Death Penalty for Minors
Table of contents:
- Early History of the Juvenile Death Penalty in United States
- Recent Case Law
- Supreme Court Overturns Most Death Penalty Laws
- Reliance on Atkins in Capital Punishment of Mentally Retarded Persons
- Most Recent Decisions
- 50 State Survey on Capital Punishment
The death penalty has been one of the most debated issues of our contemporary system of justice. Although the death penalty is generally tolerated under international law, the same cannot be said of the execution of juvenile offenders. The International Covenant on Civil and Political Rights requires that the death penalty be only imposed “for the most serious crimes,” and never upon those who were under 18 years of age at the time of their crime. Virtually all the countries of the world have signed or ratified this important treaty, including most recently, China. The United States, however, is the only country with an outstanding reservation to the Article forbidding the execution of juvenile offenders.
America has a long history of executing juveniles. The first instance of juvenile execution took place in Massachusetts in 1642, before United States’ formally became a sovereign nation in 1776. Since that time, a total of 281 youthful offenders were executed. As of August 1, 1987, there were thirty-two juvenile offenders on death row. However, only the three youngest of these prisoners may be affected by the Supreme Court’s recent decision in Thompson v. Okla., 487 U.S. 815 (U.S. 1988), holding state statutes that failed to set a minimum age at which the death penalty could be imposed to be violative of the eighth amendment. Finally in Roper v. Simmons, March 2005, the United States Supreme Court ruled that the death penalty for those who had committed their crimes at under18 years of age was cruel and unusual punishment and hence barred by the Constitution. On March 1, 2005, Roper v. Simmons, 543 U.S. 551 (U.S. 2005), the U.S. Supreme Court abolished the death penalty for minors. Prior to this ruling, minors were subject to the death penalty in a majority of states where the death penalty was practiced.
2. Early History of Juvenile Death Penalty in United States
United State’s history of capital punishment for juvenile offenders has its origins in English common law in which the death penalty for juveniles was common. In the fourteenth century England the minimum age of criminal culpability for homicide was set at age seven. A child below age seven who committed a felony went “free of judgment because he knoweth not of good and evil.” From this period through the eighteenth century, there was a rebuttable presumption that a child offender above the age of seven but below the age of fourteen could not form the criminal intent required for a sentence of death. There was no rebuttable presumption for offenders over age fourteen. The United States Supreme Court later accepted these views in, In re Gault, 387 U.S. 1, 16 (1967). The first juvenile execution in the pre United States period occurred in 1642 when a sixteen-year-old boy was executed in Plymouth Colony, Massachusetts. Between 1642 and 1973, 344 juveniles were executed in the United States, and at least thirty-nine of these offenders were between the ages of ten and fifteen at the time of their capital crimes. In the modern era of death-penalty jurisprudence, beginning with the landmark 1972 decision of Furman v. Georgia, twenty-two juvenile offenders have been executed. Thus, from 1642 through February 2005, at least 366 juveniles were executed out of about 20,000 confirmed executions in United States history.
The year of 1988 was extremely important in the history of United States in terms of death penalty for adolescent criminals. The Supreme Court in 1988 refused to impose the death penalty upon criminals who were below age sixteen. Thompson v. Okla., 487 U.S. 815 (U.S. 1988). Nevertheless the 1988 decision did not influence all states. For instance, in the state of Texas the last case where a juvenile was sentenced to death occurred in 2002.
In the 2005 decision of Roper v. Simmons, 543 U.S. 551 (U.S. 2005), the U.S. Supreme Court found that the execution of minors is a violation of the Constitution. That case saw a fight between two opposing groups-one that favored death penalty for juveniles because the capital crimes they commit are sometimes even worse than those committed by the grown criminals, and the other arguing that death penalty for juveniles is completely unconstitutional and absolutely immoral as they are only children and not mature grown ups able to be fully responsible for their actions. The U.S. Supreme Court decided it was unconstitutional to execute an individual for a crime committed under the age of 18.
The American Academy of Child and Adolescent Psychiatry, the American Society for Adolescent Psychiatry, and the American Psychiatric Association have pointed out certain facts to disfavor death penalty for children under the age of eighteen. These include:
- The prefrontal cortex situated in the frontal lobe of humans is the management center of the human brain. It is partly responsible for the functions such as-planning, anticipation of consequences, controlling impulses and is responsible for abstract thinking. Researches found that the prefrontal cortex is formed the last; after every other part of the body. This part of the brain is under evolution until a person is about twenty-years-old.
- The second vital piece of information is that the decision making process in adulthood is controlled by the amygdala, known as the most primitive part of the human brain and therefore the center of impulses and emotions. The amygdala performs a primary role in the processing and memory of emotional reactions. Therefore, the amygdala controls human behavior and emotions including creating fear in the mind of a person. This stage is developed only during adolescence. Transformation from the stage of childhood to adoscelence must be kept in the mind while deciding a case against children under the age of eighteen.
