HUMAN RIGHTS, HUMAN WRONGS: SENTENCING CHILDREN TO DEATH∗
I. INTRODUCTION
It is time for the United States to relinquish its status as the world leader in sentencing persons to death for crimes they committed as children. The U.S.’s unparalleled use of the juvenile death penalty not only has provoked express condemnation from the international community, but also has triggered a domestic momentum demanding reform. Over the past several years, we have seen an increasing refusal among states to sanction juvenile executions, an emerging medical consensus that adolescents are less culpable for their actions than adults, and announcements from several Supreme Court Justices that the practice offends this nation’s evolving standards of decency. This report examines the history of juvenile executions in the United States, the juvenile death penalty in the current era, the growing momentum toward abolition, the decisive role that race plays in juvenile executions, developmental issues surrounding adolescence, the legal landscape of the juvenile death penalty, and the international consensus condemning the practice. The report further examines the lives of four juvenile offenders—two of whom have been executed and two of whom remain incarcerated on death row. The report concludes that continued reliance on the juvenile death penalty not only fails to serve any rational purpose but also leaves the nation starkly isolated from the rest of the world.
2. HISTORY
The first recognized juvenile execution in the United States occurred in 1642, when Thomas Graunger was executed in Plymouth, Massachusetts for committing the crime of bestiality when he was sixteen years old1. Since then, the U.S. has executed an additional 365 persons for offenses they committed as children2. This amounts to the execution of approximately one child offender per year during the past three and a half centuries—notwithstanding the illustrious social, economic and political advancements that have been made over the same period. The youngest known children to be executed in the U.S. were Native American. James Arcene, who was ten years old at the time of his crime, was hanged by the federal government in Arkansas in 18853.Hannah Ocuish, who was twelve years old at the time of her crime and execution, was hanged in 1786 in Connecticut for murdering a six-year-old white girl five months earlier4.Hannah grew up being bounced from foster home to foster home and was believed to be developmentally disabled.5 The youngest known person to be executed in the U.S. in modern times was George Stinney, a fourteen year-old African-American boy. He was executed by the state of South Carolina for the murder of two white girls, ages eight and eleven, in 19446. His case provides an acute example of the injustices that have historically plagued the country’s use of capital punishment.
∗Authored by Sapna Mirchandani, Soros Justice Postgraduate Fellow, assisted by Kelly Dolan and Mary Stewart Atwell. Presented by Brian Roberts at the First International Conference on the Application of the Death Penalty in Commonwealth Africa organized by the British Institute of International & Comparative Law held in Entebbe, Uganda from 10th to 11th May 2004 on behalf of the National Coalition against the Death Penalty( NCADP). Since its inception in 1976, the National Coalition to Abolish the Death Penalty (NCADP) has served as the only fully staffed national organization exclusively devoted to eliminating the death penalty. The NCADP provides public education, legislative advocacy and grassroots mobilization to individuals and institutions that share its unconditional rejection of capital punishment. NCADP is a network of more than 100 local, state, national and international affiliates and has an individual membership in the thousands.
1Streib, V, ‘The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973 – December 31, 2002’ available at
Juvenile Executions In The United States
George’s trial commenced one month after his arrest. The prosecution did not present any eyewitness testimony or physical evidence that linked George to the crime. The only evidence implicating George was his own confession, given to two white police officers and presumed to have been coerced. George’s court- appointed attorney, an aspiring politician, did not present any evidence on his behalf, did not cross-examine witnesses, and did not ask to have his client evaluated. The trial lasted only three hours and the jury (all white males) convicted George after only ten minutes of deliberation. Following the conviction and sentencing, George’s attorney failed to inform him that he could appeal the death sentence to the state’s Supreme Court. George was executed only six weeks after his conviction. Prior to the trial, George's family was advised to leave town to avoid any further retribution. They did as they were told, leaving George to face his death sentence alone. At the time of his execution, George was so small, weighing only 95 pounds, that the guards had difficulty strapping him into the electric chair. When the hidden executioner began, the first jolt of electricity caused the oversized mask to fall from George’s face7.
III. THE CURRENT ERA
Death Sentences Imposed On Juvenile Offenders
In the ‘current era’ of capital punishment (since 1973), a total of 224 persons have been sentenced to death for offenses they committed as children8. This represents approximately 3% of all death sentences imposed during the same period9. All but five of the 224 juvenile offenders sentenced to death were male. Four states, three of which are in the Deep South – Mississippi, Alabama, Georgia, and Indiana – were responsible for the five sentences of death given to female juvenile offenders10. More than half of the 224 death sentences imposed on juvenile offenders have been reversed or commuted11. As of December 31, 2002, 81 juvenile offenders remain incarcerated on death row (see Appendix B)12. All were sentenced in 15 of the 22 states that permit juvenile executions.
Execution Of Juvenile Offenders
Since 1973, the United States has carried out 21 executions of juvenile offenders13. The executions took place in 7 of the 22 states that currently allow the practice: Texas, Virginia, Georgia, Louisiana, Missouri, Oklahoma, and South Carolina. All of the juvenile offenders were seventeen years old at the time of the crime except for Sean Sellers, who was executed by the state of Oklahoma in 1999 for a crime he committed at the age of sixteen.
EXECUTION OF JUVENILE OFFENDERS SINCE 1973 Name Execution Date State Age at Crime Charles Rumbaugh September 11, 1985 Texas 17 James Terry Roach January 10, 1986 South Carolina 17 Jay Kelly Pinkerton May 15, 1986 Texas 17
Penalty Speech Commemorating the 10th Anniversary of the United Nations Convention on the Rights of the Child, November 18, 1999, available at
Geographic Distribution Of Juvenile Death Sentences An examination of the geographic distribution of juvenile death sentences across the United States reveals a dramatic concentration of such sentences in the South. In fact, southern states account for 84% of all death sentences imposed on juvenile offenders nationwide (see Appendix A). Only three of those states—Texas, Florida and Alabama—account for exactly half of all juvenile death sentences imposed nationwide14.
