Juveniles and
the Death Penalty
Class 10
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.
• 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.
• 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.
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.
– 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.
• 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.
– 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.
Figure 1a. Total Juvenile and Adult Death Sentences
in State Courts, 1976-2003
400
24
Adult Death Sentences
20
02
*
0
20
00
0
19
98
3
19
96
50
19
94
6
19
92
100
19
90
9
19
88
150
19
86
12
19
84
200
19
82
15
19
80
250
19
78
18
Year
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.
Number of Juvenile Death
Sentences
21
Juvenile Death Sentences
300
19
76
Number of Adult Death Sentences
350
Figure 1b. Juveniles and Adults Executed,
State Convictions Only, 1976-2003
100
5
Adults Executed
Juveniles Executed
80
4
60
3
50
40
2
30
20
1
10
20
02
*
20
00
19
98
19
96
19
94
19
92
19
90
19
88
19
86
19
84
19
82
19
80
0
19
78
0
19
76
Adults Executed
70
Year
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.
Juveniles Executed
90
Figure 2a. Adults on Death Row and
Percent Executed, 1976-2003
4,000
Adults on Death Row
Percent Adults Executed
4.5
3,000
3.5
2,500
3.0
2,000
2.5
1,500
2.0
1.5
1,000
1.0
500
0.5
0
0.0
Year
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.
Percent Executed
4.0
19
19 76
19 77
19 78
19 79
19 80
19 81
19 82
19 83
19 84
19 85
19 86
19 87
19 88
19 89
19 90
19 91
19 92
19 93
19 94
19 95
19 96
19 97
19 98
20 99
20 00
20 01
20 02
03
Death Row Population
3,500
5.0
Figure 3a. Juveniles on Death Row
and Percent Executed, 1976-2003
12.0
90
70
60
Juveniles on Death Row
Percent Executed
8.0
50
6.0
40
4.0
30
20
2.0
10
0.0
0
Year
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.
Percent Executed
10.0
19
7
19 6
7
19 7
19 78
7
19 9
8
19 0
19 81
8
19 2
19 83
8
19 4
8
19 5
19 86
8
19 7
8
19 8
19 89
9
19 0
9
19 1
19 92
9
19 3
9
19 4
19 95
9
19 6
19 97
9
19 8
9
20 9
20 00
0
20 1
0
20 2
03
Death Row Population
80
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)
• 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)
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
Age Eighteen
California*
Colorado*
Connecticut*
Illinois*
Indiana*
Kansas*
Maryland*
Montana*
Nebraska*
New Jersey*
New Mexico*
New York*
Ohio*
Oregon*
Tennessee*
Washington*
Federal Civilian*
Federal Military*
16 states and 2 federal jurisdictions
Age Seventeen
Florida***
Georgia*
New Hampshire*
North Carolina*
Texas*
_________________
5 states
Age Sixteen
Alabama*
Arizona**
Arkansas**
Delaware**
Idaho**
Kentucky*
Louisiana**
Mississippi**
Missouri*
Nevada*
Oklahoma**
Pennsylvania**
South Carolina**
South Dakota**
Utah**
Virginia*
Wyoming*
17 states
* Express minimum age in statute
** Minimum age required by U.S. Constitution per U.S. Supreme Court in Thompson v. Oklahoma, 487
U.S. 815 (1988).
*** Minimum age required by Florida Constitution per Florida Supreme Court in Brennan v. State, 754
So.2d 1 (Fla. 1999).
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
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
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…”
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
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
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).
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?
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?)
• 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
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
• The Simmons decision noted the special
risks of false confessions for adolescents,
issues which the Stanford court had deemed
“irrelevant.”