Juveniles and the Death Penalty
The death penalty is an inappropriate penalty for individuals who have not attained full physical or emotional maturity at the time of their actions. Currently, thirty eight states and the federal government have statutes authorizing the death penalty for certain forms of homicide. Of these 38 states, four have chosen the age of 17 and 20 states use age 16 as the minimum age a person must be in order to receive the death penalty. About one in every 50 individuals on death row are juvenile offenders. Almost three percent of all new court commitments to death row are those persons who committed their crimes while a juvenile. Imposing sentences of Alife without parole@ on waived youth for crimes committed at 13 or 14 years of age and executing them for crimes committed at 16 or 17 challenges the social construction of adolescence and the idea that juveniles are less criminally responsible than adults. Streib found that executions for crimes committed by youths under 18 account for 1.8 percent (357) of all confirmed legal executions carried out between 1642 and the present. As of March, 2004, there were 73 persons (28 in Texas) on death row who were juvenile offenders when they committed their crime. Between 1976 and March, 2004, twenty-two juvenile offender executions have been carried out in the U.S.
In the world, the U. S. accounts for the majority of known juvenile offender executions and it has more juveniles on death row compared to any other country. More than 72 countries that retain the death penalty in law have abolished it for juvenile offenders. The United States stands along with five other countries in which such executions are reported to have been carried out in the 1990s: Iran, Pakistan, Saudi Arabia, Yemen, and Nigeria. In other words, the United States stands alone among western, democratic nations that impose the death penalty upon those who commit their crimes as juveniles.
The imposition of the death penalty on juveniles is not without international criticism. Eleven countries, Belgium, Denmark, Finland, France, Germany, Italy, Netherlands, Norway, Portugal, Spain, and Sweden have voiced their objection of this continued practice across the United States. The United Nations Human Rights Committee contends that the U.S. “undermine the effective implementation of the Covenant [International Covenant on Civil and Political Rights] and tend to weaken respect for the obligations of the State parties.”
The legality of capital punishment for juveniles is left up to each individual jurisdiction. In the case of Thompson v Oklahoma (487 U.S. 815,1988), the Supreme Court ruled that executing youths under the age of 16 was unconstitutional and “the chronological age of the minor is itself a relevant mitigating factor” (Eddings v. Oklahoma 455 U.S. 104, 1982).
Public calls for the death penalty for juvenile offenders are made in response to high-profile juvenile homicides. Several politicians appear to be in a contest for who can appear to be the toughest. The governor of New Mexico has publicly stated that he favored the death penalty for juveniles as young as 13. The governor of California has indicated personal support for the death penalty against 14 year olds, and a Los Angeles District Attorney stated that he favored the death penalty for children “no matter what their age.” A Texas state representative contemplated introducing legislation under which 11 year olds who commit murder could be sentenced to death.
In 1998, the case of Michael Domingues was brought before the Nevada Supreme Court. Michael Domingues was convicted in 1994 for a crime he committed when he was 16 years old, the murder of his next door neighbor and her four year old son in their home. His case was appealed based on the violation of international law and the U.S. ratification of International Covenant on Civil and Political Rights (ICCPR). The Nevada Supreme Court voted that the death sentence was legal and binding. The justices stated that “many of our sister jurisdictions have laws authorizing the death penalty for criminal offenders under the age of eighteen and such laws have withstood Constitutional scrutiny.” The Court reached this conclusion by looking at other U.S. states rather than examining international opinion or practice. They also ignored the fact that in 1998, 14 states and two federal jurisdictions (civilian and military) have legislation that prohibits the death penalty for any juvenile offender. Yet, there is a long-standing principal of international jurisprudence that the nation state is the subject of international law, which the United States continues to ignore.