Texas—the unabashed leader among the states in sentencing juvenile offenders to death—is responsible for two-thirds of all juvenile executions carried out and more than one-third of all juvenile offenders currently on death row15.Nonetheless, the practice of sentencing juvenile offenders to death cannot be described as uniformly ‘Texan’ any more than it can be described as uniformly ‘American.’ This is because only 16 of Texas’s 254 counties are responsible for all of the state’s 28 juvenile offenders currently on death row. And although one would assume that the residents of the aforementioned counties would support the practice, this is not the case. Even in Harris County, where approximately one-third of the state’s juvenile offenders on death row are located, 3 out of 4 residents oppose juvenile executions according to a poll recently conducted by the Houston Chronicle16.
JUVENILE DEATH SENTENCES AND EXECUTIONS BY STATE SINCE 1973 State Death Sentences Imposed Executions Carried out on Juvenile Offenders on Juvenile Offenders Juvenile Offenders Currently on Death Row Texas 57 13 28 Florida 31 0 2 Alabama 24 0 13 Louisiana 17 1 7 Mississippi 13 0 6 Georgia 11 1 2 North Carolina 11 0 5 South Carolina 7 1 3 Oklahoma 7 1 1 Pennsylvania 7 0 4 Virginia 6 1 1
14 ibid 15 ‘Clearinghouse of Information: Juvenile Death Penalty,’ American University, Washington College of Law, available at
In contrast to the marked concentration of juvenile death sentences in the South, there are six states— all located in the West and Northeast—that currently permit juvenile executions but in which prosecutorial discretion and jury reluctance have led to the absence of a single sentence of death for a juvenile offender since 197317.
IV. MOMENTUM
Public Opinion
Public opposition to the juvenile death penalty is growing. Even in the wake of high-profile school shootings and a wave of prosecutorial efforts to treat juvenile offenders as adults, most people continue to understand the unique status—and rehabilitative potential—of juvenile offenders. In fact, according to a Gallup poll conducted in May 2002, 69% of Americans oppose the execution of juvenile offenders. In contrast, only 26% support such executions, while 5% have no opinion on the matter18.
Legislative Movement Within The States
Currently, 30 U.S. jurisdictions (28 states, the federal government and the District of Columbia) prohibit the execution of persons for crimes they committed as juveniles. Of the 22 states that permit juvenile executions, 17 states allow a sixteen-year-old to be sentenced to death, while the remaining states allow a seventeen-year-old to be sentenced to death.
MINIMUM AGE FOR IMPOSITION OF DEATH PENALTY BY JURISDICTION
∗ States that no longer allow juvenile offenders to be sentenced to death. 17 The six states are Delaware, Idaho, New Hampshire, South Dakota, Utah, and Wyoming. 18 Gallup Poll News Service, May 20, 2002, available at
Jurisdictions that Prohibit Juvenile Executions Jurisdictions that Permit Juvenile Executions
No Death Penalty 18 years19 17 years20 16 years21 Alaska California Florida++ Alabama Hawaii Colorado Georgia Arizona+ Iowa Connecticut New Hampshire Arkansas++ Maine Illinois North Carolina Delaware Massachusetts Indiana∗ Texas++ Idaho Michigan Kansas Kentucky+ Minnesota Maryland Louisiana North Dakota Montana∗ Mississippi+ Rhode Island Nebraska Missouri+ Vermont New Jersey Nevada+ West Virginia New Mexico Oklahoma+ Wisconsin New York Pennsylvania+ Ohio South Carolina Oregon South Dakota++ Tennessee Utah Washington∗ Virginia Wyoming+ 12 States and District of 16 States and Federal 5 States 17 States Columbia Government
* States that increased the minimum age at which capital punishment may be imposed to 18 since 1993. + States in which legislation banning juvenile executions has recently been introduced. ++ States in which legislation banning juvenile executions has recently progressed partway to adoption. ______
In recent years, the balance among the states has been tipping steadily toward those that prohibit juvenile executions. When the U.S. military and federal government reinstated the death penalty in 1984 and 1988, respectively, the statutes set the minimum age for a sentence of death at eighteen years. Moreover, when Kansas and New York reenacted the death penalty in 1994 and 1995, respectively, their statutes likewise set the minimum age for a sentence of death at eighteen years.
There has also been judicial and legislative activity among states that formerly permitted the execution of juvenile offenders to abandon the practice. In 1993, the Washington Supreme Court abolished the juvenile death penalty when it decided State v. Furman.22 Since 1999, two states have legislatively increased the minimum age at which a sentence of death can be imposed to eighteen years—Montana and Indiana.23 A number of other states are strongly considering such legislative amendments to their state death penalty statutes. In fact, legislation that would ban juvenile executions has recently progressed at least partway to adoption in four states (Arkansas, Florida, South Dakota and Texas) and has been introduced in at least
19 Each of the seventeen jurisdictions has a death penalty statute that sets the minimum age at eighteen years. 20 Four of the five jurisdictions (Georgia, New Hampshire, North Carolina and Texas) have statutes that set the minimum age at seventeen years. In Florida, where no minimum age is set by statute, seventeen years is required by the Florida Constitution per the Florida Supreme Court’s decision in Brennan v. State, 754 So.2d 1 (Fla. 1999). 21 Six jurisdictions (Alabama, Kentucky, Missouri, Nevada, Virginia and Wyoming) have statutes that set the minimum age at sixteen years. In the remaining eleven jurisdictions where no minimum age is set by statute (Arizona, Arkansas, Delaware, Idaho, Louisiana, Mississippi, Oklahoma, Pennsylvania, South Carolina, South Dakota, and Utah), sixteen years is required by the U.S. Constitution per the Supreme Court’s decision in Thompson v. Oklahoma, 487 U.S. 815 (1988). 22 858 P.2d 1092, 1103 (Wash. 1993). 23 In 1999, Montana passed House Bill 374 by a vote of 44-5 in the Senate and 85-15 in the Assembly. In 2002, Indiana passed Senate Bill 0246 by a vote of 44-3 in the Senate and 83-10 in the Assembly. another eight states (Arizona, Kentucky, Mississippi, Missouri, Nevada, Oklahoma, Pennsylvania and Wyoming).24 In contrast, during the same period, not a single state has lowered the minimum age at which a sentence of death can be imposed25.
