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Killing Kids

Seven out of 10 Americans oppose the juvenile death penalty and nearly all major religious denominations, children's groups and legal and medical associations oppose the practice.


This year, the U.S. Supreme Court has the opportunity to pull our nation into the enlightened global community. Before the court is a case that challenges the constitutionality of the juvenile death penalty. If the justices determine that the barbaric practice of executing juvenile offenders has become so outmoded as to be no longer in keeping with our constitution, the United States finally will join the rest of the world in the 21st century.

In mid-October, the Supreme Court heard oral arguments in Roper v. Simmons, the Missouri case in which the state court found the practice of executing juveniles to be unconstitutional under the Eighth Amendment. Relying on the 2002 Atkins v. Virginia opinion, the Missouri Supreme Court found that the same rationale for striking down the death penalty for mentally retarded offenders applied to ending the death penalty for juvenile offenders.

In most areas of our lives, the law places strict prohibitions on children. People younger than 18 may not vote, serve in the military (without parental permission), serve on juries, make medical decisions, enter into contracts, marry (without parental permission), leave home (without parental permission), buy cigarettes or drink alcohol. These rules have been established precisely because we believe that adolescents are less mature than adults and less capable of making good decisions. Why, then, under capital punishment laws, should juveniles be found to be the most culpable and worthy of the harshest punishment?

Our knowledge that children are different from adults has been further confirmed by rapidly advancing technology in brain development research. Recent studies have shown that the parts of the brain that govern judgment, reasoning and impulse control are not fully developed until the early 20s. Through magnetic resonance imaging, scientists have learned that human brains continue developing until at least the early 20s. The last part of the brain to develop — the prefrontal cortex — governs judgment, reasoning and impulse control. This means that while adolescents may be capable in other areas, they cannot reason or control their behavior as well as adults and should, therefore, not be held to the same level of culpability.

In light of this new research, and based on legal precedent, it is hard to imagine that the Supreme Court could do anything but uphold the Missouri decision. The issues of executing mentally retarded people and juvenile offenders are practically mirror images of one another. In deciding to strike down the death penalty for mentally retarded offenders, the court considered a wide range of information, all of which tilted in favor of ending the practice. The court noted that 30 states, along with the federal government and the District of Columbia, already barred execution of mentally retarded offenders. The court also considered that public opinion — both here and abroad — was firmly against executing mentally retarded offenders as demonstrated by public opinion polls, the positions of dozens of professional organizations, religious institutions and the laws of other countries. The court considered as well the fact that only five known mentally retarded people had been executed since 1989, which was the year the justices last considered the issue.

In its ruling, the court declared that the dual justifications for the death penalty — retribution and deterrence — make no sense when it comes to executing mentally retarded people. Because of their mental limitations, mentally retarded people are less able to act with premeditation and deliberation and are, therefore, less likely to be deterred by the threat of a death sentence. In addition, their limited mental capacity makes them, by definition, less culpable than a person with normal mental functioning and, therefore, less deserving of the death penalty from a retributive point of view. This is not to say that mentally retarded people should not be punished. They can and do receive harsh punishments, including life without parole.

The Atkins analysis applies with equal, if not greater, force to the juvenile death penalty. Thirty-one states forbid executing offenders under 18, which is even more states than had eliminated the death penalty for mentally retarded people. Seven out of 10 Americans oppose the juvenile death penalty and nearly all major religious denominations, children's groups and legal and medical associations oppose the practice.

Since 1973, 22 juveniles have been executed in the United States, and 80 still remain on death row. The execution of juveniles has become unusual in recent years. Only seven states — Missouri, Texas, Virginia, Georgia, Oklahoma, South Carolina and Louisiana — have executed a juvenile offender since 1989, although 19 states still have a juvenile death penalty on the books.

Lastly, as the Missouri Supreme Court concluded, the values of retribution and deterrence are not served by the death penalty because juveniles, whose brains are not fully developed and are less able to make sound and responsible choices, are less culpable than adults and less likely to be deterred by the death penalty. This is not to say that a person under age 18 should be given a pass to commit murder. On the contrary, juveniles can be prosecuted and convicted in adult court and sentenced to lengthy sentences, including life without parole.

During oral argument, some of the justices, most notably Justice Kennedy, questioned how much weight the court should give to international opinion in making this decision. The court must be painfully aware that the United States is virtually isolated in the world community as one of the few nation that continues to carry out executions of juvenile offenders.

Yes, Justice Kennedy, the court should consider the human rights standards established by the international community. It is time that we join the rest of the world in ending this indecent practice. S

Rachel King is staff attorney with the ACLU Capital Punishment Project. This essay was first published online by www.tompaine.com.

Opinions expressed on the Back Page are those of the writer and not necessarily those of Style Weekly.


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