Violations of International Laws and Treaties
According to United Nations, the U.S. policy on executing juvenile offenders violates international laws and treaties signed or ratified by the United States. In 1955, the United States ratified Article 68 of the Fourth Geneva Convention (1949), Relative to the Protection of Civilian Person in Time of War, which states “. . . the death penalty may not be pronounced on a protected person who was under 18 years of age at the time of the offense.” Thus, for four decades, the U.S. has protected all civilian youthful offenders in protected countries from the death penalty during war or armed conflict. Yet, U.S. policies and practices refuses to protect youth in this country during peace. The International Covenant on Civil and Political Rights was signed by the U.S. in 1977 and ratified in 1992. The provisions in this Covenant include that youth should be separated from incarcerated adults and receive appropriate treatment (Article 10), and the death penalty (Article 6) must not be imposed for crimes committed by juvenile offenders. The U.S. submission to the Human Rights Committee examining compliance with ICCPR states that the U.S. reserves the right to treat juveniles as adults in exceptional circumstances, including the right to imprison children with adults and imposing the death penalty. These exceptional circumstances include juveniles as young as 13 and 14 years old being housed with adults. The U.S. government submitted that "the policy and practice of the United States are generally in compliance with and supportive of the Covenant=s provisions regarding treatment of juveniles in the criminal justice system. Nevertheless, the United States reserves the right in exceptional circumstances to treat juveniles as adults . . ."
The Inter-American Commission on Human Rights has also found that the United States violates international law, as did the U.N. Special Rapporteuer , which “emphasizes that international law clearly indicates a prohibition of imposing the death sentence on juvenile offenders. Therefore, it is not only the execution of a juvenile offender which constitutes a violation of international law, but also the imposition of a sentence of death on a juvenile offender by itself.” Nevertheless, the Republican National Committee Chairperson called on the U.S. administration to publicly renounce this report and ensure that none of the U.S. debts to the U.N. were paid until the report was formally withdrawn and apologized for. After all, the United States holds the power in the world, so we can apparently ignore such laws if we see fit.
Further, the U. S. resists international human rights commitments for children in the failure to ratify the Convention of the Rights of the Children (CRC). A total of 192 countries have ratified the convention, while two countries have not B United States and Somalia. Article 6 of the convention states that all children must be guaranteed the right to survival, life and development. Article 3 refers that the “best interests of the child” should be a primary consideration. These laws apply to all juveniles, including those who are accused or convicted of violating the law.
The general perception that human rights are a prerogative of international affairs and not a domestic issue is predominant in state jurisdictions. Within the U.S., state and local jurisdictions have a low level of awareness of international human rights standards. Hence, human rights seem not to be taken seriously in the U.S. When defense attorneys bring international human rights issues in the courtroom, judges and prosecutors dismiss treaties and international laws, stating that such laws are irrelevant because it is not a state law. This demonstrates a serious gap between federal and state governments concerning international obligations taken by the U.S. government. The United Nations documents that the U.S. cannot claim to represent states at the international level and ensure that human rights obligations are fulfilled.
The vast majority of juvenile offenders executed in the U.S. before 1972 were sentenced to death and executed while still teenagers. The current application of the death penalty means that most juvenile offenders will be well into their adult years by the time they are executed. Perhaps the fact that it is not actually a child strapped down and killed makes it easier for society to stomach this human rights violation. The fact remains, however, that such prisoners are being executed for crimes they committed as juveniles. Many have been sentenced to death by juries that were no in the position to fully consider the mitigating aspects of the youth and their background.
For instance, on October 14, 1998 Dwayne Allen Wright was executed in the Greensville Correctional Center, Virginia. Dwayne Wright grew up in a poor family in a neighborhood characterized by illegal drug activity, gun violence and homicides. At the age of four, Dwayne=s father was incarcerated. His mother, suffering from mental illness, was unemployed for most of his life. When he was 10, his older brother was murdered, after which he developed serious mental problems. He did poorly at school and for the next seven years spent time in hospitals and juvenile detention facilities. He was treated for major depression with psychotic episodes, his mental capacity was evaluated as borderline retarded, his verbal ability retarded and doctors found signs of organic brain damage. Many appealed to the state governor to give Dwayne clemency. These included appeals from the American Civil Liberties Union, Reverend Jesse Jackson, and Senator Edward Kennedy. The American Bar Association president reportedly wrote: “A borderline mentally retarded child simply cannot be held to the same degree of culpability and accountability for their actions to which we would hold an adult.” Dwayne Wright=s attorneys obtained affidavits from two jurors in his 1991 capital trial who stated that they would not have sentenced him to death had they known of brain damage suffered at birth which left Dwayne prone to violent outbursts. One juror stated “Had I been told the truth about Dwayne during his trial, I never would have voted to impose a death sentence.” 
On January 10, 2000, Douglas Christopher Thomas was executed in Virginia. Questions still remain about his responsibility for the crime he was convicted, killing his girlfriend=s mother. Witnesses have come forward before his execution to reveal that Thomas= co-defendant (his girlfriend, Jessica Wiseman) admitted that it was her that killed her mother. Further, psychologists chosen by the Commonwealth found Thomas= intellectual deficits and emotional disturbances mitigated the criminal behavior. In fact, the Commonwealth=s psychologist opposed Thomas’ execution.
The United States Supreme Court finally decided to take up the issue of the use of the death penalty against those who commit their crimes when under the age of 18, when it considered the case of Roper v. Simmons. In a surprising 5-4 decision the Court ruled that applying the death penalty against juveniles violated the 8th Amendment to the Constitution. Writing for the majority, Justice Anthony Kennedy wrote: “The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.”
The Supreme Court, which had abolished executions for the mentally retarded two years ago, decided to take a closer look at the death penalty for crimes committed as juveniles. Four members of the Supreme Court had already gone on record as being against the practice, with Justice John Paul Stevens noting that “The practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society.” His opinion was shared by Justices David H. Souter, Ruth Bader Ginsburg and Stephen Breyer. These views echo the court’s 2002 ruling that it is unconstitutional to execute the mentally retarded. In both types of cases, at issue was a defendants’ ability to understand their situation, plus their level of culpability.
In December, 2003, the jury in the case against convicted Washington, DC sniper Lee Malvo, who was 17 at the time of the killings, decided against applying the death penalty. This case will probably have some bearing on the Supreme Court=s decision in the Roper case.
The case of Roper v. Simmons had taken on perhaps more importance since for the first time ever medical science has weighed in on this issue. Specifically, recent research on the development of the brain among adolescents has shed new light on the subject. This warrants further discussion.
The Case of Roper v. Simmons
It is a well recognized and documented fact that the years known as “adolescence” are filled with all sorts of trials and tribulations – storm and stress as it is often called. Always has been and always will be. A friend once gave this definition of adolescence: “adults with less sense.” Even the term “juvenile delinquent” and the mere existence of a “juvenile” court reflect the popular recognition that kids are still growing up. The term “juvenile” means “young, immature, redeemable, subject to change.” We as a society have long recognized this, which is why we place impose special restrictions on their behaviors, such as voting, serving on a jury, entering into contracts, getting married, consuming alcohol and tobacco, and many more. We even limit what kinds of movies they can see without an adult present.
However, when it comes to the death penalty, we were, before this ruling small number of nations that treated them as adults (Congo, Nigeria, Saudi Arabia, and Iran) and even these nations rarely use it. In fact, the United States ranks first in the world in the execution of juveniles in the last 10 years.
The case of Roper v. Simmons (No. 03-0633) involved Christopher Simmons, who was 17 when he was arrested for murder of Shirley Crook in Missouri in1993. In 2003, his case was reviewed by the Missouri Supreme Court. The court determined that juvenile executions violated the Eighth Ammendment's provision against cruel and unusual punishment under the “evolving standards of decency” test. Simmons' death sentence was vacated and he was sentence to life without parole. The case was appealed by the State of Missouri in July, 2004. Amicus briefs have been submitted by such notables as President Jimmy Carter, the American Medical Association, the European Union, and the U. S. Conference of Catholic Bishops.
In their decision to overturn the death penalty, the Missouri Supreme Court cited the case of Atkins v. Virginia where the U.S. Supreme Court banned the execution of mentally retarded people. In this case, the Court stated that although they often know the difference between right and wrong, mentally retarded people “have diminished capacities to understand and process mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.” The Court also said that while such deficiencies do not warrant an exemption from criminal sanctions…they do diminish their personal culpability.”
