Cleveland-Marshall College of Law
1801 Euclid Avenue
Cleveland, Ohio 44115
Telephone: (216) 687-2344
AVOIDING THE JUVENILE DEATH PENALTY IN NEW YORK STATE*
by
Victor L. Streib**
Professor of Law
April 5, 1991
THE DEATH PENALTY:
PERSPECTIVES ON THE PAST AND FUTURE IN NEW YORK STATE,
in Albany, New York, and sponsored by
the Albany Law Review, Albany Law School, and
the School of Criminal Justice, SUNY-Albany
©
Victor L. Streib
@ 1991
|
|
Presented at a Conference,
As New York struggles to become the most recent and probably
the last American jurisdiction to join the current death penalty
bandwagon,
it has the opportunity to avoid the most obvious
mistakes committed by those death penalty states which joined
this movement in the early stages. One of those mistakes is the
widely publicized but rarely utilized death penalty for crimes
2
committed as juveniles. New York can and apparently will reject
its past practice and adopt the modern practice recommended or
required by research findings, court rulings, and worldwide
community pressures. To this end, this article supplies the
facts and legal reasoning for the rejection of the juvenile death
penalty in New York in the 1990s and beyond.
I. NATIONAL HISTORY OF THE JUVENILE DEATH PENALTY
A. Executions
The death penalty has been a part of American criminal
justice system since the earliest European colonization of the
wilderness territory that was to become the United States of
3
America. From those earliest days to the present, at least
17,000 persons have been lawfully executed for a wide variety of
crimes.4
Executions under juvenile death sentences began as early as
1642 but have occurred predominately in this century, peaking in
the 1930s and 1940s.° They ended temporarily in 1964© but began
again in 1985.7
Four of the 143 executions® occurring in the
current era have been for crimes committed while under the age of
eighteen. They are listed in Table 1.
lea a a i tl ea as
All four of these recent juvenile executions were of "older"
juveniles; no persons have been executed for crimes committed
while age sixteen or younger since 1959.9 Each of these recent @
cases involve a long interval between sentencing and execution,
characteristic of current era death penalty cases. These recent
juvenile cases range from just under five years for Pinkerton?
to over twelve years for Prejean.21
TABLE 1
EXECUTIONS OF JUVENILE OFFENDERS, 1973 THROUGH 1990
Date of Place of Age at Age at
Name Execution Execution Race Crime Execution
Charles Rumbaugh 9-11-1985 Texas White 17 28
J. Terry Roach 1-10-1986 So. Car. White 17 25
Jay Pinkerton 5-15-1986 Texas White 17 24
Dalton Prejean 5-18-1990 Louisiana Black 17 30
Including the last four juvenile executions listed in Table ©
1, 283 offenders have been executed for crimes committed while
12
under the age of eighteen. Cases prior to 1900 typically are
not well documented, leading to some skepticism about the details
13° fhe historical rarity of this practice in
14
of some of then.
this century is illustrated in Table 2.
While persons have been executed for crimes committed as
young as age ten,?° 82% of the juvenile offenders actually
executed were age sixteen or seventeen when they committed their
16 Younger offenders, particularly those under age
17
crimes.
fourteen, were executed in the greatest numbers prior to 1900.
White offenders constitute only one-quarter of the executed
juveniles and only 20% of juveniles executed since 1900.28 in
striking contrast, the victims of these capital crimes @
overwhelmingly were white persons, 89% overall and 93% since
1900.29 Southern states predominate in juvenile executions,
accounting for 65% of the total. 2° Georgia is the single-state
leader with forty-two juvenile executions, followed at a distance
by New York, North Carolina and Ohio at nineteen each, and by
Texas and Virginia at eighteen each. 21
TABLE 2
JUVENILE AND TOTAL EXECUTIONS IN THE UNITED STATES, 1900-1990
Juvenile Total
Decade Executions Executions
1900-09 23. (1.9%) 1,192
1910-19 23. (2.2%) 1,039
1920-29 27 (2.3%) 1,169
1930-39 41 (2.5%) 1,670
1940-49 53 (4.1%) 1,288
1950-59 16 (2.2%) 716
1960-69 3 (1.6%) 191
1970-79 0 (0%) 3
1980-89 3 (2.6%) 117
1990 1 (4.3%) 23
TOTALS: 190 (2.6%) 7,408
B. Recent Juvenile Death Sentences:
The previous era of the death penalty ended on June 29,
1972, when the United States Supreme Court decided Furman v.