Emerging Consensus Among Professional Organizations
Numerous professional child welfare and medical organizations have added to the momentum calling for an end to the juvenile death penalty26. In October 2000, the American Academy of Child & Adolescent Psychiatry released a report entitled ‘Recommendations For Juvenile Justice Reform’ stating that it ‘strongly opposes the imposition of the death penalty for crimes committed as juveniles’.27 In addition, both the American Medical Association and the American Psychological Association support ratification of the United Nations Convention on the Rights of the Child, which prohibits imposing the death penalty on juvenile offenders.28
The following organizations have similarly adopted formal positions opposing the execution of minors: the American Psychiatric Association29; the American Bar Association30; the Child Welfare League of America31; the Coalition for Juvenile Justice32; the National Education Association33; and the National Mental Health Association34. Many other professional organizations have demonstrated their opposition to the juvenile death penalty by filing amicus curiae briefs with the Supreme Court in cases addressing the constitutionality of the practice or writing letters on behalf of individual juvenile offenders. Among those organizations are: the American Society for Adolescent Psychiatry35; Defense for Children International- USA36; the International Human Rights Law Group37; the Juvenile Law Center38; the National Legal Aid and Defender Association39; and Physicians for Human Rights.40 Additionally, the American Law
24 In Arkansas, Senate Bill 78 passed the Senate 18-15, but stalled in the House of Representatives. In Florida, Senate Bill 1212 passed the Senate 34-0, but the House of Representatives did not vote on the measure before the end of the session. In South Dakota, Senate Bill 141 passed the Senate 20-13, but died in the House of Representatives based on a 7-6 recommendation from committee. In Texas, House Bill 2048 passed the House of Representatives 72-42 before becoming stalled in the Senate without a vote. 25 Lawmakers rejected bills to lower the minimum age for receiving the death penalty to sixteen or seventeen years in several states, including California. ‘Juvenile Offenders and the Death Penalty: Is Justice Served?’ Child Welfare League of America, National Center for Program Standards and Development, Juvenile Justice Division (2002), at 8. 26 A list of religious organizations that oppose the death penalty is available at
V. RACE
Race As A Decisive Factor In Juvenile Executions
Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die42.
Racial discrimination in the application of the death penalty is well documented. As numerous studies confirm, race historically has been, and continues to be, a decisive factor in determining who will live and who will die43. Children have not been immune to this racial bias. Between 1642 and 1899, approximately 52% of persons executed for juvenile offenses were African-American. During the twentieth century, that proportion rose to nearly 75%44.In fact, the racial disparity in the application of the death penalty is even more pronounced with juvenile offenders than it is with adult offenders. While 55% of all offenders currently on death row are persons of color, the ratio jumps to 67% when one looks only at juvenile offenders45. Of juvenile offenders currently on death row, almost half are African-American, a group that makes up only 12.7% of the U.S. population. The racial bias even crosses gender lines. Of the ten female juvenile offenders executed in the U.S., eight were African-American and one was Native American. In each of those cases, the victim was white46.
RACE OF JUVENILE OFFENDERS CURRENTLY ON DEATH ROW
Race Number % of Total African-American 38 47 White 27 33 Latino 13 6 Asian 2 3 Native American 1 1 Total 81
The same alarming racial disparity is present in the actual executions of juvenile offenders. Of the 21juvenile offenders executed in the current era, 57% were either African-American or Latino47. Conversely, of all offenders executed during the same period, 44% were from these racial groups48. The tragic message that these statistics convey is that society deems the lives of minority youths not only less capable of redemption than white youths but also—as reflected in the ultimate sentence of death—beyond rehabilitation.
August 6, 2002, available at http://www.phrusa.org/research/domestic/juv_justice/ tex_execution.html. 41 ALI Model Penal Code, 210.6, Commentary at 133 (Official Draft and Comments, 1980). 42 Justice Harry Blackmun Collins v. Collins, 114 S. Ct. 1127, 1135 (1994) (Blackmun, J., dissenting from denial of certiorari). 43 The United States General Accounting Office documented in its 1990 report a pattern of evidence indicating racial disparities in the charging, sentencing and imposition of the death penalty. The report stated: ‘Nationwide, 82 percent of those put to death have been convicted of murdering a white person even though people of color are the victims in more than half of all homicides’ U.S. General Accounting Office, Report GGD-90-57, ‘Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities’ February 26, 1990, at 5. 44 Hawkins, S., ‘Sentencing Children to Death’ States of Confinement: Policing, Detention and Prisons, St. Martin’s Press (New York 2000), at 27. 45 ‘Death Row U.S.A’ NAACP Legal Defense and Educational Fund, Inc., Summer 2002, at 3; Streib, V., ‘The Juvenile Death Penalty Today’ (n1). 46 Hawkins, S., ‘Sentencing Children to Death’ (n 44 ) 27. 47 Streib, V., ‘The Juvenile Death Penalty Today’ (n1) Two-thirds of all juvenile offenders executed in the U.S. have been African-American. Potter, G., ‘The Juvenile Death Penalty’ The Advocate, Vol. 21, No. 6 (November 1999). 48 ‘Death Row USA’ NAACP Legal Defense and Educational Fund, Inc., Fall 2002, at 5.
VI. ADOLESCENT DEVELOPMENT
[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their early years, generally are less mature and responsible than adults. Particularly during the formative years of childhood and adolescence, minors often lack the experience, perspective and judgment expected of adults49.