In the Simmons case defense lawyers cited recent research on brain development during adolescence. Several recent studies have begun to demonstrate (using the latest technology such as magnetic resonance imaging – MRI) that the pre-frontal cortex (called the “CEO” of the body), which enables mature humans to make good, mature decisions (“prioritize thoughts, imagine, think in the abstract, anticipate consequences, plan, and control impulses”), are not fully developed until around the ages of 18 to 21 and in many cases the mid-20s.
Researchers, such as those at Harvard Medical School, the National Institute of Mental Health, and UCLA, have found, by tracing brain development throughout the teenage years, that what is know as “gray matter” that causes impulsive behavior does not begin to fade until the late teens. During most of the teenage years, there is a release of hormones (starting around puberty) that causes areas of the brain such as the amygdale (which governs our emotional, “gut” responses) to expand, thus causing some very irrational and impulsive behavior.
Speaking of amygdale, research on “risk awareness” reveal that adolescents are more apt to engage in erratic behavior than adults. A study done at Harvard Medical School in 1999 presented teenagers with pictures of faces showing fear and compared the responses to those of a sample of adults. An MRI showed that in “both adolescents and adults, the amygdala burst with activity when presented with a face showing fear. But the prefrontal cortex didn't blaze in teens as it did in adults, suggesting that emotional responses have little inhibition. In addition, the teens kept mistaking fearful expressions for anger or other emotions.”
Teenagers are especially bad “at the kind of thinking that requires looking into the future to see the results of actions, a characteristic that feeds increased risk-taking,” says one researcher. More importantly, they tend to “have trouble generating hypotheses of what might happen,” in part because “they don't have access to the many experiences that adults do. The ability to do so emerges between 15 and 18 years of age.”
They also have trouble making good decisions. One researcher noted that “We have some new insight into the 16 year-old that doesn't think twice about getting in a car with a friend who's been drinking, but they're still not going to appreciate adults’ arguments for why they shouldn't.”
As a result of recent MRI studies, researchers are detecting certain physiological changes which may help explain such typical adolescent behaviors as emotional outbursts, reckless behavior (taking enormous risks and violating rules, “and the impassioned pursuit of sex, drugs and rock 'n' roll.” Some of these researchers “believe the structural changes seen at adolescence may explain the timing of such major mental illnesses as schizophrenia and bipolar disorder. These diseases typically begin in adolescence and contribute to the high rate of teen suicide.” Many describe “wild conduct” (once simply blamed on “raging hormones”) is really the result of an excess of hormones and a scarcity of the cognitive controls that are required for mature behavior.
Briefs filed jointly by eight medical and mental health associations (e.g., American Medical Association) cited numerous studies in the developmental biology and behavioral literature to support the argument that the brains of adolescents that relate to criminal responsibility do not develop until after the age of 18, so that 16 and 17 year old youths (Simmons was 17 at the time of the murder) are still developing. While this does not excuse the behavior it is certainly a mitigating factor that must be considered when deciding on the punishment.
In an amicus curiae brief filed jointly by several prominent organizations (American Medical Association, American Psychiatric Association, American Society for Adolescent Behavior, National Mental Health Association, among others) it was stated that:
Adolescents as a group, even at the age of 16 or 17, are more impulsive than adults. They underestimate risks and overvalue short-term benefits. They are more susceptible to stress, more emotionally volatile, and less capable of controlling their emotions than adults. In short, the average adolescent cannot be expected to act with the same control or foresight as a mature adult…Cutting-edge brain imaging technology reveals that regions of the adolescent brain do not reach a fully mature state until after the age if 18. These regions are precisely those associated with impulse control, regulation of emotions, risk assessment, and moral reasoning. Critical developmental changes in these regions occur only after late adolescence.
Additionally there are often dramatic hormonal and emotional changes. Especially relevant here would be testosterone, which relates to aggression.
As already eluded to, the above factors do not suggest excusing the behavior. However, it goes a long way in explaining behavior. As in all human behavior, there are causes, and often multiple causes. When entering into such a discussion we are starting down that slippery slope toward the “free will” argument. I don’t want to slip down that slope just yet, but a few points need to be raised.
While it is true that despite the lack of brain development does not mean every youth will go out and kill someone. On the other hand, what factors are present in the cases where this happens? A look at the background characteristics of those on death row who committed their crimes when under the age of 18 is revealing. Here we find all sorts of trauma. One recent study found that about three fourths experienced various kinds of family dysfunction, 60 percent were victims of abuse and/or neglect, 43 percent had a diagnosed psychiatric disorder, 38 percent were addicted to drugs and 38 percent lived in poverty. This same study also noted that 30 percent had experienced six or more “distinct areas of childhood trauma with an overall average of four such experiences per offender.” Few children and adolescents experience even one of these kinds of trauma. Curiously, such facts have been presented to less than half of the juries in the trials of such juveniles. 
Previous studies have arrived at similar conclusions, with one (focusing on 14 death row inmates) noting that well over half had either a major neuropsychological disorder or a psychotic disorder and all but two had IQ scores of under90. Just three had average reading abilities, while three learned to read while on death row. 
One unresolved issue is that while we have developed a much greater understanding of brain development in general, the idea that we should be working with some “ideal” or “normal” model of brain functioning. “Each individual is not an exact map,” says an attorney who deals with these cases, noting also that “the difficulties in determining what the range of variations are is really dangerous. The data is incredibly easy to be over-interpreted.”
Perhaps because of the inexact nature of science on this subject, pro-death penalty groups have dismissed most of the research. The president of Justice for All, a Houston nonprofit victim-advocacy group, said: “There is science, and then there is junk science." This is an effort by those in the scientific community who oppose the death penalty to use science to argue their position.” This person argues that many teenagers who kill realize their actions were wrong “because they often try to cover up and destroy evidence to avoid getting caught. What's more, most relatives of murder victims don't think a killer's age at the time of the crime should result in a lesser sentence.” This is often a response from those who take a “hard line” approach to crime, advocating letting the punishment fit the crime or “old enough to do the crime, old enough to do the time” and similar clichés.
While it is probably true that many try to cover up their crimes, it should also be noted that this is the way immature minds often work: they do not plan their crimes very well and cannot seem to hypothesize likely results, but then when they are confronted with the often horrible results they quite naturally try to pretend it didn’t happen. Also, labeling research coming from highly respectable associations like Harvard Medical School as “junk” shows ignorance of the scientific method. Moreover, a lot of research dispels common myths and “common sense” which make many people uncomfortable. As noted above, all too often scientists who engage in research on human behavior, especially criminal behavior, are accused of “excusing” the behavior, when in fact they are merely trying to explain the behavior. Many people – especially the victims and their supporters - are in no way seeking to understand what happened, at least not initially. To the contrary, they are looking for revenge.
Echoing my own feelings, an attorney in Miami who has represented juveniles facing capital punishment, has noted that science is quite often ahead of the law. For instance, the courts did not immediately support the use of DNA evidence. He said that “If you just focus on how horrible the crime was, a lot of people do not care how old the offender was. But the brain research begins to demonstrate that adolescents are less culpable than adults.”
This decision clearly represents a turning point in the history of juvenile justice, right along with such cases as In re Gault and Kent. The words of the Supreme Court are clear enough:
The Eighth and Fourteenth Amendments against “cruel and unusual punishments” must be interpreted according to its text, by considering history, tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework this Court has established the propriety and affirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be “cruel and unusual.” Trop v. Dulles, 356 U.S. 86, 100-101.
The Court continued by reviewing the case of executing a mentally retarded offender and applied the same logic regarding juveniles. What is equally important here is that this decision reinforces the need for a separate juvenile justice system. Furthermore, it may lead to the next logically step, which would be reviewing the certification of juveniles as adults. I would predict that very soon another case will find its way to the doorstep of the Supreme Court and this time it will challenge the constitutionality of certifying juveniles as adults.
 Strieb, V. L. (1999). “The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January, 1973-June, 1999.” http://www.law.onu.edu/faculty/streib/juvdeath.pdf.
 Feld, B. C. (1999). Bad Kids: Race and the Transformation of the Juvenile Court. Oxford: Oxford University Press. p. 236.
