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Juvenile Justice Publications
Juvenile Offenders and the Death Penalty
Child Welfare League of America
National Center for Program Standards and Development
Juvenile Justice Division
John A. Tuell
Director
The Child Welfare League of America (CWLA) established the Juvenile Justice
Division in July 2000, through a grant award from the John D. and Catherine T.
MacArthur Foundation. The objective of the award is to support the education
of CWLA members on the connections between the child welfare and juvenile
justice systems and the need for an integrated approach to programs and services,
reducing the incidence of juvenile delinquency nationwide, and reducing the
reliance on incarceration for accused or adjudicated youth.
The Juvenile Justice Division has a strong position of national leadership in
the integrated work of the child welfare and juvenile justice systems by helping
frame the national agenda for the future in behalf of children, youth, families,
and communities. As part of CWLA's commitment to address critical issues
affecting the juvenile justice system and the well-being of our nation's children,
youth, and families, the Juvenile Justice Division, with and through its member
agencies, will assume a position of national leadership in supporting efforts to
prohibit the imposition of the death penalty on any person for crimes committed
while younger than 18 years of age. The Juvenile Justice Division will promote
effective alternative sentencing and programming options for juvenile capital
offenders through the coordinated and integrated efforts of multiple youth-serving
systems.
This issue brief details the values, goals, and background of CWLA and the
Juvenile Justice Division that form the foundation for opposing the juvenile death
penalty and advancing alternative strategies that focus on rehabilitation and
deterrence as more efficacious solutions. This brief discusses the death penalty as
applied to juveniles, current statistics regarding capital punishment for juvenile
offenders, the status of state legislation, applicable Supreme Court decisions,
international law on the execution of juvenile offenders, a profile of a juvenile
offender sentenced to capital punishment, and alternatives to the death penalty
for juveniles. This information will educate practitioners, administrators, and
policymakers among CWLA member agencies and other juvenile justice agencies
about the ramifications of executing juvenile offenders in America. We hope that
this issue brief will motivate readers to become active participants in the comprehensive
and collaborative effort of the CWLA Juvenile Justice Division to
improve the lives of our nation's children, youth, and families through the promotion
of just and effective alternative strategies to capital punishment for those
committing crimes as juveniles.
CWLA gratefully acknowledges the outstanding contribution of Jamie
Zembruski, Georgetown University (GU) Law School student, to this issue brief.
While participating in the GU Off-Campus Federal Work-Study Program with
CWLA, Ms. Zembruski conducted research that supported the development of
this publication.
Historical Background on Juvenile Offenders and the Death Penalty
Since the first American execution of a juvenile offender in 1692, approximately
362 juvenile offenders have been sentenced to capital punishment by 38 states
and the federal government, comprising 1.8% of the total confirmed executions
in the United States since 1608 (McCord, Widom, & Crowell, 2001; Streib,
2002). A juvenile justice system separate from the adult criminal justice system
was established in the United States in Cook County, Illinois, in 1899. The goal,
envisioned by Jane Addams, was to divert young offenders from the destructive
punishments of criminal courts and encourage rehabilitation based on the individual's
needs (Streib, 2002). This effort recognized that children are different
than adults in terms of cognitive development, impulse and emotional control,
and judgment capability. The first juvenile court led to a system that held juveniles
accountable for delinquent behavior while providing developmentally
appropriate rehabilitation and deterrence programs.
After 1970, however, a shift toward more stringent punishment of juvenile
offenders occurred. Of the 362 juvenile executions in the United States, 18 have
occurred in the "modern death penalty era," from 1973 to 2001, comprising
2.4% of the 749 total executions during this period (Streib, 2002). Politically
popular federal and local measures implemented in the adult criminal justice system,
such as the three strikes and sexual predator laws, abolishment of parole, and
imposition of mandatory prison sentences, have increasingly been considered for
the juvenile system. In addition, in the past decade, a greater percentage of juvenile
offenders have been transferred to criminal court jurisdiction. For instance,
between 1992 and 1999, 49 states and the District of Columbia passed laws making
it easier for juveniles to be tried as adults through statutory exclusion, mandatory
waiver, direct file by prosecutors, or presumptive waiver legislation. In 1999,
at age 11, Michigan's Nathaniel Abraham was charged with murder. He became
the youngest child in American history to be prosecuted as an adult. The movement
toward trying juvenile cases in adult criminal court has occurred despite the
number of juvenile arrests declining in every violent crime category from 1993 to
1999. During this period, the juvenile population grew by 8% (Tuell, 2002).
The United States leads the world in state-sanctioned juvenile executions.