Society has long recognized that differences between adolescents and adults require the exclusion of adolescents from a range of activities. Persons below the age of eighteen cannot vote, serve on a jury, enter into a contract, join the military, execute a will, purchase cigarettes, or marry without parental consent. These age-based classifications ‘reveal much about how our society regards juveniles as a class, and about societal beliefs regarding adolescent levels of responsibility50’. With our laws considering persons below the age of eighteen to be in need of special treatment and protection comes the implicit recognition that juveniles cannot be held to the same level of culpability for their actions as adults. This recognition is now backed by scientific evidence. The latest research on adolescent brain development challenges the previously held notion that a person’s brain is fully developed by age fourteen, and instead suggests that development of the brain may last until early adulthood. Particularly instructive on the issue of adolescent brain development is a study recently conducted by professors at Harvard Medical School. That study, led by Dr. Deborah Yurgelun-Todd, demonstrates that different parts of the brain change at different times while one matures and that the frontal and pre frontal lobes of the brain—which regulate impulse control and judgment—are the last to develop51.
In the Harvard study, researchers used functional magnetic resonance imaging to record the brain activity of adolescents and adults while they completed two tasks. In the first task, the subjects were shown pictures of people with fearful expressions and asked to describe the emotion being expressed. In the second task, the subjects completed word-production projects. When adults completed the tasks, they primarily activated the frontal lobes and, to a lesser extent, the temporal lobes, of their brains. In contrast, when adolescents completed the same tasks, they relied much less on their frontal lobes— which control goal oriented rational thinking—and more on the ‘amygdala’, a structure in the temporal lobes that controls fear and other ‘gut’ reactions. The results demonstrated that between adolescence and adulthood, the subjects’ brain activity increasingly shifted away from the amygdale and toward the frontal lobes, leading to more reasoned perceptions and improved performance52. In an earlier study, professors at Harvard Medical School studied the malleability of the adolescent brain and determined that abuse and other traumas experienced during childhood and adolescence may permanently alter one’s brain structure. While it was commonly known that such trauma often produced
49 Justice Lewis Powell Eddings v. Oklahoma, 455 U.S. 104 (1982). 50 Stanford v. Kentucky (n 39) (dissenting opinion by J. Brennan). 51 Yurgelun-Todd, D., ‘Functional Magnetic Resonance Imaging of Facial Affect Recognition in Children and Adolescents’ American Academy of Child and Adolescent Psychiatry, 1999, 38:195-199. See also Spinks, S., ‘One Reason Teens Respond Differently to the World: Immature Brain Circuitry’ available at
Essentially, these and other studies have confirmed through science what society already understood from experience—that persons younger than eighteen generally have a greater tendency toward impulsiveness, lesser reasoning skills, and less awareness of the consequences of their decisions and actions.
VII. LEGAL LANDSCAPE
The practice of executing [juvenile] offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice54.
The United States Supreme Court first addressed the constitutionality of applying the death penalty to juvenile offenders in 1988. In Thompson v. Oklahoma, the Court held in a 5-4 ruling that it was unconstitutional to sentence a fifteen-year-old to death under a state statute that set no minimum age at which the penalty could be imposed55. In reaching its plurality opinion that the statute violated ‘evolving standards of decency’, the Thompson Court considered four factors. First, it looked at legislative enactments, finding that all states that had considered a minimum age at which a death sentence could be imposed had set the age at sixteen years56. Second, the Court looked to the determination of juries, finding that imposition of a death sentence upon an offender younger than sixteen years old was exceedingly rare57. Third, the Court considered the relative culpability of juveniles and adults, finding that ‘adolescents as a class are less mature and responsible than adults’58. Finally, the Court decided that a death sentence for a fifteen year- old offender did not ‘measurably contribute’ to the social purposes allegedly served by the death penalty—retribution and deterrence—‘[g]iven the lesser culpability of the juvenile offender, the teenager’s capacity for growth, and society’s fiduciary obligations to its children59.’
Justice O’Connor, who provided the critical fifth vote to the four-Justice plurality, wrote a concurring opinion, stating that the sentence of death should be set aside on narrower grounds. In Justice O’Connor’s opinion, the absence of evidence showing that any legislature had rendered a considered judgment approving capital punishment for offenders younger than sixteen years old left open the issue of whether fifteen-year-old offenders could ever be eligible to be sentenced to death60. The following year, in Stanford v. Kentucky and Wilkins v. Missouri, the Supreme Court held that the Eighth Amendment’s prohibition against cruel and unusual punishment did not forbid imposition of the death penalty for crimes committed by persons at sixteen and seventeen years of age. Justice Scalia, who wrote the Court’s plurality opinion,
53 ‘Deciphering the Adolescent Brain’ (n 52). A 1988 study published in the American Journal of Psychiatry, which examined juvenile offenders sentenced to death in four states, found that every juvenile offender not only had suffered serious head injuries as a child but also had serious psychiatric problems. Lewis, D., et al., ‘Neuropsychiatric, Psychoeducational, and Family Characteristics of 14 Juveniles Condemned to Death in the United States’ American Journal of Psychiatry, May 1988, vol. 145. 54 Justice John Paul Stevens Stanford v. Kentucky, (n 39) (dissenting opinion by J. Stevens, joined by J. Souter, J. Ginsburg, J. Breyer). 55 487 U.S. 815 (1988). 56 ibid 821-831 57 ibid 831-833 58 ibid 833-835 59 ibid 836-838 60 Justice O’Connor additionally disagreed with the plurality’s reliance on jury determinations and its proportionality analysis. As to the former, Justice O’Connor stated that ‘execution and sentencing statistics support the inference of a national consensus opposing the death penalty for 15-year-olds, but they are not dispositive’.487 U.S. at 853 (O’Connor, concurring). As to the latter, Justice O’Connor stated that, even assuming that adolescents are less blameworthy than adults, ‘it does not necessarily follow that all 15-year-olds are incapable of the moral culpability that would justify the imposition of capital punishment’. ibid. reasoned that since a majority of the thirty-seven states that had death penalty statutes at the time allowed capital punishment for juvenile offenders, the practice did not violate ‘evolving standards of decency’. As the dissenting Justices noted, however, the Court failed to take into account the following: (i) a ‘proportionality analysis’, as required by the Eighth Amendment, which would have considered the tendency of youths to be more impulsive and less self disciplined than adults61; (ii) the practice of states that did not impose the death penalty on any age group62; (iii) the reluctance of juries to impose capital punishment on juvenile offenders63; (iv) the body of law that sets eighteen or older as the legal age for engaging in various activities64; (v) the international community’s overwhelming condemnation of juvenile executions65; (vi) various indicia of public opinion, including polls, the views of interest groups, and positions adopted by professional associations66; and (vii) socio-scientific evidence concerning the psychological and emotional development of sixteen- and seventeen-year olds67. For the plurality, the ‘audience for [such] arguments’ regarding a juvenile offender’s culpability was not the Supreme Court, but ‘the citizenry of the United States’. Indeed, the plurality stressed that the most important indication of the public’s attitude was an objective one—namely, statutes passed by society’s elected representatives68. The plurality opinion in Stanford, however, did not indicate what proportion of death penalty jurisdictions must ban the execution of juvenile offenders before the Court will recognize an emerging ‘national consensus’. And while that question has been left unanswered for over a decade, the Court provided some direction in June 2002 when it decided Atkins v. Virginia.
