As a society, we recognize that children, those under 18 years old, can not and do not function as adults. That is why the law takes special steps to protect children from the consequences of their actions and often seeks to ameliorate the harm cause when children make wrong choices by giving them a second chance. The law prohibits people under eighteen from voting, serving in the military and on juries, but in some states, they can be executed for crimes they committed before they reach adulthood. The United States Supreme Court prohibits execution for crimes committed at the age of fifteen or younger. Nineteen states have laws permitting the execution of persons who committed crimes at sixteen or seventeen. Since 1973, 226 juvenile death sentences have been imposed. Twenty-two juvenile offenders have been executed and 82 remain on death row.
- On January 27, 2004, the U.S. Supreme Court decided to review whether executing sixteen and seventeen year-olds violates the Constitution's ban on 'cruel and unusual punishment.' The review comes after the Missouri Supreme Court overturned the death sentence of 17 year-old Christopher Simmons. Roper v. Simmons will be reviewed by the justices this fall, four of whom have called the juvenile death penalty 'inconsistent with evolving standards of decency in a civilized society.'
While adolescents can and should be held accountable for their actions, new scientific information demonstrates that they can not fairly be held accountable to the same extent as adults. Studies by the Harvard Medical School, the National Institute of Mental Health and the UCLA's Department of Neuroscience finds that the frontal and pre-frontal lobes of the brain, which regulate impulse control and judgment, are not fully developed in adolescents. Development is not completed until somewhere between 18 and 22 years of age. These findings confirm that adolescents generally have a greater tendency towards impulsivity, making unsound judgments or reasoning, and are less aware of the consequences of their actions.
Because of their immaturity, adolescent children are also more likely to be coerced by adults and are sometimes the pawns for more sophisticated criminals. They are also more likely to be taken advantage of during the investigation of a criminal case. Juveniles are often intimidated by adults and authority figures, and are therefore more likely to be the victims of coerced confessions, which are often false. Moreover juveniles are less likely to invoke their Miranda Rights, including their right to legal representation. Most importantly, the goals of the death penalty do not apply to juveniles. Retribution aims to give the harshest punishment to the worst offender. Juveniles are the most likely to be capable of rehabilitation. Given their emotional immaturity and lessened culpability, they are not among the ""worst of the worst.""
Public opinion in the United States increasingly opposes the execution of juvenile offenders. According to a 2003 Harris Poll, 69 percent of the people polled opposed the death penalty for juveniles; only 22 percent supported the execution of juvenile offenders, while 5 percent offered no opinion. Meanwhile, the juvenile death penalty disproportionately affects children of color, as it is subject to the same racial disparities as have been discovered throughout the use of capital punishment.
Internationally, the execution of juveniles is largely considered inhumane, anachronistic, and in direct conflict with fundamental principles of justice. The International Covenant on Civil and Political Rights bans the execution of juvenile offenders. Although the United States has signed the ICCPR and therefore agreed to be bound by its standards, the U.S. has reserved the right to execute juvenile offenders as long as our Constitution is interpreted to permit the practice. Of the 123 countries that currently use the death penalty, only the United States and Iran impose death sentences on juveniles. In the fall of 2003, however, Iran's judiciary began drafting a bill that will raise the minimum age for death sentences from fifteen to eighteen. The bill will also exclude those under eighteen from receiving life-terms or lashing as punishment. Ironically, many of the countries that the United States government regularly criticizes for human rights abuses have abolished the practice of executing juveniles. For example, between 1994 and 2000, Yemen, Zimbabwe, China and parts of Pakistan amended their laws to prohibit the execution of juvenile offenders. In continuing what is universally viewed as a barbaric and uncivilized practice, the United States has, over the past decade, executed more juvenile offenders than every other nation in the world combined.
See the American Bar Association's web site on Juvenile Death Penalty
Read information and statistics about the juvenile death penalty here
September 2001 · Vol. 26, No. 3, pp. 9-10
Juveniles and the death penalty
Diane H. Schetky MD
Child and Adolescent CommitteeThe U.S. Supreme court in Thompson v. Oklahoma (1988) decided that the Eighth Amendment prohibited the execution of persons younger than 16 at the time of their crimes. However, in the U.S. we continue to execute 16 and 17 year olds. Of the thirty eight death penalty states, twenty four permit the death penalty for individuals who committed crimes prior to the age of 18. The minimum age at the time of the crime is 16 in 12 states, 17 in 4, and many states do not specify an age. Fourteen states and the Federal system hold a minimum age at time of crime of 18 .
