that the reservations would "not be integral parts of the treaty": "[A] purely domestic statement, which is what these reservations are, attached to the treaty, is not part of the treaty contract and therefore has no international effect." INTERNATIONAL HUMAN RIGHTS TREATIES, supra, at 79 (Questioning of John Norton Moore, American Bar Association, by Senator Pell) (emphasis added). Sen. Pell observed that, since the reservations would not be an integral part of the treaty, they probably would not bind the judiciary. Id. [return to text]

²⁵31 I.L.M. at 650. [return to text]

²⁶United States v. Bakeas, 987 F. Supp. 44, 46 n.4 (D. Mass. 1997)); see also United States v. Duarte-Acero, 208 F.3d 1282, 1287 (11th Cir. 2000). [return to text]

²⁷The reservation is contrary to the object and purpose of the treaty and, as such, is deemed severed, leaving the United States and Texas fully bound to comply with Article 6, Paragraph 5. Report of the Human Rights Committee, Official Records of the General Assembly, Fiftieth Session, Supplement No. 40, U.N. DOC. A/50/40 (October 3, 1995), para. 279 [Records]; VIENNA CONVENTION ON THE LAW OF TREATIES, art. 19 (c) ("A State may . . . formulate a reservation unless . . . (c) . . . the reservation is incompatible with the object and purpose of the treaty."); GENERAL COMMENT 24, GENERAL COMMENT ON ISSUES RELATING TO RESERVATIONS MADE UPON RATIFICATION OR ACCESSION TO THE COVENANT OR THE OPTIONAL PROTOCOLS THERETO, OR IN RELATION TO DECLARATIONS UNDER ARTICLE 41 OF THE COVENANT, Fifty-second Session, Nov. 11, 1994, at para. 18. [return to text]

²⁸Multilateral Treaties Deposited With the Secretary General, Status as at 31 December 1994, U.N. Doc. ST/LEG/SER.E/13 (1995) (Belgium, Denmark, Finland, France, Germany, Italy, Netherlands, Norway, Portugal, Spain, and Sweden). Almost all of the countries relied upon Article 4, Paragraph 2, the non-derogation clause, as establishing "minimum measures to protect the right to life." The non-derogation clause prohibits "derogation from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18." INTERNATIONAL COVENANT art. 4, para. 2. In regard to the reservation applied to Article 6, Finland elaborated on non-derogation by observing that "the right to life is of fundamental importance in the Covenant and the said reservation therefore is incompatible with the object and purpose of the Covenant." Italy described the reservation as "null and void," because of its incompatibility with the object and purpose of the Covenant. Spain additionally described Articles 6 and 7 as "two of the most fundamental rights embodied in the Covenant." Sweden broadly criticized the United States' reservations, understandings, and declarations, chiding the United States for the apparent lack of commitment reflected in those qualifications and charging the United States with contributing to undermining the basis of international treaty law.

The understanding of the European nations that the United States is bound by Article 6, Paragraph 5, due to the invalidity of the reservation, is grounded in international court decisions, many of which interpret the European Convention on Human Rights. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 1, 21 (May 28); The Interhandel Case (Switzerland v. United States), 1959 I.C.J. 6 (Mar. 21) (Lauterpacht, J., dissenting); Loizidou v. Turkey, 131 Eur. Ct. H.R. (ser. A) (1995); Belilos v. Switzerland, 132 Eur. Ct. H.R. (ser. A) (1988); France v. Turkey, App. No. 9940/82, 1983 Y.B. Eur. Conv. on H.R. 1; The Effect of Reservations on the Entry into Force of the American Convention (Arts. 74 and 75), Advisory Opinion OC-282, 2 Inter-Am. Ct. H.R. (ser. A) (1982); Ireland v. United Kingdom, (1979-80) 2 E.H.R.R. 25; Austria v. Italy, App. No. 788/60, 1961 Y.B. Eur. Conv. on H.R. 116. [return to text]

²⁹McGinnis explicitly challenged his death sentence under the International Covenant in a successor state petition for writ of habeas corpus, presented to the Texas Court of Criminal Appeals, and in his clemency petition, which was presented to Governor Bush and the Board of Pardons and Paroles. The Texas Court of Criminal Appeals denied McGinnis review, even though his Covenant and international law claims arguably could have been considered, because they alleged error that allowed McGinnis' jurors to give him the death sentence. See Article 11.071, 5(a)(3), Texas Code of Criminal Procedure. The Governor and Board similarly disregarded McGinnis' claim that his death sentence was illegal. [return to text]

³⁰Records at the Texas Department of Criminal Justice web site in October 2000 indicate that the "juveniles" on Texas' death row include the following inmates: