1. Juveniles and the Death Penalty Class 10

2. Social and Legal Context Beginning with the first in 1642, at least 366 juvenile offenders have been executed. Twenty-two of these have occurred during the current era (1973-2003), constituting 2.6% of the total of the 859 executions during this period. Almost two-thirds of the recent executions of juvenile offenders have occurred in Texas, with no other country in the world actively involved in this practice. The most recent execution of a juvenile offender was in Oklahoma on April 3, 2003, but Oklahoma has no more juvenile offenders on death row and has not even sentenced a juvenile offender to death sentence for 8 years.

3. A total of 226 juvenile death sentences have been imposed since 1973. Of these, 78 remain currently in force and are still being litigated. Of the other 148 sentences finally resolved, 22 (15%) have resulted in execution and 126 (85%) have been reversed or commuted. The U. S. Supreme Court has held that the U. S. Constitution prohibits execution for crimes committed at age 15 and younger but permits execution for crimes at ages 16 or older. However, the Court recently has come within one vote of declaring unconstitutional all executions for crimes committed at age 17 or younger.

4. The annual death sentencing rate for juvenile offenses has been declining rapidly and now is much less than half of the annual rate of the late 1990s. Of the 40 death penalty jurisdictions in the United States, 18 jurisdictions have expressly chosen a minimum age of 18, 5 jurisdictions have chosen an age 17 minimum, and the other 17 death penalty jurisdictions use age 16 as the minimum age.

5. Rationales Arguments in Favor: –Violent juvenile crime, particularly homicide, apparently is much worse in America than in most other countries; –Juvenile homicide rates increased substantially until the mid- to late-1990s. Although they have fallen dramatically since that time, public fear of juvenile homicide remains very high.

6. –Juvenile murderers seem to be particularly brutal and non-responsive to civilized entreaties to stop the killing; –Almost every political leader is pushing strongly for harsher punishments for violent juvenile crime; and –Correcting the societal conditions which breed violent juvenile crime seems to be a huge task nearly impossible to achieve in any significant measure.

7. Arguments Opposed: –Almost all of these teenage offenders have had terrible childhoods. Given their youth, such teenagers have not yet had the opportunity to age out of some of the effects of their terrible childhoods. –Medical research during the past decade indicates that the adolescent brain does not mature organically until the late teens or early twenties, with impulse control being the last to fully develop.

8. –The threat of capital punishment does not deter teenagers who tend to have little realistic understanding of death and instead tend to see themselves as immortal. –The retributive desire to visit extremely harsh punishment upon egregious offenders is blunted at least somewhat if that offender is a child. –Harsh punishments for violent juvenile crimes are only temporary band-aid solutions, with the only effective long-term solutions coming from cleaning up the neighborhoods, schools, and societal structures that continue to generate such violent teenagers.

9. Source: Victor Streib, The Juvenile Death Penalty Today, http://www.law.onu.edu/faculty/streib/juvdeath.htm; Death Penalty Information Center, http://www.deathpenaltyinfo.org/article.php?scid=9&did=188#year; USDOJ, Bureau of Justice Statistics, "Capital Punishment" (various years), http://www.ojp.usdoj.gov/bjs/pubalp2.htm#C.

13. Juvenile Death Penalty Cases Eddings v. Oklahoma, 455 US 104 (1982) Thompson v. Oklahoma, 487 US 815 (1988) Wilkins v. Missouri (consolidated with Thompson) Stanford v. Kentucky, 492 US 361 (1989) Denial of Cert in Patterson v. Texas, 123 S.Ct. 24 (Mem) (August 2002) In re Stanford, 123 S.Ct. 472 (Mem) U.S. (October 2002) Simmons v Roper, Supreme Court of Missouri, SC84454 (2003 WL 20086834, August 26, 2003) (U.S. Supreme Court 06-633)

14. State Cases Permitting Execution of Defendants Age 15 at Time of Murder –Flowers v State (Alabama, 1991) –Allen v State (Florida, 1994) –Cooper v. State (Indiana, 1989) –State v Stone (Louisiana, 1988) –Dugar v State (Louisiana, 1993)

