Now, since Atkins v. Virginia was decided by the United States Supreme Court on June 20, 2002, our bill also seems required by the Eighth Amendment of the United States Constitution. The Atkins opinion undermines the majority [lead plurality plus Justice O'Connor] in Stanford v. Kentucky by holding world opinion relevant to the question of how we measure our own evolving standards of decency. Stanford had erected an artificial wall against the impact of international law on our law and practice that the Atkins Court subtly but effectively tore down. The Atkins Court factored into its decision that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." That is even more true for crimes committed by juveniles, who are universally protected. Within the United States, as well, protection of juvenile offenders is notable. Almost the same number of state statutes set the eligibility age at 18 as bar the execution of persons with mental retardation. Except in our state, the execution of juvenile offenders is rare among the states ("unusual" if you will). In the last nine years only Texas, Oklahoma, and Virginia have executed persons who were under 18 years old at the time of their offense. The factors that the Atkins Court found to make persons with mental retardation less morally culpable and also less likely to be deterred by the death penalty apply with equal if not greater force to a 17-year-old.

The International Law Ban on the Death Penalty for 17-Year-Olds

The ban on the death penalty for juvenile offenders (persons under 18 at the time of offense) is fortified by inclusion in the major human rights treaties and almost universal practice. The United States and Somalia are the only countries in the world that have not recognized the ban by ratifying the United Nations Convention on the Rights of the Child. Recently, however, Somalia (which had not had an effective centralized government) signed the treaty and promised to quickly ratify it. The countries other than the United States that formerly offended the ban, by and large, have ceased executing juvenile offenders. Within the past two weeks (on July 24, 2002) a Pakistani government official announced that 74 juvenile offenders had their sentences commuted to life in prison in conformance with the relatively new domestic legislation setting the eligibility age for the death sentence at 18. In another very recent example, the Philippines is lifting a moratorium on executions. However, this week the Philippine Supreme Court ordered 12 juvenile offenders removed from death row, asserting that it would be against the law to execute them. "Death row is no place for youthful offenders," the Court said. "The law provides that minority is a privileged mitigating circumstance which prevents the imposition of the death penalty." These are perhaps the most recent dramatic developments indicating compliance by the rest of the world to what has become recognized as a mandatory and universal legal norm. Texas leads the world in executing juvenile offenders. Now that Pakistan has begun commuting the death sentences of its juvenile offenders, we also likely have the largest "juvenile" death row in the world.

New Scientific Evidence that the Death Penalty is Inappropriate for 17-year-olds

Scientific evidence developed over the last decade indicates that any 17-year-old must be presumed to have a "diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, [and] to control impulses" (the characteristics the Atkins Court finds to exempt persons with mental retardation). The components of the human brain that directly affect these capacities (and criminal responsibility) do not fully develop until the early 20s. Thus, any individual 17-year-old defendant should be assessed as having a diminished capacity to be held morally culpable for the most serious offenses. Unlike the situation with a defendant alleging mental retardation, there is no way to conduct the accurate individualized assessment of a child defendant's moral culpability that is required by the Eighth Amendment, because there is no way to know whether, at the time of the offense, the defendant was a completed individual with a fully realized brain. Please see the attached affidavit by Dr. Ruben Gur, a neuropsychologist at the University of Pennsylvania, who has been at the forefront of modern research into the developing brain. Dr. Gur's affidavit recently was filed with Toronto Patterson's post-conviction petition at the Court of Criminal Appeals, challenging his August 28th execution date. Dr. Gur writes that, "since brain development in the relevant areas goes in phases that vary in rate and is usually not complete before the early to mid-20s, there is no way to state with any scientific reliability that an individual 17-year-old has a fully matured brain (and should be eligible for the most severe punishment), no matter how many otherwise accurate tests and measures might be applied to him at the time of his trial for capital murder."