This indicates a shift away from the historical purposes of the separate juvenile
justice system. Focusing primarily on the seriousness of the crime, without meaningful
examination of the juvenile's age as a mitigating factor, is contrary to the
research-supported understanding that adolescence is a transitional period, when
cognitive abilities, emotions, judgment, impulse control, identity, and the brain
are still developing, and are developing in the context of families, kinship systems,
and communities.
Current Trends and Research
Arguments Supporting and Opposing Capital Punishment for Juvenile Offenders
Since the beginning of the modern American death penalty era in 1973, the reemergence
of capital punishment for people who commit crimes while younger
than 18 years of age has derived from two trends: (1) the increase in juvenile
waiver or transfer statutes to criminal court jurisdiction, and (2) the expansion of
capital punishment in the adult criminal justice system. Proponents of the death
penalty for people who commit crimes while younger than 18 make the following
claims:
- The rate of violent juvenile crime is higher in the United States than in other developed countries.
- Until the 1990s, juvenile homicide was escalating, whereas adult homicide was declining.
- Juvenile capital offenders appear, through media portrayal, to lack a conscience and to be incapable of responding to rehabilitation efforts.
- Political leaders often advocate for more severe punishments for juvenile offenders, which can be popular with their electorate.
- The public can see an immediate retributive result when a death penalty sentence is given to a juvenile offender, whereas improving social conditions that generate youth crime is an expensive, lengthy process that proceeds by trial and error.
A nationwide poll, however, found that only 26% of Americans who otherwise
believe in capital punishment support executing people who were juveniles
at the times of their offenses (Brewer, 2001).
Opponents of the death penalty for juveniles have developed responses that
counter these arguments:
- Almost all juvenile offenders have experienced severe physical and/or emotional abuse and trauma; these minors deserve an opportunity to contribute as productive members of society through professional treatment and counseling interventions.
- Homicides committed by youth declined 74% from 1994 to 2000.
- The deterrent purpose that capital punishment purportedly serves does not effectively apply to juvenile offenders, who generally have a skewed perception of death and perceive themselves as immortal.
- The retributive purpose of the death penalty should be critically questioned when the offender committed a crime as a minor, while supposedly under society's protection.
- Applying the death penalty to juvenile crimes is a solution with limited efficacy. A more effective, preventive, and large-scale solution must be derived by concentrating resources and building partnerships to strengthen the family, school, and community resources available to every youth.
Advocates for the abolishment of the juvenile death penalty point to several additional
factors as indicators of an imminent ban on the juvenile death penalty in
the United States. These include:
- The recent moratorium on the death penalty by some U.S. governors while commissions re-examine the capital punishment system,
- The declining death sentencing rates for juveniles,
- Increased state legislative interest in banning the death penalty for crimes committed when the offenders were younger than 18 years old, and
- The continuing international pressure for the United States to conform to international law.
No discussion of this issue is complete without recognition of the significant
scientific advances in the study of early brain development and childhood and
adolescent behavioral development that have been made over the past 20 years.
Research now confirms that from the time of conception to the first day of
kindergarten, development proceeds at a pace exceeding that of any subsequent
stage of life. This research has revealed the myriad and remarkable accomplishments of youth in the early childhood period, as well as the serious problems that
confront some young children and their families long before school entry.
Specifically, from birth to age 5, children rapidly develop foundational capabilities
on which subsequent adolescent development builds. In addition to remarkable
linguistic and cognitive gains, children exhibit dramatic progress in their
emotional, social, regulatory, and moral capacities (National Research Council,
2000). This early development can be seriously compromised by many factors,
such as poor nutrition, drug exposure, environmental toxin exposure, and chronic
stress stemming from abuse or neglect. In fact, young children are capable of
deep and lasting sadness, grief, and disorganization in response to trauma, loss,
and early personal rejection. These factors affect how a young child subsequently
interacts with the environment. What occurs during a child's early years matters
more significantly than was previously understood not because this period of
development provides an indelible blueprint for adult well-being, but because it
sets either a sturdy or fragile stage for adolescence and adulthood. The actual
course of development can be altered in early childhood by effective interventions
that change the balance between risk and protection, thereby shifting the odds in
favor of more adaptive outcomes (National Research Council, 2000).
