Stop Killing Kids: Why it's Time to End the Indecent Practice of the Juvenile Death Penalty

Document Date: October 25, 2004

Stop Killing Kids: Why it’s Time to End the Indecent Practice of the Juvenile Death Penalty

Since 1973, the death penalty has been imposed on 228 children under 18 in the United States. Of these, 21 have been executed and 80 still remain on death row. The Supreme Court is currently set to rule on the constitutionality of the juvenile death penalty. If the Justices determine, as we believe they will, that the barbaric practice of executing juvenile offenders has become so outmoded as to be no longer in keeping with our constitution, the United States will finally join the rest of the world in the 21st Century.

On October 14, the Supreme Court heard oral arguments in Roper v. Simmons, the Missouri case in which the state court found the practice of executing juveniles to be unconstitutional under the Eighth Amendment. Relying on the 2002 Atkins v. Virginia opinion, the Missouri Supreme Court found that the same rationale for striking down the death penalty for mentally retarded offenders applied to ending the death penalty for juvenile offenders.

In most areas of our lives, the law places strict prohibitions on children. People under age 18 may not vote, serve in the military (without parental permission), serve on juries, make medical decisions, enter into contracts, marry (without parental permission), leave home (without parental permission), buy cigarettes, or drink alcohol. These rules have been established precisely because we believe that adolescents are less mature than adults and less capable of making good decisions. Why then under capital punishment laws, should juveniles be found to be the most culpable and worthy of the harshest punishment?

Our knowledge that children are different than adults has been further confirmed by rapidly advancing technology in brain development research. Recent studies have shown that the parts of the brain that govern judgment, reasoning, and impulse control are not fully developed until the early 20’s. Through magnetic resonance imaging, scientists have learned that human brains continue developing until at least the early 20’s. The last part of the brain to develop, the pre-frontal cortex, governs judgment, reasoning and impulse control. This means that while adolescents may be capable in other areas, they cannot reason or control their behavior as well as adults and should, therefore, not be held to the same level of culpability.

In light of this new research, and based on legal precedence, it is hard to imagine that the Supreme Court could do anything but uphold the Missouri decision. The issues of executing mentally retarded people and juvenile offenders are practically mirror images of one another. In deciding to strike down the death penalty for mentally retarded offenders, the court considered a wide range of information, all of which tilted in favor of ending the practice. The court noted that 30 states, along with the federal government and the District of Columbia, already barred execution of mentally retarded offenders. The court also considered the fact that public opinion – both here and abroad — was firmly against executing mentally retarded offenders as demonstrated by public opinion polls, the positions of dozens of professional organizations, religious institutions, and the laws of other countries. The court considered as well the fact that only five known mentally retarded people had been executed since 1989, which was the year the Justices last considered the issue.

In its ruling, the court declared that the dual justifications for the death penalty – retribution and deterrence – made no sense when it came to executing mentally retarded people. Because of their mental limitations, mentally retarded people are less able to act with premeditation and deliberation and are, therefore, less likely to be deterred by the threat of a death sentence. In addition, their limited mental capacity makes them, by definition, less culpable than a person with normal mental functioning, and, therefore, less deserving of the death penalty from a retributive point of view. This is not to say that mentally retarded people should not be punished. They can and do receive harsh punishments, including life without parole.

The Atkins analysis applies with equal, if not greater, force to the juvenile death penalty. Thirty-one states forbid executing offenders under 18, which is even more states than those that had eliminated the death penalty for mentally retarded people. Seven out of 10 Americans oppose the juvenile death penalty and nearly every major religious denomination, children’s group, and legal and medical association oppose the practice.

The actual execution of juveniles has also become unusual in recent years. Only seven states – Missouri, Texas, Virginia, Georgia, Oklahoma, South Carolina, and Louisiana – have actually executed a juvenile offender since 1989, although 19 states still have a juvenile death penalty on the books.

Lastly, as the Missouri Supreme Court concluded, the values of retribution and deterrence are not served by the death penalty because juveniles, whose brains are not fully developed and are less able to make sound and responsible choices, are less culpable than adults and less likely to be deterred by the death penalty. This is not to say that being under age 18 should be a pass to commit murder. On the contrary, juveniles can be prosecuted and convicted in adult court and sentenced to lengthy sentences, including life without parole.

During oral argument, some of the Justices, most notably Justice Kennedy, questioned how much weight the court should give to international opinion in making this decision. The court must be painfully aware of the fact that the United States is virtually isolated in the world community as one of the few nations that continues to carry out executions of juvenile offenders. Since 2000, only five countries have reportedly executed juvenile offenders: Congo, Iran, Pakistan, China, and the United States. However, at present time, all of these countries except the U.S. have now renounced the practice. Numerous international treaties prohibit the juvenile death penalty, the most notable being the Convention on the Rights of the Child, which only two countries – Somalia and, embarrassingly, the United States – refused to ratify. In fact, the prohibition is so well established that the Inter-American Commission on Human Rights ruled in Domingues v. Nevada that executing those who committed crimes while under the age of 18 is a violation of a “jus cogens” – a sort of universal human rights standard — making it akin to genocide, slavery and apartheid.

Yes, Justice Kennedy, the court should consider the human rights standards established by the international community and it is time that we join the rest of the world in ending this indecent practice.

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