Upcoming Execution Dates for Texas 17-Year-Old Offenders: Jones and Patterson

Our State recently executed Napoleon Beazley and has scheduled two more juvenile offenders for execution this month: T.J. Jones on August 8th and Toronto Patterson on August 28th. Both cases are troubling, not only because of the juvenile status of the defendants, but because of the quality of legal representation they appear to have received and issues of fairness that the courts may have failed to address. Jones' trial attorneys' conceded in their closing arguments that he posed a risk of future dangerousness, despite very prescient testimony by their own expert that, due to the factors addressed by Dr. Gur in his affidavit, it is not possible to predict future dangerousness of a juvenile offender. In turn, reminiscent of Napoleon Beazley's case, Patterson's appointed state habeas attorney filed what appears to be a very inadequate 6 page petition, waiving serious issues such as whether Patterson's trial counsel presented evidence that would allow the jury to consider Patterson's juvenile status as mitigating. In both cases, the trial attorneys appear to have failed to facilitate the juries' ability to give full mitigating weight to the defendants' minor age at the time of the offense.

The Danger of Miscarriage of Justice posed by T.J. Jones' Execution Date

I understand that Patterson will challenge his death sentence in a clemency petition to be filed with the Board of Pardons and Paroles. T.J. Jones, however, apparently has decided to instruct his attorney not to pursue any more relief. This is particularly troubling in his case, because his defense expert at trial tested his full scale IQ at 78. Depending on whether there are prior test results indicating a lower score or on how Texas ultimately defines mental retardation to comply with the Atkins decision, Jones has the potential to fall into the category of persons whom the Supreme Court has directly ruled ineligible for execution. The lack of a firm definition means that, quite apart from the legal issue regarding Jones' age, it may be legally imprudent for Texas to execute Jones due to possible mental retardation. The Texas Department of Criminal Justice Classification Plan, which came out in March 2002, references a Mentally Retarded Offender Plan to be utilized when the inmate has a full scale IQ of 73 or below or a social history indicative of mental retardation. Jones might fall within this TDCJ definition, because his adaptability skills seem poor in the social history developed in trial testimony.

Jones' psychological expert, Dr. Craig Moore, testified that he was borderline mentally retarded. He described Jones as passive, having the psychological maturity of a 10 or 12 year old. He was a teenager who liked to play with smaller children's toys. "How he sees and how he relates, how he misinterprets, how he uses fantasy to solve his problems, how he's confused by how things work, how is it some people drive nice cars and I don't have a car. . . . [E]very part of interacting with his environment, even when he is watching T.V., will be that of a child who is ten or twelve years old." Jones had no history of violence toward others, although he was picked up once for vandalizing a school while other kids watched and for a theft-related offense carried out with other kids. Jones' only two assaultive offenses, which occurred within four days of each other, were quite brutal, but also strongly suggest vulnerability to peer pressure, lack of awareness of consequences, and a high degree of impulsiveness. In one offense, while other youths waited for him in the car, Jones allegedly opened fire on a service station attendant without announcing that he was conducting a robbery, and inexplicably while a witness was still in the store. In the other (capital) offense, Jones shot the victim once, again while three other young people hopped into the victim's car. The planning of these crimes among the youths involved seems very impulsive and thoughtless. An older youth, with whom Jones lived, held himself aloof from the actual commission of the crimes, while providing Jones with the weapon and encouragement.

Dr. Moore found attributes in Jones suggesting that he may have been neurologically damaged. Jones would rock himself to sleep at night, which Moore considered a sign of possible neurological damage since birth. The sudden, unprecedented onset of violent behavior by Jones - the two shootings within four days -- also made Dr. Moore suspect a neurological problem, but Jones was never tested by a neurologist. When Jones was in the womb, his mother was beaten by his father, whom he never knew. An only child, Jones had to cope with his mother's male partners. At least one was violent toward his mother over a two year period before Jones became a teenager. His mother testified that, when the violence commenced, Jones would start to hum, shake, and rock, and would only stop when the violent incident was over. Dr. Moore described a kid who, as a result, was fearful of others and had a very difficult time forming any close attachments. Jones' childhood and responses to stress fit a pattern recognized by brain development specialists as "hyper-arousal." Dr. Bruce Perry, a Texas medical specialist on the effects of violence and trauma in childhood on later violence, has studied the way in which the kind of environment described by Jones' mother causes actual brain and other physiological changes in juveniles. One of his reports is attached.