This research has important implications in considering the death penalty
for offenders whose crimes were committed before age 18. It establishes and reaffirms
the notion that a person younger than 18 is still experiencing a significant
level of physiological and emotional development that affects his or her cognitive
abilities, emotions, judgment, impulse control, identity. This immaturity is the
reason that Americans do not allow people younger than 18 to assume the major
responsibilities of adulthood such as voting, serving in military combat, drinking
alcohol, or sitting on a jury. It also establishes that a significant number of variables
affect a youth's development and subsequent responses to social and environmental
stimuli that were beyond the control of that youth. When noted criminologist
Dorothy Lewis examined this premise in a study of medical histories of
violent juvenile offenders, she found a significantly higher incidence of neuropsychiatric
and cognitive impairments among the most aggressive offenders,
including hyperactivity, impulsivity, attention deficits, and learning disabilities.
The parts of the brain responsible for judgment, impulse control, and reality testing are disproportionately impaired in this population, along with the capacity for
empathy and the ability to accurately interpret other people's actions and intentions
(Karr-Morse & Wiley, 1997). Without positive interventions to redirect the
youth's development, an absence common to so many of the youth who subsequently
become involved in serious delinquent or criminal activity, these youth
are inappropriately subjected to the ultimate sanction without adequate regard for
these mitigating circumstances.
Demographics of Juvenile Capital Offenders in the United States
As of August 2002, 80 of the current death row inmates in the United States were
sentenced as adults for crimes committed while they were younger than 18 (Focus
on Capital Punishment, 2002). These inmates are males who were convicted of
murder. They constitute approximately 2.2% of the total death row population
in the United States. More than two-thirds of these offenders are minorities,
exemplifying the stark racial disparity in our juvenile justice system (Drizin &
Harper, 2000). The inmates have been on death row for between 2 months and
more than 22 years (Streib, 2002).
Although the federal government, 27 states, and the District of Columbia
bar the execution of offenders who commit crimes as juveniles, 23 states permit
capital punishment for juveniles. More than half the executions of juvenile
offenders since 1973 have occurred in Texas, Florida, and Alabama (Cothern,
2000). Texas is currently holding 28 juvenile offenders sentenced to capital punishment
(Focus on Capital Punishment, 2002).
Between 1973 and 2001, courts imposed 213 juvenile death sentences,
which is less than 3% of the 6,900 capital punishment sentences imposed in the
United States during this era. An estimated two-thirds of the juvenile death sentences
since 1973 have been imposed on 17-year-olds. One-third have been
imposed on 15- and 16-year-olds (Cothern, 2000). There have been 209 juvenile
death sentence cases involving males and 4 cases involving female offenders.
Although 81 of these sentences are currently being litigated, 132 sentences have
been finalized, with 18 (14%) resulting in execution and 114 (86%) being
reversed or commuted to life imprisonment (Streib, 2002).
The annual death sentencing rate in the United States for juvenile offenders
has been declining. In 1994, the courts imposed a peak of 17 juvenile death sentences
(5.3% of all U.S. death sentences in 1994), whereas they imposed only 6
in 2000 (2.0% of all U.S. death sentences in 2000) (Streib, 2000). In addition,
the increase in juvenile death penalty cases since 1973 has been slower than the
rise in adult death penalty cases (Streib, 2000). Despite the notorious U.S. media
coverage of violent juvenile crime in 1990s, only 1/3 of 1% of juveniles aged 10
to 17 were arrested for a violent crime in 1999 (Tuell, 2002).
Few researchers have characterized the nation's juvenile capital offender population
beyond basic demographics. In Gregg v. Georgia (1976), the U.S. Supreme
Court mandated that courts must examine mitigating circumstances when issuing
the death penalty. However, most juvenile capital offenders are represented by
appointed counsel without the time or resources to sufficiently investigate such
mitigating factors as psychiatric history, abuse, or mental capacity. A study of 14
juvenile offenders on death row found that only 2 had I.Q. scores higher than 90,
all had incurred significant mental trauma during childhood and had serious psychiatric
problems, and 12 suffered extreme physical and/or sexual abuse as children
(Templeton, 2000). Only five of these death row inmates, however, received
psychological evaluations before standing trial.
State Legislation
Since 1992, 49 states have passed or amended legislation making it easier to prosecute
juveniles as adults (Cothern, 2000). Several factors induced this "get tough"
response. In the late 1980s and early 1990s, the United States experienced a significant
increase in the number of juvenile capital offenders charged with murder.
