updated March 1, 2005

In 2004, when oral arguments were presented in the case of Roper v Simmons, a news team from Children's PressLine traveled to Livingston, Texas to interview two of the 72 offenders on death row in the U.S. for crimes committed as juveniles. The project was sponsored by the New York Women's Bar Association Foundation. Here are excerpts from interviews with Nanon Williams and Randy "Abdullah" Arroyo."

Since this story was written, the Supreme Court has ruled 5 to 4 that execution of individuals for crimes committed before the age of 18 constitutes cruel and unusual punishment. The March 1, 2005 decision noted both the declining number of states that permit such executions – 19 – and the tendency in those states to impose the penalty only rarely. “Our society views juveniles... as categorically less culpable than the average criminal,” wrote Justice Anthony Kennedy. (The decision and dissenting opinions are available on the Supreme Court web site.)

In 1988, the Supreme Court ruled that the death penalty for crimes committed at the age of 15 and under is unconstitutional. Since 2002, mentally retarded defendants have also been ineligible for the death penalty. Now there is a chance that another category of individuals -- those who are 16 and 17 years old at the time of their crimes – could be exempt from execution.

The Supreme Court is expected to issue a ruling in the case of Roper v Simmons soon. Simmons was 17 when he and a 15-year-old friend broke into a neighbor’s home in Missouri. They abducted the neighbor, Shirley Crook, bound her with duct tape, and pushed her into the Meramec River where she drowned.

Read the views of a college student who was a neighbor of Simmons and Crook, from The Maneater, the University of Missouri at Columbia student paper.

Simmons was sentenced to death by a Missouri jury, but the Missouri Supreme Court later ruled against the death penalty, saying that a “national consensus” had emerged against the execution of juvenile offenders. Missouri asked the Supreme Court to review the decision, and arguments in the case were heard in October 2004.

As of now, 31 states, D.C., and the federal government bar the execution of those under 18 at the time of their offenses.

A Rare Penalty
Fifteen years ago, a closely divided Supreme Court ruled 5 to 4 that executing 16 and 17-year-olds was constitutional, in Stanford v Kentucky. One reason that death penalty opponents and supporters of the view that children under 18 deserve special consideration in the courts are hopeful that the court will reach a different conclusion this time is that since that ruling, the number of juvenile offenders to receive a sentence of death has fallen dramatically.

One high profile example of what some see as a growing reluctance by juries to impose the ultimate penalty on young offenders was the decision by a Virginia jury, in March 2004, to sentence Lee Boyd Malvo to life in prison for one of the Washington-DC area sniper killings.

Over the past ten years, three states have executed juvenile offenders. Texas has executed 11; Virginia, 3; Oklahoma, 2.

Professor Jeffrey Fagan, director of Columbia University’s Center for Violence Research and Prevention, has researched the frequency of death penalty sentences meted out to juvenile offenders. He says that juvenile death sentences peaked in 1994, then began to fall. After 1999, the decline became quite sharp. His research indicates that one factor driving the decline has been the growing numbers of capital cases in which new evidence has established the innocence of prisoners condemned to die.

Beyond that, he says, “The causes remain a mystery, and probably are unknowable….There has been a huge normative shift in thinking about the death penalty, in part because of questions of innocence and exonerations.”

Death penalty supporters argue that this decline is an argument in favor of retaining the option for those states that want it, because it shows that juries and courts are very careful only to impose death in the most heinous cases.

Norms
When lawyers for both sides made oral arguments to the Supreme Court on October 13, 2004, questions from the Justices focused in on a few specific issues.

One was the issue of whether evolving norms – both national and international -- have changed to the point where executing those who were not adults at the time of their crimes is now cruel and unusual punishment.

“Suppose it were shown that the United States was one of the very, very few countries that executed juveniles, and that’s true,” said Justice Anthony Kennedy. “Does that have a bearing on whether or not it is unusual?”

I spoke with Michael Bochenek, Counsel to the Children's Rights Division of Human Rights Watch., about why U.S. courts and juries should be influenced by other nation’s decisions.