In Atkins, the Court held in a 6-3 ruling that the United States Constitution prohibits imposition of the death penalty on offenders deemed to be mentally retarded69. Justice Stevens, writing for the majority, considered both ‘objective’ criteria—as reflected in the enactment of legislation—and ‘subjective’ criteria—as reflected in the Court’s own judgment of whether the practice comports with the Eighth Amendment’s prohibition against cruel and unusual punishment70. In doing so, the Court rejected the ‘objective-criteria- only’ approach employed by the plurality of the Court thirteen years earlier in Stanford. The Court first looked to “objective” criteria, noting that 16 jurisdictions enacted statutes banning the execution of persons deemed to be mentally retarded over the 12-year period since the Court last visited the issue, bringing the total number of jurisdictions banning the practice to 19. The Court emphasized that ‘[i]t is not so much the number of these States that is significant, but the consistency of the direction of
61 492 U.S. at 379-80. Justice O’Connor, who once again provided the critical fifth vote to the four-Justice plurality in Stanford, wrote a separate concurring opinion that pointed to the Court’s constitutional obligation to conduct a proportionality analysis under the Eighth Amendment. 62 Justice Scalia wrote ‘The dissent takes issue with our failure to include, among those States evidencing a consensus against executing 16- and 17-year old offenders, the District of Columbia and the 14 States that do not authorize capital punishment. It seems to us, however, that while the number of those jurisdictions bears upon the question whether there is a consensus against capital punishment altogether, it is quite irrelevant to the specific inquiry in this case: whether there is a settled consensus in favor of punishing offenders under 18 differently from those over 18 insofar as capital punishment is concerned’. 492 U.S. at 371, n.2. 63 ibid 373-374 64 Justice Scalia wrote that laws setting 18 or older as the legal age for driving, drinking and voting, for example, result from ‘determinations in gross, [which] does not conduct individualized maturity tests for each driver, drinker, or voter. The criminal justice system, however, does provide individualized testing’. ibid 374-75. 65 Justice Scalia wrote: ‘We emphasize that it is American conceptions of decency that are dispositive, rejecting the contention of petitioners and their various amici . . . that the sentencing practices of other countries are relevant’. ibid 370, n.1. However, in an earlier case, Trop v. Dulles, the Court explained that the scope of the Eighth Amendment’s ban on cruel and unusual punishment is ‘not static’, but ‘must draw its meaning from “the evolving standards of decency that mark the progress of a maturing society”’356 U.S. 86, 101 (1958). In Trop, the Court addressed the constitutionality of a statute that allowed Congress to remove a person’s U.S. citizenship as punishment for a crime. The Court, holding that the statute was unconstitutional, squarely considered the practice of the international community in determining what constituted ‘evolving standard of decency’. It held ‘The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. . . . The United Nations’ survey of the nationality laws of 84 nations of the world reveal that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion’ 356 U.S. at 102-03. 66 492 U.S. at 377. 67 ibid 377-378 68 ibid 370 69 122 S. Ct. 2242 (2002). 70 Ibid 2247-48 change71.The Court deemed the execution of mentally retarded offenders ‘truly unusual’ for two additional reasons: first, in states that permitted such executions, the practice was rare; and second, even among states that regularly executed offenders, only five had executed offenders with a known IQ less than 70 since 198972. The Atkins Court then considered ‘subjective’ criteria—non-legislative evidence of a broader social and professional consensus against the execution of persons deemed to be mentally retarded. In a footnote, the Court referred to the following indicia of such a consensus: (i) opinions adopted by various professional organizations condemning the execution of the mentally retarded; (ii) opposition to the practice from widely diverse religious communities; (iii) the overwhelming disapproval of the practice within the international community; and (iv) polling data showing a widespread consensus among Americans that executing mentally retarded persons is wrong73. The Court pointed out that although these indicia were ‘by no means dispositive, their consistency with the legislative evidence lends further support to [the] conclusion that there is a consensus among those who have addressed the issue74.
In 2002, the Court also issued two dissenting opinions that reflect a desire among several Justices to revisit the constitutionality of executing juvenile offenders in the near future. In the first case, Patterson v. Texas75, the Supreme Court denied a stay of execution and petition for certiorari from Toronto Patterson, a juvenile offender nearing execution in Texas. In a strongly worded dissent, Justice Stevens (joined by Justices Ginsburg and Breyer) wrote that since the Court’s 1989 decision in Stanford, application of the death penalty to juvenile offenders ‘has been the subject of further debate and discussion both in this country and in other civilized nations’76. Justice Stevens further noted, ‘[g]iven the apparent consensus that exists among the States and in the international community against the execution of a capital sentence imposed on a juvenile offender …it would be appropriate for the Court to revisit the issue at the earliest opportunity.”77
In re Stanford78, the most recent case addressing the constitutionality of the juvenile death penalty to reach the Supreme Court, the Court denied a petition for writ of habeas corpus from Kevin Stanford, a juvenile offender nearing execution in Kentucky. The Court’s 5-4 decision not to take the case was met by another strong dissent, this time by four Justices. In the dissent, Justice Stevens (joined by Justices Breyer, Ginsburg, and Souter) stated that ‘[t]he practice of executing [juvenile] offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society. We should put an end to this shameful practice’79.