Adult gang leaders and drug dealers used youth to distribute crack cocaine in
inner cities. The media and many politicians adopted the term super-predators,
coined by academics to describe "morally bankrupt" juvenile offenders. The widespread
media attention to specific tragic incidents of violent youth crime masked
the decrease in violent juvenile crime after 1993.
By the late 1990s, U.S. public opinion appeared to have shifted in relation
to punishment for juvenile capital crimes. Many states introduced legislation to
end the juvenile death penalty between 1999 and 2002, including Arkansas,
Indiana, Kentucky, Pennsylvania, Mississippi, South Carolina, South Dakota,
and Texas. Montana passed such legislation (Cothern, 2000). Lawmakers rejected
bills aimed at lowering the minimum age for receiving the death penalty to 16
or 17 in several states, including California. States can raise the minimum age for
death penalty sentencing to 18 by adding legislative amendments to their death
penalty statutes. There are 23 state death penalty statutes that specifically cite
juvenile offenders' ages as a mitigating factor when determining sentencing.
Some states, using their state constitution as mandating authority, have
imposed a higher minimum age for capital punishment than is designated by the
federal constitution. The federal government (including both civil and military
law) and 38 states authorize the death penalty for capital crimes, primarily for certain
forms of murder. Out of these 40 jurisdictions, 17 have set the age of 18 at
the time a crime is committed as the minimum age for death penalty eligibility,
5 states have chosen the age of 17 as the minimum, and 18 have chosen 16 as the
minimum age, either through an express designation in their death penalty
statute (7 states) or through a court decision (12 states) (Streib, 2002). Currently,
13 U.S. jurisdictions prohibit the death penalty.
The Case of Alexander Williams
The state of Georgia was scheduled to execute Alexander Williams on August 24,
2000. Williams was 17 years old at the time of his crime, the rape and murder of
a 16-year-old girl. His court-appointed attorney did not request a psychiatric
evaluation of his client, who was subsequently diagnosed with paranoid schizophrenia
and a schizoaffective disorder with bipolar features and hallucinations.
Furthermore, Williams' lawyer did not interview Williams' family or school officials;
did not, per Eddings v. Oklahoma (1982), present an argument that
Williams' age should be a mitigating factor in his sentencing; and did not present
any compelling evidence of the chronic childhood abuse that Williams endured.
These abuses included being hit with barbells and being locked outside the house
without clothing on. After pleas for clemency from a variety of sources, including
the United Nations Commission on Human Rights, the European Union, the
American Bar Association, and CWLA, the Georgia Board of Pardons and Paroles
granted Alexander Williams clemency on February 25, 2002. The board members
stated that Williams' mental illness, his age at the time of the crime, and his history of abuse were the primary factors inducing them to commute his sentence
to life without parole. Although it is encouraging that the board took this action,
it is of grave concern that the case progressed to this stage in view of the compelling
evidence concerning Alexander Williams' childhood history and current
mental health condition. Unfortunately, too many cases with similar characteristics
have occurred that have not resulted in the commutation of the death penalty.
U.S. Supreme Court Decisions
The primary standard for interpreting the constitutionality of death penalty cases
in the United States is the cruel and unusual punishment clause in the 8th
Amendment to the Constitution. A series of U.S. Supreme Court decisions have
provided guidance for state appellate courts when deciding whether and how to
apply capital punishment to juvenile cases. The Supreme Court decided its first
juvenile case, Kent v. United States, in 1966. In this case, the Court limited the
waiver discretion of state juvenile courts, due to the inconsistent application of
waiver decisions across states. Kent held that juveniles involved in a waiver decision
were entitled to a hearing, representation by counsel, access to the information
on which the waiver decision was based, and a statement justifying the decision
to transfer the case to adult criminal court. In 1967, the Court decided
Furman v. Georgia (1972) and held that the death penalty, as imposed under
existing law, was arbitrarily applied based on the discretion accorded to sentencing
authorities in capital trials, in violation of the 8th (cruel and unusual punishment
clause) and 14th (due process clause) Amendments.
By 1975, the modern era of the death penalty was begun, when 33 states
introduced revised death penalty statutes (Cothern, 2000). In Gregg v. Georgia
(1976), the Court found that the death penalty did not violate the 8th
Amendment per se. Thus, Gregg allowed states to establish the death penalty, so
long as state guidelines eliminated arbitrariness in capital sentencing. Eddings v.