 Strieb, “The Juvenile Death Penalty Today”; American Bar Association (2000). “Three Juveniles Scheduled to Die in the First Month of the Millennium.”
http://www.abanet.org/crimjust/juvjust/deathpenalty.htm; American Bar Association, Juvenile Justice Center (2004). “Cruel and Unusual Punishment: The Juvenile Death Penalty.” Washington, DC: American Bar Association (figures quoted are as of March 16, 2004).
 United Nations (1997). International Covenant on Civil and Political Rights. Geneva, Switzerland: Office of the United Nations Commissioner for Human Rights.
 United Nations (1998). Question of the Violation of Human Rights and Fundamental Freedoms in any Part of the World, with Particular Reference to Colonial and other Dependent Countries and Territories, Mission to the United States of America. Geneva, Switzerland. United Nations, Economic and Social Council.
 Amnesty International (1998). On the Wrong Side of History: Children and the Death Penalty in the U.S.A. (AMR 51/58/98) New York: Amnesty International Publications.
 Amnesty International, Betraying the Young.
 United Nations, Question of the Violation of Human Rights and Fundamental Freedoms.
 Amnesty International, On the Wrong Side of History.
 United Nations, International Covenant on Civil and Political Rights.
 Ibid, p. 28.
 Paul, W. G. (1999). American on the Threshold of Setting a Shameful Record. Presidential Statements. American Bar Association.
 United Nations, Question of the Violation of Human Rights and Fundamental Freedoms, p. 10.
 Amnesty International, On the Wrong Side of History.
 Chomsky, N. (1988). The Culture of Terrorism. Boston: South End Press and (1999). Profit Over People. New York: Seven Stories Press.
 United Nations, Question of the Violation of Human Rights and Fundamental Freedoms; International Covenant on Civil and Political Rights.
 Amnesty International, On the Wrong Side of History.
 American Bar Association (2000). “Three Juveniles Scheduled to Die in the First Month of the Millennium.”
 Yen, H. (2005). “Supreme Court Strikes Down Death Penalty for Juveniles.” Associated Press, March 1. For complete Supreme Court ruling see the following web site: http://a257.g.akamaitech.net/7/257/2422/01mar20051115/www.supremecourtus.gov/opinions/04pdf/03-633.pdf
 Associated Press (2004). “Supreme Court to Consider Banning Execution of Teens,” New York Times, January 26.
 Liptak, A. (2003). “Penalty for Young Sniper Could Spur Change in Law.” New York Times, December 25.
 American Bar Association, Juvenile Justice Center (2004). “Cruel and Unusual Punishment: The Juvenile Death Penalty.” Washington, DC: American Bar Association, March 16.
 The Death Penalty Information Center provides complete coverage of this case. See the following web site: http://www.deathpenaltyinfo.org/article.php?scid=38&did=885.
 Atkins v. Virginia, 536 U.S. 304, 318, 122 S. Ct. 2242, 2250 (2002).
 “Cruel and Unusual Punishment.” Bowman, L. (2004). “New research shows stark differences in teen brains.” Scripps Howard News Service, May 11.
 Bowman, “New Research.”
 Beckman, M. (2004). “Crime, Culpability and the Adolescent Brain.” Science Magazine 305 (30), July.
 Wallis, C., K. Dell, A. Park (2004). “What Makes Teens Tick.” Time Magazine, May.
 Beckman, “Crime, Culpability and the Adolescent Brain.”
 Writ of Certiorari to the Supreme Court of Missouri, amici curiae in support of respondent, filed with the U.S Supreme Court in Roper v. Simmons. http://www.abanet.org/crimjust/juvjus/simmons/ama.pdf
 Mallett, C. (2003). “Socio-Historical Analysis of Juvenile Offenders on Death Row.” Juvenile Corrections Mental Health Report 65, cited in “Cruel and Unusual Punishment.”
 Lewis et al. (1988). “Neuropsychiatric, psychoeducational, and family characteristics of 14 juveniles condemned to death in the United States.” American Journal of Psychiatry 145, cited in “Cruel and Unusual Punishment.”
 “New research shows stark differences in teen brains.”
Davies, P. (2004). “Psychiatrists Question Death for Teen
Killers.” The Wall Street Journal, May 26, p. B1.
 Quoted in ibid.
 Roper v. Simmons (see note 33 for complete Supreme Court ruling).
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