XIII. INTERNATIONAL CONDEMNATION
The United States Is One Of The Only Nations That Continues To Execute Juvenile Offenders
Of the 123 countries that continue to use capital punishment, only two countries currently impose such punishment on juvenile offenders—the United States and Iran80. Over the past decade, while the U.S. and Iran have clung to their so-called right to sentence juvenile offenders to death, a number of countries have abolished the practice altogether. Yemen and Zimbabwe amended their laws in 1994 to forbid the
71 ibid 2249 (emphasis supplied) 72 ibid 73 ibid 2249 (n 21) 74 ibid 75 2002 U.S. LEXIS 8056 (Oct. 21, 2002). 76 ibid 1 77 ibid (emphasis supplied) 78 2002 U.S. LEXIS 8056 (Oct. 21, 2002). 79 ibid 80 ‘Juveniles and the Death Penalty: Executions Worldwide Since 1990’, Amnesty International, ACT 50/11/98, available at
JUVENILE EXECUTIONS WOLRDWICE SINCE 1990 Country Juvenile Executions Congo 1 Iran 6 Nigeria 1 Pakistan 2 Saudi Arabia 1 United States 21 Yemen 1
The United States Is In Violation Of International Human Rights Instruments That Expressly Prohibit Juvenile Executions
The United States, by continuing to sentence juvenile offenders to death, is in violation of several international human rights instruments that expressly forbid the practice. The most significant of these instruments is the International Covenant on Civil and Political Rights (ICCPR). Article 6(5) of the ICCPR, a binding treaty, states that: ‘[T]he sentence of death shall not be imposed for crimes committed by persons below eighteen years of age’85. Although the U.S. State Department has praised the ICCPR as ‘the most complete and authoritative articulation of international human rights law’ since World War II86, the U.S. has failed to endorse the treaty unconditionally. When it ratified the treaty in 1992, the U.S. filed an express reservation maintaining the right to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such punishments for crimes committed by persons below eighteen years of age87. In response,
81 De la Vega, C., et al., ‘Update On Death Penalty Cases Using International Human Rights Laws’ available at
Even setting aside these express instruments, the United States remains in violation of international law. This is because at least one international human rights tribunal has recently found that the rule prohibiting the execution of juvenile offenders had reached the status of jus cogens94 —meaning that it is a customary international law that is ‘accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted’95.
IX. CASE STUDIES.
A closer look at the lives of four juvenile offenders sentenced to death highlights the turmoil often endured by young offenders and the injustices that plague the system responsible for meting out sentences of death.
Joseph John Cannon Joseph John Cannon was sentenced to death in 1980, and again in 1982, for the 1977 shooting death of Anne Walsh, an attorney and mother of eight, in San Antonio, Texas. When Joseph was four years old, his skull was fractured when he was trampled by a pick-up truck. The injury left him with a severe learning disorder and speech impediment. Due to Joseph’s learning problems, the Texas public education system expelled him in the first grade, which was the last of his formal education. When Joseph was seven years old, his stepfather (his mother’s fourth husband) started to sexually abuse him. When Joseph was in his teens, his grandfather did the same. Throughout his childhood and teenage years, Joseph’s brother called him ‘retarded’ and his stepfather called him a ‘compulsive liar’. Joseph escaped the chaos of his life through alcohol and drugs. By the time he was ten years old, Joseph had sniffed so much glue and gasoline that doctors diagnosed him with permanent brain damage. At the age of fifteen, Joseph attempted suicide by drinking insect poison. When Joseph was arrested at the age of seventeen for the murder of Anne Walsh, he immediately confessed. Neither during his first trial in 1980, nor his retrial in 1982, were any facts about his background introduced. While incarcerated, Joseph learned to read and write, and took Bible classes by correspondence. Joseph was killed by lethal injection by the state of Texas on April 22, 1998, when he was thirty-eight years old. A closer look at the lives of four juvenile offenders sentenced to death highlights the turmoil often endured by young offenders and the injustices that plague the system responsible for meting out sentences of death.
88 ibid. The ten European nations that filed formal objections were Denmark, Finland, France, Germany, Italy, the Netherlands, Norway, Portugal, Spain and Sweden. 89 Consideration of the reports submitted by state parties under Article 40 of the Covenant, Comments of the Human Rights Committee, United States – Initial Report, para. 14, U.N. Doc. CCPR/C/79/Add. 50 (1995). 90 ‘Juvenile Offenders and the Death Penalty: Is Justice Served?’ Child Welfare League of America, National Center for Program Standards and Development, Juvenile Justice Division (2002), at 11. 91 ibid 92 The American Convention on Human Rights, art. 4, para. 5, O.A.S. Official Records, OEA / ser X / XVI 1.1, doc. 65 rev. 1, corr.1, reprinted in 9 I.L.M. 101 (1970) (entered into force on July 18, 1978); Convention on the Rights of the Child, Article 37(a), G.A. Res. 44/25, 44 U.N. GAOR C.1, Supp. (No. 49), U.N. Doc. A/44/736 (1989). 93 ‘Children and the Death Penalty: Executions Worldwide Since 1990 (n 83). 94 Inter-American Commission on Human Rights, Res. No. 3/87, case 9647, OEA/Ser.L./VII.69, Doc. 17 rev. 3, March 27, 1987. 95ibid Vienna Convention on the Law of Treaties, art. 53, U.N. Doc. A/CONF. 39/27 (1969).