Oklahoma (1982) was the first case in which the Court granted certiorari based
on the defendant's age when committing a capital crime. The Eddings decision
held that the chronological age of a juvenile is a relevant mitigating factor that
courts must consider when sentencing the defendant. The mitigating factor of
youth may be overcome by other factors, resulting in the application of the death
penalty. Eddings left state courts struggling to balance justice and childhood.
In the 1980s, the Court further delineated the application of capital punishment
to juveniles by deciding Thompson v. Oklahoma (1988) and Stanford v.
Kentucky (1989). In Thompson, the Court held that the 8th Amendment prohibits
the execution of offenders aged 15 or younger at the time they commit
their crimes, regardless of state statutory provisions. In Stanford, the Court decided
that the 8th Amendment does not bar states from sentencing people who were
16 or older when they committed their crimes to death. The Court found that
capital punishment of 16- or 17-year-old juveniles did not offend contemporary
standards of decency.
In June 2002, the Supreme Court handed down a decision on a tangentially
related case, Atkins v. Virginia. In Atkins, the Court held that the 8th
Amendment prohibits the execution of mentally retarded criminals as cruel and
unusual punishment. Juvenile offenders may be affected by the Atkins ruling in
the future, if the Court decides to overrule Stanford and finds that juveniles, analogous
to the mentally retarded, are a population that require special legal protection
due to contemporary standards of decency. As a result of Atkins, the Missouri
Supreme Court temporarily stayed the June 5, 2002, execution of juvenile
offender Christopher Simmons.
Justice Stevens, writing the majority opinion for Atkins, noted that although
mentally retarded people frequently understand the difference between right and
wrong and are competent to stand trial, because of their intellectual impairments
they maintain a decreased capacity to process information, to communicate, to
learn from mistakes, to logically reason, to control impulses, and to understand
others' reactions. Many of these characteristics can frequently be attributed to
youth. Juvenile offenders, similar to mentally retarded offenders, therefore,
should not be exempt from criminal sanctions, but rather should be punished
accorded to their diminished personal culpability. Justice Stevens cited Gregg v.
Georgia (1976) as identifying the social and penological purposes served by the
death penalty: retribution and deterrence of capital crimes. The Court found that
the application of the death penalty as a form of retribution in light of the
decreased culpability of mentally retarded offenders is inappropriate. Similarly,
the death penalty may not be an appropriate form of retribution given the diminished culpability of juvenile offenders. The Atkins Court noted that the deterrence
interest in capital punishment is only served when a crime is the result of
premeditation and deliberation. Not all juvenile offenders apply this type of forethought
and planning to their crimes. The Court also observed that mentally
retarded offenders, due to their limitations, may face an increased risk of false
confession, may be less able to provide meaningful assistance to their counsel, and
are often poor witnesses. Juvenile offenders may face similar challenges, compared
with the adult criminal population, which could make the Court militate toward
banning the death penalty as applied to juvenile crimes.
International Law on Juvenile Justice and the Death Penalty
America's legal sanctioning of capital sentencing for juveniles age 16 and older
violates the two main tenets of international law: international treaties and customary
international law. There is an international consensus against applying the
death penalty for juvenile capital crimes. Defying such a consensus prevents
America from being seen as a leader in implementing human rights standards.
The application of the death penalty to juvenile offenders is directly prohibited
by multilateral international treaties such as the International Covenant on
Civil and Political Rights (ICCPR), the United Nations (UN) Convention on the
Rights of the Child, and the American Convention on Human Rights. Although
the United States signed and ratified ICCPR, it reserved its right to ignore the
covenant's ban on executing juveniles. The United States is the only country of
the 144 signatories with such a reservation. Eleven countries objected to the
United States' reservation. In 1995, the UN Human Rights Committee, which
monitors members' compliance with ICCPR, formally requested that the United
States withdraw its reservation, but the United States declined. In 1998, the UN
Special Rapporteur on extrajudicial, summary, and arbitrary executions requested
that the United States withdraw its reservation, but it again declined to do so.
Many countries view the U.S. reservation as a significant international human
rights violation.
Of 154 UN member countries, only America and Somalia have not yet ratified
the UN Convention on the Rights of the Child. The convention provides
that neither capital punishment nor life imprisonment without possibility of
release should be imposed on people who committed crimes while younger than
18. The United States signed the convention in 1995 with a renewed reservation
exempting itself from adherence to the juvenile death penalty ban.