15. Current State Laws Among states with valid capital punishment statutes, 17 do not permit executions of persons whose capital crimes were committed before they reached age 18 28 states forbid execution of minors Since Stanford (1989), no state has lowered its minimum age for a death sentence to age 17 or 16 Since Stanford, five states have banned execution of persons below age 18 by legislative action, and a sixth by a judicial decision

18. Trends From 1973-2002, 224 death sentences have been imposed on persons who committed capital crimes while they were below age 18 21 persons have been executed (2.6% of the 820 executions) Florida, Texas and Alabama account for more than half of the juvenile death sentences in this era Two in three executions have occurred in Texas There have been six executions of minors since the 1989 Stanford decision

19. Lessons of Atkins Execution of Mentally Retarded violated Cruel and Unusual Clause of Eighth Amendment National Consensus Against Execution of Mentally Retarded “Special Risk of Wrongful Execution” Invitation by Three Justices in August 30, 2002 Cert dissent to consider extending the logic and jurisprudence of Atkins to juveniles

20. Culpability of Mentally Retarded Persons IQ plus “Socially Adaptive Behavior” Atkins Court cited limited capacities for reasoning, judgment, control of impulses, processing information, communication skills, susceptibility to peer influence Utah Sentencing Commission was first to incorporate these dimensions in new sentencing guidelines, others have done so starting this year “It is the same cognitive and behavioral impairments that make these defendants less morally culpable…”

21. Extending Atkins to Juveniles Many of the developmental incapacities that characterize mentally retarded persons also characterize juveniles Because of these deficits in cognitive and psycho-social functioning, minors have lower culpability for crimes than do adults Minors also have higher risk of serious trial error due to limitations in adjudicative competence, and these risks continue for some adolescents to age 18 and beyond

22. Culpability of Adolescents Law recognizes developmental limitations of adolescents in many areas of social functioning by setting age-specific thresholds of competency Acknowledged in Eddings and Thompson But Stanford Court rejected comparisons of other developmental realms to juvenile death penalty

23. Dimensionality of Adolescent Culpability Understanding and reasoning Social judgment –Risk preference –Future orientation –Consequences of actions Susceptibility to peer influence Impulsivity and self-regulation Development of brain functions tied to these behavioral domains (see, for example, affidavits in Toronto Patterson case).

24. Risk of Error in Individualized Assessments of Culpability Can we develop a “maturity heuristic”? Thresholds of deficit – how many standard deviations below mean to assume “deficit”? Thresholds of incapacity – non-negligible deficits on how many factors ? Reliability of measurement tools –Norms across populations –Reliability of biological and organic measures?

25. Why Create a Categorical Exemption at 18? Some juveniles will still be “immature” at ages 16 and 17, individualized assessment is imperfect method for such classifications Individualized assessments for juveniles will still invite both false positives and false negatives Risk of serious reversible error remains high Difficulty of communicating evidence to jurors Immaturity and other deficits concealed by physical appearance and demeanor (remorse?)

26. Clashes with legal norms about age-specific competencies of children in the law – there is no age-specific competency for “deterrence” Little trend to lower age of competence for other social or legal functions (e.g. voting) Adoption of “bright line” for execution of juveniles comports with the law’s comfort with bright lines in other realms of regulation of adolescence Minimizes error risks, thus helps resolve normative tensions and popular concerns for procedural fairness and reliability of death sentences

27. Will Simmons Prevail? The Simmons Court based its decision on the science and jurisprudence of Atkins. The Court addressed the challenge of “national consensus” raised by the S.Ct. in Penry and Atkins –Declining use of death penalty since 1995 –No state has lowered the age of eligibility, five have raised it The Simmons decision cited specific domains of immaturity, citing Eddings and Thompson, and making comparisons between the developmental disabilities noted in Atkins with the developmental immaturity of adolescents

28. The Simmons decision noted the special risks of false confessions for adolescents, issues which the Stanford court had deemed “irrelevant.”