“International law is as clear as it gets on this issue,” said Bochenek. “Treaties that the U.S. is a party to say that executing juveniles is a human rights violation.” Bochenek says that even in cases where the U.S. has signed a treaty with reservations, refusing to accept the ban on juvenile executions, such reservations aren’t valid under international law. “Under international law, when a treaty deals with a fundamental human right, you can’t take a reservation that undermines the object and purpose of the treaty.”

Another legal concept that comes into play, says Bochenek, is the idea that “once a practice has become so ingrained through practice and usage that nations act as if it is law, then it is law.” For example, notes Bochenek, “In many countries, there is no written law against torture…but every country in the world at least espouses the view that torture is illegal.”

The execution of juvenile offenders, says Bochenek, has become so rare internationally that there is what is termed “a customary international law norm” against it, similar to the prohibition against torture, genocide, or piracy.

“This is not a norm like the three-mile limit in the law of the sea. This is a fundamental rule, and countries are not free now to depart from that rule,” says Bochenek.

The American Bar Association has posted all briefs on both sides of the Roper v Simmons case

A brief in the case filed by a coalition of human rights groups, including Human Rights Watch, notes that “The only other countries known to have executed juvenile offenders in the last 10 years have since abolished the practice, acknowledged that such executions were contrary to their laws, or denied that they took place.”)

The Adolescent Brain
Another line of reasoning put forward by opponents of executing juvenile offenders is that new brain research supports the view that adolescents are less capable than adults of controlling their impulses and understanding the consequences of their actions.

New brain imaging studies have shown that the portion of the brain associated with impulse control is one of the last to mature, and in many people is not fully formed until the age of 25.

A recording of the show, Minors and the Death Penalty , is on the web.

Dr. Jay Giedd, chief of the unit on brain imaging in the child psychiatry branch of the National Institute of Mental Health, said in an interview with the NPR show Talk of the Nation in October, 2004 that the science is clear: “The brain of a teen is different from the brain of a 25-year-old.”

“Teens as a group weigh risk differently,” said Giedd. However, he warned against “stretching the science too far to support a political or moral agenda.” Current science isn’t yet at the point where, for instance, images of an individual’s brain would offer clear guidance on how mature or immature his or her decision-making ability was. Geed noted that some 16-year-olds make very good decisions, while some people will never make good decisions “no matter how old they get.”

“It’s the problem we face when going from group averages to individual behavior,” said Giedd.

During oral arguments, questions from the justices focused on why an individual’s 18th birthday should become an automatic line marking the beginning of full adult responsibility for one’s criminal acts, and how new brain research might affect that discussion.

In a brief filed in support of retaining the option of sentencing juveniles to death, the attorneys general of six states argued that judges and juries can take an individual’s developmental level into account during trial and sentencing, but that there is no magic about the age of 18. The brief distinguishes between the issues raised by adolescent development and mental retardation, noting that exempting offenders with mental retardation from execution “rests…on a judgment that retarded offenders are, by virtue of their limited cognitive abilities, less blameworthy than non-retarded offenders. That sort of clinical assessment simply does not hold for adolescents.”

Are We Tired of Standing Alone?

Among all the nations of the world, the U.S. and Somalia are alone in having not signed the U.N. Convention on the Rights of the Child. The treaty’s stance against executing juvenile offenders is one key reason that the U.S. has not signed on. (Somalia has no functioning central government.)

A few signatories of the treaty have not abided by that provision: in the past five years, Iran, the Democratic Republic of the Congo, Saudi Arabia, and Pakistan have executed juveniles, according to Human Rights Watch. “This is an extremely small number of countries, and they are countries that are hardly paragons of protecting human rights,” says Bochenek. “And of all the countries in the world known to execute juvenile offenders, the one that does it the most often is the U.S.”

More resources:

• The American Bar Association has a broad collection of resources on juvenile death penalty issues.
• Justice for All, a victim’s rights organization that supports the death penalty, presents victim statements and other materials.
• Human Rights Watch takes a global perspective in opposing the death penalty both in general and specifically in cases involving juveniles.
• The Death Penalty Information Center, which advocates abolishing the death penalty, has fact sheets and state-by-state information.

Talk Back

If you’ve got comments or questions about this story, we’d like to hear them. Send your response to Susan Phillips (susan@connectforkids.org).