4. Recent Case Laws
- Supreme Court Overturns Most Death Penalty Laws
In the 1972 case of Furman v. Georgia, 408 U.S. 153 (1972), the Supreme Court issued a 5-4 decision effectively striking down most federal and state death penalty laws finding them “arbitrary and capricious.” The court held that the death penalty laws, as written, violated the “cruel and unusual punishment” provision of the Eighth Amendment and the due process guarantees of the Fourteenth Amendment.
As a result of Furman v. Georgia, more than 600 prisoners who had been sentenced to death between 1967 and 1972 had their death sentences lifted.
- Supreme Court on Capital Punishment for Mentally Retarded Persons
The Court outlined the similarities between its analysis of the constitutionality of executing juvenile offenders and the constitutionality of executing the mentally retarded. Prior to 2002, the Court had refused to categorically exempt mentally retarded persons from capital punishment. Penry v. Lynaugh, 492 U.S. 302 (1989). However, in Atkins v. Virginia, 536 U.S. 304 (2002), the Court held that standards of decency had evolved in the 13 years since Penry and that a national consensus had formed against such executions, demonstrating that the execution of the mentally retarded is cruel and unusual punishment. Before this historic ruling, the Court concluded in 1989 in Stanford v. Kentucky, 492 U.S. 361 (1989), that the execution of 16- and 17-year-old offenders was not constitutionally barred. The Court in Atkins concluded that since Stanford, a national consensus has formed against the execution of juvenile offenders, and the practice violated society’s “evolving standards of decency.” The Court overruled its decision in Stanford, thereby setting the minimum age for eligibility for the death penalty at 18. Therefore both, in Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v. Simmons, 542 U.S. 551 (2005), Supreme Court of United States, held death penalty to be a disproportionate punishment for crimes committed by the mentally retarded or juveniles, respectively. Previously, in Penry v. Lynaugh, 492 U.S. 302 (1989), the Court refused to find that two states’ prohibition on executing individuals suffering from mental illness constituted national consensus. In Atkins, however, after discussing the change in the legislative landscape since its earlier ruling, the Court opined that the growing number of states prohibiting execution of the mentally ill reflects a strong national consensus against authorizing the death penalty for such offenders. Likewise in Roper, 542 U.S. 551 (2005), the Court overruled its 1989 decision in Stanford v. Kentucky , U.S. 361 (1989), and found significant evidence of a national consensus against executing juveniles because thirty states prohibited the death penalty for juveniles, and in the states without a formal prohibition, the execution of juveniles was rare. Finally, in Kennedy v. Louisiana, 128 S. Ct. 2641 (U.S. 2008), the Supreme Court recently held that death is a disproportionate punishment for the crime of the rape of a child when the victim does not die.
- Most Recent Decisions
In 1999, for the first time in 40 years, a sixteen-year-old offender was executed in the United States. Sellers v. State, 1999 OK CR 6 (Okla. Crim. App. 1999). Sean Sellers was executed in Oklahoma on February 4, 1999. This was such a big issue is because Sellers had been diagnosed with multiple personality disorder. The Court of Appeals stated that Sellers might be factually innocent of the murders because of his illness, but innocence alone is not sufficient to grant federal relief. Sellers was the first and remains the only person executed for a crime committed under the age of 17 since the reinstatement of the death penalty in Furman v. Georgia, 408 U.S. 153 (1972). He was also the first person executed by the state of Oklahoma since 1966. The U.S. Supreme Court ruling inRoper v. Simmons, 542 U.S. 551 (2005) later decided it was unconstitutional to execute an individual for a crime committed under the age of 18.
5. 50 state survey on capital punishment
Below is a table showing the statutory minimum age for death penalty in all the 50 states –
|ALABAMA13A539,etseq.||Yes||No minimum age but age is a mitigating circumstance|
|ARIZONA13703||Yes, for 1st degree murder with mitigating factors||15|
|ARKANSAS54601, etseq.;551201||Yes, capital murder||16|
|CALIFORNIAPen. Code §§37; 190, et seq.;§§3604,et seq.; §§3700, et seq.||Yes, if crime is 1st degree murder with enumerated special circumstances||18|
|COLORADO 83101, etseq; 183301, etseq; 181.31201 et seq.||Yes for Class 1 felonies||18|
|CONNECTICUT 53a46a; 53a54b; 54100, etseq.||Yes, capital felony||18|
|DELAWARE Tit. 11, §§636, 4209; §406||Yes||16|
|DISTRICT OF COLUMBIA 222404||No|
|FLORIDA 775.082, 782.04(1); 921.141; 922.07; 922.10 et seq.; 921.142; 922.08||Yes||16|
|GEORGIA 171030, et seq.||Yes||17|
|IDAHO 184001, etseq.; 192515, et seq.; 192701, et seq.||Yes||16|
|ILLINOIS 720 ILCS 5/91, et seq; 720 ILCS 5/102; 720 ILCS 5/301; 725 ILCS 5/1195; 730 ILCS 5/553||Yes||18|
|INDIANA 355023; 355029; 353861, et seq||Yes||18|
|KANSAS 213401; 213436; 213439, 214624 et seq.; 224001||Yes||18|
|KENTUCKY 431.220; 431.240; 532.025; 640.040; 509.040||Yes||16|
|LOUISIANA 14:30, etseq.; 14:113; 15:567, et seq.||Yes||No minimum age|
|MAINE Tit. 17A§§1251, 1152||No|
|MARYLAND Art. 27 §§71, 75, 412, 413, 627||Yes||18|
|MASSACHUSETTS Ch. 279 §§5771||No||No minimum age|
|MICHIGAN Const. Art. 4 §46; §750.316||No|
|MINNESOTA 609.10; 609.185; 1911 Minn. Laws Ch. 387||No|
|MISSISSIPPI 97321; 97767; 972555; 9919 51, et seq.; 9919 101 et seq.||Yes||16|
|MISSOURI 546.720; 552.060; 565.020; 565.032; 562.051; 576.070; 195.214||Yes||16|
|MONTANA 455102; 4618 220; 4618301, et seq.; 4619101,et seq.; 4619201, et seq.||Yes||18|
|NEBRASKA 28105, et seq.; 28303; 292519, et seq.||Yes||18 at time of crime|
|NEVADA 176.025; 176.345, et seq.; 176.415, et seq.; 200.030, et seq.||Yes||16|
|NEW HAMPSHIRE 630:1, et seq.||Yes||17|
|NEW JERSEY §§2A: 4A22; 2C:113; 2C:492||Yes||18|
|NEW MEXICO 31144, et seq.; 2861; 3118 14(A); 3120A5; 201242||Yes||18|
|NEW YORK Penal §60.06; 125.27; Crim. Pro. §400.27; Correction Law §650 et seq.||Yes; for 1st degree murder||18 at time of crime|
|NORTH CAROLINA 1417; 15A1001, et seq.; 15A2000; 122C313; 15187||Yes||17; no minimum age for first degree murder while serving prison sentence for prior murder or which work on escape from such sentence.|
|NORTH DAKOTA Ch. 1250 repealed by N.D. Laws Ch. 116 §41||No|
|OHIO 2929.02, et seq.; 2949.22, et seq.||Yes||18|
|OKLAHOMA Tit. 21 §§701.10, et seq.; Tit. 22 §§1005, et seq.||Yes||16|
|OREGON 137.080, et seq.; 137.473; 161.295, et seq.; 163.105, 163.150||Yes||18|
|PENNSYLVANIA Tit. 18 §1102; Tit. 42 §9711; Tit. 61 §3004||Yes||16|
|RHODE ISLAND 11232||No|
|SOUTH CAROLINA 16310, et seq.; 243530; 4423 210, et seq.||Yes||16; under 18 is a mitigating circumstance|
|SOUTH DAKOTA 22164; 23A 27A1, et seq.||Yes||16|
|TENNESSEE 3913201, et seq.; 371102; 4023 114||Yes||18|
|TEXAS Pen. 12.31, 19.03, 8.07; CCrP 37.071, 43.14||Yes||17|
|UTAH 77151; 7719 13; 77185.5; 76 3206, et seq.; 76 5202||Yes||16|
|VERMONT Tit. 13 §§7101, et seq.||No|
|VIRGINIA 18.210; 18.217; 18.231; 19.2167, et seq.; 53.1233, 19.2264.2, et seq.||Yes||16|
|WASHINGTON 10.95.010, et seq.; 10.95.180; 9.82.01||Yes||18|
|WEST VIRGINIA 61112 (1984)||No|
|WISCONSIN 939.50(3)(a); 940.01||No|
|WYOMING 62101, et seq.; 713901, et seq.||Yes||16|
According to the Death Penalty Information Center, 72 juveniles on death rows were under 18 when they committed the crime they were accused of. These include 29 for Texas, 14 for Alabama, five for Mississippi, four for Arizona, Louisiana and North Carolina, three for Florida and South Caroline, two for Georgia and Pennsylvania and one for Nevada and Virginia. States such as Arkansas, Idaho, Kentucky, Oklahoma, Utah, Delaware and New Hampshire do allow juvenile execution but at the moment do not have any juveniles on death row. All these “criminals” were minors under eighteen years of age when their crimes were committed. The most effective judgment, till date, about the death penalty for minors was passed by the U.S. Supreme Court on March 1, 2005 in Roper v. Simmons, 125 S. Ct. 1183 (2005). The Court in Roper’s case held that the death penalty cannot be applied to individuals who were under the age of eighteen when crime was committed. However, in Roper v. Simmons, the Court declared the laws of twenty states which allowed the death penalty for those who were minors when they committed certain crimes, to be unconstitutional. The reformation with regard to the decision in Roper was widely accepted by the international community. Whereas, the question why United States has not signed the treaty forbidding the execution of juvenile offenders is still unanswered. Moreover, many of the states still have not amended their death penalty laws in line with the decision in Roper.