Dr. Moore testified that a structured environment with strict and quick consequences for maladaptive behavior might have prevented Jones from falling into the violent crime. Although he had juvenile arrests, the juvenile justice system did not react to those offenses in a way that would have caught his attention. As he became older, Jones left his mother's home a couple of times, and when she tried to get help from the police to find him after he turned seventeen, she was told "there's nothing they could do." Jones' mother asked the jury to "give him some hope - give him life." She expressed concern for the family of Jones' victim, Willard Lewis Davis, and punctuated her own plea for mercy by commenting, "That is my only child." The mother and the child in this instance appear to have suffered a lifetime vortex of violence. The State of Texas, although certainly not responsible in any way for Jones' crimes, did not effectively provide a safety-net for this vulnerable family. And now it plans to kill the son for his juvenile offenses.

When our society talks about applying the punishment goal of rehabilitation to juvenile offenders, it reasonably refers to a right of "second chance" that a child caught in crime ought to have. It accommodates what recently has been proven a fact: that the person who committed the crime was not biologically complete and will indeed be someone new and finished at a later date. There is absolutely no excuse for T.J. Jones' crimes. At the same time, our society must determine whether it is any less wrong to give the ultimate sanction to the "not yet" developed as to those who may be permanently underdeveloped. Indeed, the involuntary factors that may make juveniles dangerous to others may be mitigated or disappear within a few more years' growth.

Summary and Recommendations

Governor Perry, you are faced with an unenviable dilemma with T.J. Jones' case. He now is a young man who apparently has chosen to allow the State of Texas to kill him. On the other hand, his execution without doubt would be a violation of international law and, for a couple of sound reasons, it also may violate the Eighth Amendment of the federal constitution. In the wake of Atkins, Stanford v. Kentucky no longer clearly excuses the execution of T.J. Jones. Additionally, his IQ score of 78, coupled with a fairly obvious lack of adaptability skills, should raise concern that Atkins might directly bar his execution. There may be earlier, lower school IQ scores indicating mental retardation. Without a full record - which is unavailable at this time due to Jones' decision to waive all potential relief - the State of Texas has no way of knowing whether it is carrying out a constitutionally permissible punishment.

I recommend that you exercise your constitutional reprieve power in T.J. Jones' case by granting him one thirty-day reprieve. Additionally, I propose you use your good office to recommend that the State of Texas place a moratorium on the execution of juvenile offenders to be re-examined at six month intervals, allowing time for legislative and/or judicial solutions to be obtained before any more juvenile offenders are executed.

Obviously, you cannot require that executions be halted, other than using your constitutional power to give a 30 day reprieve. However, as governor, you have the influence, the bully pulpit, if you will, to ask for cooperation by the Board of Pardons and Paroles and the Texas Court of Criminal Appeals, which do have the power to stay these executions.

In the immediate case of T.J. Jones, you could request that the trial officials (the Gregg County District Attorney, Gregg County Sheriff, and the District Judge for the 124th Judicial District Court of Gregg County) refrain from setting another execution date or that the Court of Criminal Appeals issue, on its own motion, an indefinite stay of execution.

I do not make these proposals lightly. And they are not intended to in any fashion lessen the gravity of the crimes or to diminish the grief of the victims, whose losses are real. Willard Davis lost his life. His family will never get him back. Michael Bell may forever be in a wheelchair. T.J. Jones' actions cannot be undone. But, neither can the actions of the state of Texas be reversed when the sanction is death. The execution of juvenile offenders is a grave miscarriage of justice.

Best regards,

Lon Burnam

ATTACHMENTS:
Atkins v. Virginia
Affidavit by Ruben C. Gur, Ph.D.
Article by Bruce D. Perry, M.D., Ph.D.
Constitutional Project, Mandatory Justice (Excerpt)
Office of the Attorney General, State of Arizona, Capital Cases Commission, Interim Report (Excerpt)
Executions of Juvenile Offender in U.S. (1985-2002)
Juvenile Offenders on Texas Death Row

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