Ronald Chris Foster Ronald Chris Foster was sentenced to death in 1991 for the 1989 shooting death of George Shelton, a clerk at a convenience store, in Lowndes County, Mississippi. When Chris was a child, his father, an alcoholic, would regularly hide bottles of alcohol under the house for Chris and his siblings to discover. Chris began drinking at the age of twelve, with his two older brothers serving as his drinking “mentors.“ Chris, who reportedly suffers from mental retardation, dropped out of school after the eighth grade. On the night of the shooting for which he was convicted, Chris, who was seventeen years old, and his friend Vincent Harris, who was fifteen years old, met at a nightclub in Columbus, Mississippi and began drinking beer. After Chris and Vincent consumed approximately twelve and six beers, respectively, they climbed on a bicycle and rode a mile and a half to a nearby convenience store to rob the cashier. Before arriving, Vincent jumped off the bicycle and refused to go any further. Chris entered the store unarmed. During the attempted robbery, the clerk was shot with a gun, registered in his own name, that he kept behind the counter for protection. Chris’s trial was plagued with problems from its start. Due to his status as a juvenile at the time of the crime, Chris was entitled under Mississippi law to request the circuit court to conduct a special hearing to take into account his youth, lack of prior criminal record, potential for rehabilitation and other factors mitigating in favor of trying him in a juvenile court. Due to his counsel’s ignorance of the law, no request for such a hearing was ever made. During the sentencing phase of Chris’s trial, his counsel failed to introduce a significant amount of mitigating evidence. For example, the jury was never told that Chris had no criminal history. In addition, although Chris’s counsel requested the use of a mental health evaluation, the court failed to issue a ruling on the request, thereby limiting the mitigating evidence on Chris’s behalf to the testimony of his parents. Chris was scheduled to die by lethal injection in Mississippi on January 8, 2003, his 31st birthday. Two days before the scheduled execution, the Governor of Mississippi issued a temporary stay pending the outcome of Chris’s appeals. He remains incarcerated on death row.
Nanon McKewn Williams Nanon McKewn Williams was sentenced to death in 1995 for the 1992 shooting death of Adonius Collier in Harris County, Texas. Nanon grew up surrounded by drugs, which his parents manufactured and sold. Shortly after Nanon was born, his mother was incarcerated for her drug activities. During her two years in prison, Nanon was left in the custody of his father, who was subsequently incarcerated until Nanon was five or six years old. While Nanon’s father was in prison, his mother remarried a man who also was involved in the manufacture and sale of drugs. Nanon’s earliest childhood memory is an incident in which he was stabbed in the leg by a group of children who were attempting to steal his tricycle. He was five years old. When Nanon was seven years old, he witnessed the brutal shooting death of his uncle in his family’s home. According to court documents, Nanon was covered in blood as he tried to revive his uncle following the shooting. When Nanon was eleven years old, his family’s ranch was raided in the middle of the night by dozens of federal agents. During the raid, Nanon and his sister watched their parents’ arrest before they were taken into custody. When Nanon was twelve years old and living with his grandparents (his sixth home), he learned of the shooting death of his biological father. When Nanon’s mother was later released from prison, the family lived on welfare. Nanon remained depressed and suicidal throughout his childhood and teenage years. He has stated of his life, ‘I became a full time hustler, drug dealer and many other things, but I was never allowed to be innocent; I lost that the day I was born’. Throughout his teenage years, Nanon continued to sell drugs and was shuttled in and out of the juvenile justice system. He continued to go to school, and even paid his own tuition to a private school for a short time, where he was a football star and was courted by college scouts. At the age of seventeen, Nanon was detained by authorities and extradited to Texas for a crime he maintains he knew nothing about. Nanon remains incarcerated on death row in Texas, where he writes poems, publishes a newsletter (the ‘Williams Report’) and reaches out to other young offenders on death row.
Dwayne Allen Wright Dwayne Allen Wright was sentenced to death in 1992 for the 1989 murder, robbery and attempted rape of Saba Tekle, a mother of three, in Virginia. When Dwayne was four years old, his father was incarcerated, leaving him in the sole care of his mother, who suffered from mental illness and was frequently unemployed. Dwayne’s older brother, who was thirteen years his senior, acted as a father figure to Dwayne. When Dwayne was ten years old, he witnessed his brother being shot to death and, soon afterwards, fell into a severe depression. When Dwayne was twelve years old, he was hospitalized for a brain infection and underwent brain surgery. When he was thirteen years old, he experienced an acute psychotic episode. He was committed to a psychiatric hospital, where doctors diagnosed him with organic brain damage and mental illness. The doctors noted that Dwayne’s psychotic behavior and emotional outbursts were effectively controlled when he received proper medication. They recommended that he be placed in a highly structured, restrictive and individualized residential program. Such placement never occurred. Instead, he spent the next several years being warehoused in various juvenile detention facilities. One of those facilities was subsequently shut down by court order as ‘unfit to house animals of a lower level.’ When Dwayne was arrested at the age of seventeen for the murder and attempted rape for which he was ultimately convicted, he confessed. During the sentencing phase of Dwayne’s trial, his court appointed attorney failed to inform the jury of his troubled background. Instead, the jury was incorrectly told that Dwayne was neither mentally ill nor brain damaged, but simply lacked interest in school. The jury sentenced him to death after deliberating for five hours.
Following Dwayne’s sentence of death, two jurors stated that they would not have voted for death if they had known about Dwayne’s history. Also following Dwayne’s trial, his attorney admitted in an affidavit that he made critical mistakes in the case, including hiring an independent mental health expert who believed that people rationally ‘chose’ a life of crime, rather than following that route as a result of environmental and biological influences.
Dwayne made substantial progress toward managing his illness during the years he spent in the structured environment of prison. He was killed by lethal injection by the state of Virginia on October 14, 1998, when he was twenty-six years old.
X. CONCLUSION.
Abolition of the juvenile death penalty in the United States is long overdue. The practice is plainly at odds not only with a majority of American jurisdictions but also with the rest of the world. The explosive increase in information flow across international borders in recent years, which has allowed countries to become more interconnected both economically and politically, has led to an essential convergence of human rights norms. Yet the U.S.’s adherence to juvenile executions continues to be a shameful exception to this global trend.