In August 2000, the UN Sub-Commission on the Promotion and Protection
of Human Rights reiterated that the execution of juveniles violates customary
international law. For a practice to become part of customary international law, it
must be widespread, and nation-states must follow the practice out of legal obligation.
The only countries that still execute minors are Iran, the Democratic
Republic of Congo, and the United States. China, Yemen, and Pakistan recently
abolished the use of capital punishment for juveniles. Other countries are increasingly
exerting diplomatic and economic pressure on the United States to ban the
death penalty for people who committed capital offenses while they were younger
than 18 years old.
An internationally accepted minimum age of 18 for imposition of the death
penalty was established in 1949. Article 68 of the Fourth Geneva Convention
Relative to the Protection of Civilian Persons in Time of War states that a protected
person who was younger than 18 years old at the time of their offense
cannot receive the death penalty. The United States ratified this convention in
1955 and did not make a reservation to the convention's juvenile death penalty
clause. Thus, for more than half a century, America has agreed not to apply the
death penalty to any civilian juvenile offenders in occupied territories in a time of
war. Yet it refuses to provide the same protection to youth on its own territory
during peacetime.
Alternatives to the Death Penalty for Juveniles
The development of effective sentencing and programming opportunities for
juvenile capital offenders is challenging due to a lack of knowledge about this
small population. Researchers need to devote greater resources to assessment of
the population of juvenile capital offenders. With such information, correctional
facilities could more appropriately focus their funding on effective, multifaceted
rehabilitation programs while still affording maximum protection to society.
Nationally standardized sentencing guidelines are also needed. Juvenile capital
offenders are subject to a variety of sentencing options, contingent on state
statutory provisions, the regional and national political climate, and the caliber of
the offender's attorney. Some juvenile capital offenders are allowed to have their
cases heard in juvenile court, whereas other cases are transferred to adult criminal
court, where the death penalty is more likely to be applied. The American Bar
Association (1983) advocates for states to include the condition in their juvenile
waiver statutes that transferred offenders may not receive capital punishment in
criminal court.
Promising program options need to be thoroughly evaluated and brought to
scale. For example, Texas' Capital Offender Program, established in 1988, sponsors
an intensive, 16-week empathy-training curriculum that assists juvenile capital
offenders with rehabilitation through role-playing in small groups. The program
specifically targets the juveniles' emotional detachment and inability to
accept responsibility for their crimes. Both external qualitative evaluation and an
internal survey of the youth participants found the program to be effective.
However, empathy training may only work for juvenile capital offenders with certain
characteristics. In addition, a quantitative study would yield more information
about the long-term effectiveness of the program. Additional program
options should include behavioral health (mental health and substance abuse)
assistance, educational and vocational training, and employment and other social
skill building exercises. A range of program interventions exist that have demonstrated
promising outcomes that should be applied to this population of offenders.
Most important, a national focus on prevention and early intervention is the
most effective alternative to the death penalty in deterring violent youth crime.
Promising measures include research-based early intervention programs for children
at risk of abuse, long-term tutoring and mentoring programs, nurse home
visitation programs, and effectively implemented, comprehensive, graduated
sanctions. This focus must be coordinated and integrated across all youth-serving
systems, with emphasis on the child welfare and juvenile justice systems, because
the highest risk youth often come from these systems. The resources invested in
effective preventive measures have demonstrated results in cost-effectiveness.
Summary and Position
The practice of executing juvenile offenders has disturbing implications for our
society's vision of morality, notions of crime and punishment, conformance to
international law, and understanding of childhood and adolescent development.
Our society has historically accepted responsibility for the moral, emotional,
intellectual, and physical development of our youth. Although CWLA readily
supports holding juveniles responsible for committing capital crimes, their behavior
must also be examined in the context of failed family, school, and community
support structures. This is particularly true in light of a research-based understanding
of child and adolescent development. Drizin and Harper (2000) asserted
that teenagers who commit capital crimes often suffer from serious psychological
and family disturbances. It is precisely these circumstances that mitigate
against normal adolescent development.
Executing juvenile offenders does not logically comport with our society's
traditional justifications for applying the death penalty. Retribution through capital
punishment is incongruent with the view that minors are unable to assume a
full measure of accountability for their actions and are therefore prohibited from
certain privileges of adult status, such as entering into legally binding contracts.
