Informed Death Penalty Opinions

Those states still actively sentencing juveniles to death, opponents argue have isolated themselves from the growing national consensus. From 1973 to the present, three states – Texas, Virginia, and Oklahoma – have accounted for 81 percent of the national total for juvenile executions. In that same time, Texas alone has accounted for nearly two thirds of all such executions, outpacing every other U. S. jurisdiction and country in the world that still retains the juvenile death penalty.

The psychiatric and medical establishment has been especially vocal on the issue. Experts point to new scientific research on adolescent brain development confirming that adolescents are subject to greater “limitations in judgment and maturity” than adults. Due to frontal lobe underdevelopment, research says, adolescents may react impulsively, and may not understand the consequences of their actions, suggesting a lesser degree of culpability for their actions.

However, opponents are keenly aware that much uncertainty still surrounds the Simmons case. During the next several months, opponents and champions of the juvenile death penalty alike probably will rely on dueling interpretations of the same evidence to state their cases. Meanwhile, it also is unclear where the Justices will fall on the issue. “Just about everyone except [Justices] Scalia and Rehnquist are in play here,” said Professor Sarat. This situation could bode well for opponents.

Though only four votes are required to grant review by the United States Supreme Court, five are needed to overturn a previous decision. Juvenile death-penalty opponents, playing off the differences in Stanford’s five-four vote and Atkins’ six-three vote, are likely to pitch their arguments to the two likely swing votes, Justices Sandra Day O’Connor and Anthony Kennedy. For that reason, those Justices opposed to executing minors would need to bring only one vote to their side to prevail.

It will be worthwhile to present here the recent data relevant to the topic at hand. Executions done since 1930, figures representing starting 1976 and other pertinent data are presented below (Table 1:Source: United States Department of Justice, Capital Punishment 2001 at 13, appendix table 1 (2002)). The eighth amendment’s prohibition on cruel and unusual punishment is the foundation for the analysis of the death penalty; the U. S. Supreme Court has been tasked with the determination of what constitutes cruel and unusual punishment.

On three occasions, the U. S. Supreme Court has grappled with the constitutionality of the juvenile death penalty; two of these cases are described: Thompson v. Oklahoma and Stanford v. Kentucky, the latter of which found the death penalty constitutional for offenders of at least the age of 16. The plurality in Stanford were unwilling to look to international laws and jurisprudence in its decision making; the extent to which the Court will be willing to consider international opinion in future cases will greatly affect the future of the juvenile death penalty in the United States.

Recent court cases, including a 2002 U. S. Supreme Court ruling prohibiting the death penalty for mentally retarded offenders (Atkins v. Virginia), suggest that the tide of opinion may be turning against the use of the death penalty for juveniles. As such it is time for the U. S. Supreme Court to reconsider its position in Stanford v. Kentucky by applying the analysis it adopted in Atkins. Since 1996, research studies showed that there has become a steady decline in American support for capital punishment.

More often, the difference in support for capital punishment is consistent to changes in the violent crime rate, specifically the homicide rate, and there is proof that this is happening today as authors of a recent study point out; though while the violent crime rate dropped radically between 1994 and 1996, there was no corresponding plunge in support for capital punishment Bohn & Vogel, 2004).

By 1996, capital punishment became very much accepted in the American culture to the extent that when debates started to arise against its use, those who rallied for this stand were taken by surprise and were not so prepared to defend its application, more so when there is a decrease in crime rates. Even legislators already started to question the practice when media took the arguments and many came in to wage this war. Add to the fact that with many technological advances in forensics like DNA testing and the like, there were still inconsistencies and blunders committed in the legal processes.

Despite these developments though, some lasting aspects remained the same such as revenge as a core motivation for support of capital punishment. In the Fall of 2004, the United States Supreme Court considered the constitutionality of the juvenile death penalty. Of concern is whether the juvenile death penalty infringes upon the provision of the eight amendment regarding the community conscience toward the death penalty for youthful offenders. Prior to that, in 2003, the Missouri Supreme Court had forbidden executions of persons younger than 18 because of 8th and 14th amendment violations.

The case was that there was a National consensus against the use of the death penalty for youthful offenders. In previous cases, the United States Supreme Court has confirmed capital juries as the most proper indicators of the community conscience. The investigation discloses that jurors were less likely to enforce the death penalty to defendants who are under age 18 at the time of the offense (17. 4 percent). On the other hand, 59. 6 percent of jurors would impose the death penalty on a defendant aged 19 or older.

The analysis also illustrated that jurors think in another way about juvenile and adult defendants in terms of family background traits and social adjustment, with jurors more willing to make exceptions for juvenile defendants. Usually (66. 7 percent) the jurors expressed pity or sympathy for these youthful offenders as compared to that of adult defendants. Defendant’s home environment and young age are the common reasons why jurors refused to impose capital punishment. If the jurors perceived the defendant as older, generally the death penalty will be imposed (Antonio et al, 2004).

A similar amicus brief, this one from the American Psychological Association and its Missouri affiliate, informs the court that "late adolescents are less likely to consider alternative courses of action, understand the perspective of others, and restrain impulses," since their "brain has not reached adult maturity, particularly in the frontal lobes. " Tossing off references to "longitudinal MRI studies" and "cognitive neurology," the brief asserts that "16- and 17-year-olds as a group are less mature developmentally than adults.

" Well, stop the presses. The problem here is that what is relevant isn't exactly new — what parent doesn't know that adolescents don't always restrain their impulses? — and what is new may not be legally relevant. The work of UCLA neurologist Elizabeth Sowell is prominently cited in both of these briefs, yet Sowell herself warns against using neuroscience to promote a legal agenda. "The scientific data aren't ready to be used by the judicial system," she told Science News in April.

"The hardest thing is to bring brain research into real-life contexts. " Skeptical, too, is Harvard psychologist Jerome Kagan, the former director of the Mind/Brain Behavior Interfaculty Initiative. "The brain data don't show that adolescents typically have reduced legal culpability for crimes," he says. Clearly teens "can control their impulses without having fully developed frontal lobes" — otherwise "we should be having Columbine incidents every week. "  But we don't have Columbine incidents every week.

The vast majority of 17-year-olds, like the vast majority of people at every age, don't commit violent crimes — least of all the very worst violent crimes: the especially depraved homicides that the law calls capital murder. Adolescents who have not yet turned 18 may not always act wisely, but rarely do they turn to murder. Should those who do be regarded primarily as heedless kids — or as determined killers? Consider Christopher Simmons, the defendant in the case before the Supreme Court.

In September 1993, Simmons discussed with friends the crime he intended to commit: a victim would be robbed, then tied up and pushed off a bridge. On Sept. 8, Shirley Crook became that victim. Simmons and two friends broke into her home at 2 a. m. , bound and gagged her with duct tape, then forced her into a minivan. Simmons drove the van to a railroad trestle spanning the Meramec River, where he found that she had managed to work some of the duct tape off. So he hog-tied her with electrical wire, then covered her face with even more duct tape. And then he threw into the river below.

Simmons's age wasn't ignored in his trial. It was offered as a mitigating circumstance, and the jury took it into account when deciding his punishment. That is what the Supreme Court should continue to permit every jury to do. There are times when a bright-line rule based on age makes sense. We don't let kids drive until they are 16, or buy tobacco before turning 18. When it comes to drivers' licenses and cigarettes, an arbitrary cut-off is both reasonable and efficient. But when someone has been brutally murdered and an accused killer is in the dock, reasonableness and efficiency are not the standards we use.

Guilt must be proven beyond a reasonable doubt. Jurors must weigh all the evidence. Criminal justice is done individually, particularly, with a focus not on how people act generally, but on how *this* person acted in *this* specific case. The law as it exists now does not condemn every 16- or 17-year-old murderer to death. It simply preserves capital punishment as one option for the jury. It allows society to say, in rare but appropriate cases, that a juvenile who plotted like an adult and murdered like an adult can be punished like an adult. That isn't cruel and unusual.


1. Antonio, Michael E. , et. al. (May-June 2004)  “Capital Jurors as the Litmus Test of     Community Conscience for the Juvenile Death Penalty. ” Judicature. 2. Bohm, Robert M. and Brenda L. Vogel. (July/August 2004) “More Than Ten Years     After: The Long-Term Stability of Informed Death Penalty Opinions. ” Journal of  Criminal Justice. 3. Kuffer, Dorene A. (2004) “Death Penalty for Juveniles: Has a National Consensus Been     Reached? A Look at the Modern Legal History of the Juvenile Death Penalty. ” Children's Legal Rights Journal.