can juveniles get the death penalty?

Offenders under the age of 18 are exempt from the death penalty.

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.

Evaluating a Juvenile’s Culpability in Capital Cases Issues in the Gary Graham Case Related to the Death Penalty for Juveniles Related Links

In a 2005 decision called Roper v. Simmons, the Supreme Court of the United States ruled that the execution of people who were under 18 at the time of their crimes violates the federal constitutional guarantee against cruel and unusual punishments. The Roper opinion drew upon a 2002 decision by the Court holding that the execution of persons with mental retardation is unconstitutional: in both decisions, the Court reasoned that these special groups of offenders are less culpable than adult offenders with no intellectual impairment who committed the same crimes. The Court also examined the number of state legislatures that did and did not authorize the punishment of death for persons under 18; it found that a substantial number of death-penalty states had recently acted to exempt juveniles from capital punishment, and it viewed this movement as evidence of an “emerging national consensus” against the execution of juvenile offenders. As a result of the Roper decision, 72 individuals on death row were re-sentenced. Prior to the ruling, 22 inmates were executed in the modern death penalty era for crimes committed before they reached 18.

The constitutionality of executing persons for crimes committed when they were under the age of 18 is an issue that the Supreme Court has evaluated in several cases since the death penalty was reinstated in 1976. In Thompson v. Oklahoma (1988), the Court recognized that the age of the offender was an important consideration when trying to determine how the individual should be punished. The Court endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult:

”Their inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.“

However, in Stanford v. Kentucky (1989), the United States Supreme Court held that the Eighth Amendment does not prohibit the death penalty for crimes committed at ages 16 or 17. In Atkins v. Virginia (2002), the Supreme Court considered whether the special characteristics of individuals with mental retardation requires that they be categorically exempted from the death penalty as a matter of federal constitutional law. In holding that the execution of a mentally retarded persons is a constitutionally forbidden Cruel and Punusual Punishment, the Court asserted that “because of their disabilities in areas of reasoning, judgment, and control of their impulses, they do not act with a level of moral culpability that characterizes the more serious adult criminal conduct.” The standard put forth in Atkins was not lack of legal responsibility—for individuals with mental retardation often know the difference between right and wrong—but of diminished criminal culpability. Because of their mental impairments, they “have a diminished capacity to understand and process information, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.... Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their criminal culpability.”

Victim’s rights advocates protested a further narrowing of the number of individuals who were eligible for the death penalty. A number of attorneys general in states that allowed the execution of juvenile defendants and the Texas-based Justice for All organization submitted amicus briefs in the Roper case requesting that the Supreme Court uphold Stanford. In addition, they argued that the Court should not group juveniles together as a class of defendants, but instead “acknowledge that they are all different with respect to their experience, maturity, intelligence and moral culpability.”

By a vote of 5-4, the U.S. Supreme Court held in Roper v. Simmons (2005) that the Eighth Amendment forbids the execution of offenders who were under the age of 18 when their crimes were committed. In making its decision, the Court considered both the national consensus that existed against the practice and testimony of professional medical and psychological organizations citing new evidence of delayed brain maturation that impacts culpability determinations for juveniles.

The Court’s ruling in Roper v. Simmons affected 72 juvenile offenders in 12 states.

The case of Gary Graham highlights the issue that juvenile capital defendants faced prior to the Roper decision.

Gary Graham was convicted of a murder committed when he was 17 years old. Under Texas law, he was eligible for the death penalty, although in many other states he would not have been. Texas law did allow his age to be offered as a reason for the jury to believe that, in the future, Graham would not be a danger to the community and therefore should be given a life sentence. Graham argued in his appeals that some jurors might instead believe that his age would actually make it more likely that he would commit further crimes and hence it served as an “aggravating factor” contributing to the likelihood of a death sentence. Under Texas law, a finding of future dangerousness by the jury typically resulted in a death sentence. Graham was executed in 2000, five years before the U.S. Supreme Court prohibited the execution of juvenile defendants.

Despite the fact that Texas’ death penalty law lacked the formal consideration of aggravating and mitigating factors found in most other state laws, its statute was upheld by the Supreme Court in 1976 (Jurek v. Texas). In a later opinion, however, the Court held that states could not restrict the defense from putting on any relevant mitigating evidence (Lockett v. Ohio), and that the sentencer must consider such evidence in choosing between a life and death sentence (Eddings v. Oklahoma).