As the existing momentum toward abolition of juvenile executions grows within the public conscience, state legislatures, and professional organizations, and as the U.S. comes under increasing pressure from the international community, the demise of the juvenile death penalty seems inevitable. The question we now face is not if juvenile executions in the United States will end, but when.
APPENDIX A JUVENILE DEATH SENTENCES BY REGION SINCE 197396
Region States Death Sentences Imposed % of Total (224) Alabama 24 Arkansas 2 Florida 31 Georgia 11 Kentucky 3 Louisiana 17
96The table lists only the 29 jurisdictions that have permitted capital punishment for juvenile offenders at some time since 1973.
Mississippi 13 North Carolina 11 Oklahoma 7 South Carolina 7 Texas 57 Virginia 6 South Total 189 84%∗
Arizona 6 Idaho 0 Montana∗ 0 Nevada 3 South Dakota 0 Utah 0 Washington∗ 1 Wyoming 0 West Total 10 5%
Indiana∗ 3 Missouri 4 Nebraska∗ 1 Ohio∗ 6 Midwest Total 14 6%
Delaware 0 Maryland∗ 3 New Hampshire 0 New Jersey∗ 1 Pennsylvania 7 Northeast Total 11 5% ∗ states that no longer permit juvenile offenders to be sentenced to death.
APPENDIX B JUVENILE OFFENDERS CURRENTLY ON DEATH ROW
Name State Year Sentenced Age at Crime Timothy Charles Davis ALABAMA 1980 17 Kevin Nigel Stanford KENTUCKY 1982 17 Kevin Hughes PENNSYLVANIA 1983 16 Cleo Douglas LeCroy FLORIDA 1986 17 Thomas Mark Adams NORTH CAROLINA 1988 17 Scott Allen Hain OKLAHOMA 1988 17 Percy Lee PENNSLYVANIA 1988 17 Exzavious Lee Gibson GEORGIA 1990 17 Gary Davis Hart II ALABAMA 1990 16 Nathan D. Slayton ALABAMA 1990 17 Mauro Morris Barraza TEXAS 1991 17 James Patrick Bonifay FLORIDA 1991 17 Ronald Chris Foster MISSISSIPI 1991 17 William Thomas Knotts ALABAMA 1992 17 Steven Brian Alvarado TEXAS 1993 17 David Blue MISSISSIPI 1993 17 Adam Comeaux LOISIANA 1993 17 William Joseph Holly MISSISSIPI 1993 17 Antonio Richardson MISSOURI 1993 16 Robert Lewis Conyers SOUTH CAROLINA 1994 16 Michael (Miguel) Domingues NEVADA 1994 16 Levi Jaimes Jackson ARIZONA 1994 16 Kenneth Jeremy Laird ARIZONA 1994 17 Jose Ignacio Monterrubio TEXAS 1994 17 Efrain Perez TEXAS 1994 17 Christopher S. Simmons MISSOURI 1994 17 Oswaldo Regalado Soriano TEXAS 1994 17 Martin Raul Soto-Fong ARIZONA 1994 17 Raul Omar Villareal TEXAS 1994 17 Johnnie Bernal TEXAS 1995 17 Dale Dwayne Craig LOUISIANA 1995 17 Justin Wiley Dickens TEXAS 1995 17 Anthony Jerome Dixon TEXAS 1995 17 Herman Lee Hughes, Jr. SOUTH CAROLINA 1995 17 Larry Leonarde Jenkins GEORGIA 1995 17 Nanon McKewn Williams TEXAS 1995 17 Edward Brian Capetillo TEXAS 1996 17 John Curtis Dewberry TEXAS 1996 17 Trace Duncan ALABAMA 1996 17 James Matthew Hyde ALABAMA 1996 17 Anzel Keon Jones TEXAS 1996 17 Kenneth Loggins ALABAMA 1996 17 Stephen Virgil McGilberry MISSISSIPPI 1996 16 Ted Benjamin Powers SOUTH CAROLINA 1996 16 Mark Sam Arthur TEXAS 1997 17 Raymond Levi Cobb TEXAS 1997 17 Cedric D’Wayne Howard LOUISIANA 1997 16 Eddie C. Johnson TEXAS 1997 17 Marcus Dewayne Pressley ALABAMA 1997 16 Renaldo Adams ALABAMA 1998 17 Randy Arroyo Baez TEXAS 1998 17 Kelvin Dycus MISSISSIPPI 1998 17 Kevin Salvador Golphin NORTH CAROLINA 1998 17 Shermaine Ali Johnson VIRGINIA 1998 16 Shaber Chamond Wimberly ALABAMA 1998 17 Roy Bridgewater LOUISIANA 1999 17 Mark Anthony Duke ALABAMA 1999 16 Roderick Eskridge MISSISSIPPI 1999 17 Derrick Jermaine Guillen TEXAS 1999 17 Derrick Idaz Harvey PENNSYLVANIA 1999 16 Patrick Horn TEXAS 1999 17 Antoine Miguel Ligons PENNSYLVANIA 1999 17 Leo Gordon Little TEXAS 1999 17 Michael Anthony Lopez, Jr. TEXAS 1999 17 Ryan Matthews LOUISIANA 1999 17 Christopher Julian Solomon TEXAS 1999 17 Bruce Lee Williams TEXAS 1999 17 Geno Capoletti Wilson TEXAS 1999 17 Gregory Wynn ALABAMA 19999 16 James Edward Davolt II ARIZONA 2000 16 Whitney Reeves TEXAS 2000 17 Francisco Edgar (Paco) Tirado NORTH CAROLINA 2000 17 Son Vu Khai Tran TEXAS 2000 17 Corey D. Williams LOUISIANA 2000 16 Lamorris J. Chapman NORTH CAROLINA 2001 17 Christopher "Bo" Huerstel ARIZONA 2001 17 Robert Burns Springsteen IV TEXAS 2001 17 Travis Levance Walters NORTH CAROLINA 2001 17 James Willis Bonds ALABAMA 2002 16 Jorge Alfredo Salinas TEXAS 2002 17 Aaron Wilson LOUISIANA 2002 17