Currently, there are about 70 death row inmates who were sentenced as juveniles and 37 % of them are in Texas. Seventeen have been executed for crimes committed as juveniles since the reinstatement of the death penalty in 1976 and three of these executions occurred earlier this year. Only four other nations, Iran, Nigeria, Pakistan, Saudi Arabia and Yemen have executed juveniles in the past decade and there is almost global consensus on the need to eliminate the death penalty for crimes committed as juveniles. The U.S. has been the only country to refuse to sign the UN Convention of the Right of the Child, an international treaty which bars the execution of persons committing crimes before age 18.
Opposition to the death penalty, especially for use with juveniles, is mounting. The death penalty is unlikely to have any deterrent value on juveniles as many young juvenile offenders are impulse ridden, highly stimulus reactive and have difficulty planning ahead. Adolescents tend to live in the present, view themselves as invincible and many are easily swayed by peers in their antisocial behavior with little heed to consequences. Some do not value their lives and may even be suicidal. It is precisely because of their emotional and cognitive immaturity and difficulty with decision making that they are not afforded full adult status under the law. Hence, they are not considered old enough to vote, serve as jurors, sign a contract, purchase alcohol, serve in the military or, in some states, marry.
Many youths within the juvenile justice system have treatable but undiagnosed psychiatric disorders. The rates of affective disorders, Post Traumatic Stress Disorder, Attention Deficit Disorder and Learning Disabilities are consistently high in this population. In addition, some have neurological impairment as a result of exposure to drugs or alcohol in utero, early childhood physical abuse or their risk-taking life styles. Because of poverty and minority status, many of these youths have been disproportionately diverted into the juvenile justice system rather than to mental hospitals.
Legal representation is likely to be inadequate for youths facing the death penalty. The ABA notes that jurisdictions that have the death penalty have been unwilling to provide adequate legal services to these defendants who end up with unqualified or indifferent attorneys. Often these cases are assigned to the lowest bidders who invest little time in these cases and are unlikely to request a forensic evaluation or consider issues unique to adolescent development which might have bearing on issues of culpability. Even well intended attorneys may have difficulty getting the courts to authorize payment for forensic evaluations and investigations. In addition, prosecutors may lack adequate training in avoiding constitutional violations. As noted by the ABA, this situation literally spells death to the defendant.
Yet another argument against the death penalty is the well publicized risk of error, reported to be as high as 68% (Coyle), which has resulted in a moratorium on the death penalty in the state of Illinois.
Numerous organizations have come out with position statements opposing the use of the death penalty for crimes committed as juveniles including the American Academy of Child and Adolescent Psychiatry, the American Bar Association, the National Mental Health Association and most recently the APA. In addition, the ABA has called for a moratorium on capital punishment until each jurisdiction implements policies and procedures consistent with longstanding ABA policies intended to "1) ensure that death penalty cases are administered fairly and impartially in accordance with due process and 2) minimize the risk that innocent persons may be executed." Opposition is also coming from an unlikely source - some of the families and loved ones of victims have spoken up because they believe that the death penalty only serves to perpetuate the cycle of violence and failed compassion and they realize it will not take away their loss and grief.
The philosophy of the juvenile court has always been rehabilitation, yet, this is being eroded in an atmosphere of getting tough on juvenile crime and the increasing practice of waiving juveniles to the adult court. It is hard to justify this trend in an era where serious juvenile crime continues to decline and the goal of rehabilitation is closer than ever before with new and effective innovative treatments and community interventions available to populations at risk. We know that juveniles who are transferred to the adult correctional system have a very high risk of being victimized, are less likely to have their educational needs met and, if released, recidivate more rapidly than those who remain in the juvenile justice system. Our country continues to pour money into new and more prisons and executions rather than into efforts at preventing juvenile crime, providing psychiatric services for at-risk youths, and strengthening the juvenile justice system so that it can effectively respond to dangerous and/or repeat offenders to ensure public safety. AAPL members are urged to consider a position paper in support of banning the death penalty for crimes committed prior to age 18.
ABA: House of Delegates Moratorium on Capital Punishment, 1997.
Coyle M: 68% Error rate found in death case study. National Law Journal 6/19/00
Schetky D: Juveniles and the Death Penalty. AACAP News, July/Aug 2000