These decisions led to a partial striking down of Texas’s capital punishment statute in 1989. The Supreme Court held that the question of whether a defendant would be a “future danger” to the community did not adequately allow for consideration of the defendant’s mental retardation as a possible mitigating factor. (Penry v. Lynaugh). Some jurors might believe that a defendant like Johnny Penry with a low IQ might be more likely to commit future crimes, perhaps because he could not learn from his mistakes or be deterred by the law. That ruling forced Texas to change the way juries were instructed in death penalty cases. Juries needed to understand that a person’s mental retardation should at least be considered as reason for giving him a life sentence.

Gary Graham’s lawyers believed that the same reasoning should apply to a defendant’s youth. They took their case all the way to the Supreme Court, but were told that the ruling in Penry did not apply to Graham because it was not retroactive, i.e., it would only apply to future cases. (Graham v. Collins). In a later ruling, the Court held that even in a case where Penry did apply, a defendant’s youth is not the same as a defendant’s mental retardation. Texas’ law did not have to change to give special consideration to the age of the defendant. (Johnson v. Texas). Ultimately, the Court struck down the death penalty for both juveniles and the mentally retarded. (Roper v. Simmons; Atkins v. Virginia).

Questions for Further Analysis:

Capital punishment for juveniles in the United States existed until March 2, 2005, when the U.S. Supreme Court ruled it unconstitutional in Roper v. Simmons. Prior to Roper, there were 71 people on death row in the United States for crimes committed as juveniles.[1]

Since 1642, in the Thirteen Colonies, the United States under the Articles of Confederation, and the United States under the Constitution, an estimated 364 juveniles have been put to death by the individual states (colonies, before 1776) and the federal government.

The youngest person to be executed in the 20th century was Joe Persons, a boy executed in Georgia in 1915 at the age of 14 for the rape of an 8-year-old girl that he committed when he was only 13.[2] The second youngest person to be executed was George Stinney, who was electrocuted in South Carolina at the age of 14 on June 16, 1944, after the bodies of two children (ages 7 and 11) were found close to his home. George Stinney maintained his innocence throughout his trial and subsequent execution. The verdict of this case was overturned posthumously. The third youngest person to be executed in the 20th century was Fortune Ferguson in 1927 for rape in Florida. The youngest person ever to be sentenced to death in the United States was James Arcene, a Native American, for his role in a robbery and murder committed when he was ten years old. He was, however, 23 years old when he was actually executed on June 18, 1885.[3] The last judicially-approved execution of a juvenile was convicted murderer Leonard Shockley, who died in a Maryland gas chamber on April 10, 1959, at the age of 17. No one has been under the age of 19 at the time of execution since at least 1964.[4][5]

Since the reinstatement of the death penalty in 1976[6] when the Supreme Court ruled that the death penalty did not violate the Eighth Amendment's prohibition against cruel and unusual punishment, 22 people have been executed for crimes committed while they were under the age of 18. All of the 22 executed individuals were males. Twenty-one of them were age 17 when the crime occurred; one, Sean Sellers (executed on February 4, 1999, in Oklahoma), was 16 years old when he murdered his mother, stepfather, and a store clerk. Due to the slow process of appeals since 1976, none were actually under the age of 18 at the time of execution.

In Thompson v. Oklahoma (1988), the Supreme Court first held unconstitutional imposition of the death penalty for crime committed aged 15 or younger. But in the 1989 case Stanford v. Kentucky, it upheld capital punishment for crimes committed aged 16 or 17. Justice Scalia's plurality part of his opinion famously criticized Justice Brennan's dissent by accusing it of "replac[ing] judges of the law with a committee of philosopher-kings".[7] Justice O'Connor was the key vote in both cases, being the lone justice to concur in the two.

Sixteen years later, Roper v. Simmons overruled Stanford. Justice Kennedy, who concurred with Scalia's opinion in Stanford, instead wrote the opinion of the court in Roper and became the key vote. Justice O'Connor dissented.

Before 2005, of the 38 U.S. states that allowed capital punishment:

At the time of the Roper v. Simmons decision, there were 71 juveniles awaiting execution on death row: 13 in Alabama; four in Arizona; three in Florida; two in Georgia; four in Louisiana; five in Mississippi; one in Nevada; four in North Carolina; two in Pennsylvania; three in South Carolina; 29 in Texas; and one in Virginia.[8]

Few juveniles have ever been executed for their crimes. Even when juveniles were sentenced to death, few executions were actually carried out. In the United States for example, youths under the age of 18 were executed at a rate of 20–27 per decade, or about 1.6–2.3% of all executions from 1880s to the 1920s. This has dropped significantly when only 3 juveniles were executed between January 1977 and November 1986.[6]

All juveniles executed since 1976 were male.