In addition, little research supports the assertion that fear of the death penalty
effectively deters youth from committing violent crime. In fact, most available
research contradicts the deterrent effect of capital punishment. Finally, it costs
society more to execute a person than to imprison them for life, a fact that is significantly
attributable to the elaborate appeals process that capital cases entail,
particularly for youth. On average, it costs approximately $2.5 million to prosecute,
maintain on death row, and execute a single individual (On the Wrong Side,
1998).
The most promising legal argument for states to use in prohibiting the juvenile
death penalty is that such a sentence violates the state's constitutional provisions
and international law. In fact, given the Supreme Court's recent decision in
Atkins v. Virginia, the Court may revisit the constitutionality of applying the
death penalty for any juvenile capital offenses. The Court may examine state legislatures'
trend in banning the death penalty for people younger than 18 at the
time of commission of the offense, juries' decreasing use of the death penalty as
a sentence for juveniles, international law proscribing the death penalty for juvenile
crime, and public opinion polls supporting such a prohibition. Banning the
death penalty for people who committed capital crimes when less than 18 years
old would reaffirm the rehabilitative purpose of the juvenile justice system while
allowing the nation's leadership to assume a position in the realm of international
human rights.
It is CWLA's position that abolishing the death penalty applied to minors
would recognize the research that children are developmentally different from
adults, and thus are more amenable to treatment and rehabilitation. The Juvenile
Justice Division believes that it is inhumane to impose the ultimate sanction, the
deliberate taking of a human life, on a population of offenders who are still developing
emotionally and mentally. CWLA's Juvenile Justice Division challenges
everyone to actively engage in the effort to ban the death penalty for capital
offenders who committed crimes when they were younger than 18 years old.
- American Bar Association. (1983, August). Report of the Section of Criminal Justice: ABA policy on the juvenile death penalty. Available from http://www.abanet.org/crimjust/juvjust/jdppolicy.html
- Atkins v. Virginia, 008452 (2002).
- Brewer, S. (2001, February 6). Juvenile cases: Just 1 in 4 in county think death appropriate. Houston Chronicle, A8-9.
- Cothern, L. (2000, November). Juveniles and the death penalty.Washington, DC:
- U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.
- Drizin, S. A., & Harper, S. K. (2000, April 16). Old enough to kill, old enough to die. San Francisco Chronicle, A24.
- Eddings v. Oklahoma, 455 U.S. 104 (1982).
- Focus on capital punishment. (2002). Washington, DC: American University,
- Washington College of Law. Available from http://www.wcl.american.edu/humright/deathpenalty/juvstat.html
- Furman v. Georgia, 408 U.S. 238 (1972).
- Gregg v. Georgia, 428 U.S. 153 (1976).
- Karr-Morse, R., & Wiley, M. S. (1997). Ghosts from the nursery: Tracing the roots of violence. New York: Atlantic Monthly Press.
- Kent v. United States, 383 U.S. 541 (1966).
- McCord, W., Widom, C. S., & Crowell, N. A. (Eds.). (2001). Juvenile crime, juvenile justice. Washington, DC: National Academy Press, National Research Council and Institute of Medicine Panel on Juvenile Crime: Prevention, Treatment and Control: Committee on Law and Justice and Board of Children, Youth, and Families.
- National Research Council and Institute of Medicine. (2000). Nurturing relationships. In J. P. Shonkoff & D. A. Phillips (Eds.), From neurons to neighborhoods: The science of early childhood development (pp. 231-235). Washington, DC: National Academy Press.
- On the wrong side of history: Children and the death penalty in the U.S.A. (1998, November). New York: Amnesty International.
- Stanford v. Kentucky, 492 U.S. 361 (1989).
- Streib, V. L. (2002). The juvenile death penalty today: Death sentences and executions for juvenile crimes, January 1, 1973-June 30, 2002. Retrieved August 14, 2002, from http://www.law.onu.edu/faculty/streib/juvdeath.htm
- Templeton, E. (2000, September). Killing kids: The impact of Domingues v. Nevada on the juvenile death penalty as a violation of international law. Boston College Law Review, 41, 1175-1216.
- Thompson v. Oklahoma, 487 U.S. 815 (1988).
- Tuell, J. (2002). Child maltreatment and juvenile delinquency: Raising the level of awareness. Washington, DC: Child Welfare League of America.
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