22
Georgia and effectively threw out all then-existing death
penalty statutes. 23
To the surprise of many, a new and still the
current era of the death penalty began only a few months later.24
By early 1973, new statutes had been enacted and offenders were
once again being sentenced to death. Illustrative is the case of
John Arthur Spenkelink, who committed his Florida murder on
February 4, 1973, was sentenced to death on December 20, 1973,
and was the second person to be executed in this current era,
dying in Florida’s electric chair on May 25, 1979.29
By January 1, 1973, some states were again sentencing
offenders to death under their yet untested new death penalty
statutes.*© The annual death sentencing pace quickly accelerated
to the 300-per-year level but then dipped during and immediately
27 The annual rate
after the Court’s 1976 foray into this issue.
finally reached to about the 300-per-year level again in the mid-
1980s and has remained there with no sign of significant change
coming in the near future. 28
death-sentencing rates during the post-Furman period.
TABLE 3
ANNUAL JUVENILE AND TOTAL DEATH SENTENCES, 1973-1990
Total Juvenile Death Sentences
Death (Age at Crime)
Year Sentences 15 16 17 Totals
1973 42 0 0 0 0
1974 151 1 8) 2 3
1975 301 0 4 3 7
1976 234 0 0 2 2
1977 141 1 3 6 10
1978 188 0 1 6 7
1979 158 0 1 3 4
1980 186 2 0 1 3
1981 239 0 3 6 9
1982 277 0 1 13 14
1983 262 0 4 3 7
1984 294 3 0 3 6
1985 291 1 1 4 6
1986 315 1 3 3 7
1987 304 1 0 1 2
1988 296 0 0 5 -
1989 300* 0 0 2 2
1990 300* 1 2 4 7
Totals : 4,279 11 23 £67 101
*Estimates for 1989 and 1990.
Table 3 indicates these annual
The pace at which judges and juries sentence persons to
death for crimes committed while under the age of eighteen has
remained extremely low during this entire era.29
After peaking
at ten in 1977 and then again at fourteen in 1982, it has
remained below ten per year during an era in which total death
sentences remained at about 300 per year. The lull in juvenile
death sentencing in 1987 through 1989 is probably attributable to
the then pending Supreme Court cases (Thompson v. Oklahoma?° and
Stanford v. Kentucky??). Now with those decisions behind us, the
1990s may see the juvenile death sentencing rate increase to
about ten per year.
These 101 juvenile death sentences since 1973 comprise only
2.4% of the total (4,279) and in the last few years have fallen
to around 1% of the annual total. In essence, total death
sentences imposed leveled off at about 300 each year while
juvenile death sentences fell to about three or four each year
and now show signs of rising slightly. In any event, juvnile
death sentences comprise only a very small portion --
considerably less than five percent -- of total death sentences
in any period of time.
Table 4 assigns these 101 recent juvenile death sentences to
the states in which they were imposed. Finding Florida as the
leader in this practice is not surprising since Florida is a
leading death penalty state in general. ?2 However, Texas,
another leading death penalty state, 23 is close behind, even
though it has had a minimum age of seventeen for its death
penalty during this era.>4 Thus, all fourteen of the Texas
"juveniles" sentenced to death since 1973 were age seventeen at
the time of their crimes and are counted in this compilation
solely because age eighteen is the cutoff for this research. °°
TABLE 4
JUVENILE DEATH SENTENCES BY STATE AND
CHARACTERISTICS OF THE OFFENDER, 1973-1990
Race of Sex of Total Total
Offender Offender Age at Crime Juvenile Juvenile
State B H W Uk M F 15 16 17 Sentences Executions
AL 4 0 4 0 7 1 1 4 3 8 0
AZ 0 2 0 0 2 0 0 1 1 2 0
AR 1 0 0 0 1 0 1 0 0 1 0
FL 4 011 4 19 0 2 5 12 19 0
GA 3 0 6 0 8 1 0 0 9 9 0
IN 2 0 41 0 2 1 1 0 2 3 0
KY 1 0O 1 0 2 0 1 0 1 2 0
LA 7 QO O O 7 0 2 2 3 7 1
MD 2 0 1 0 3 0 0 0 3 3 0
MS 4 0 2 0 5 1 0 3 3 6 0
MO 1 0 1 0 2 0 0 1 1 2 0
NE 1 0 0 0O 1 0 0 1 1 2 0
NV 1 0 0 0 1 0 0 1 0 1 0
NJ 1 0 0 0 1 0 0 0 1 1 0
NC 3 0 2 0 5 0 1 0 4 5 0
OH 3 0 0 0 3 0 0 1 2 3 0
OK 0 0 5 0 5 0 1 2 2 5 0
PA 5 0 1 0 6 0 1 2 3 6 0
sc 1 0 1 0 2 0 0 0 2 2 1
TX 7 1 6 0 14 0 0 0 14 14 2
WA 0 0 1 0 1 0 0 0 1 1 0
TOTALS: 51 3 43 4 97 4 11 23 £467 101 4
In the eighteen years from 1973 through 1990, twenty-one
states actually imposed death sentences on youths for crimes
36 These juvenile death
committed while under age eighteen.
sentences were imposed in 101 separate instances upon a total of
eighty-seven different juvenile offenders.2’ of these eighty-
seven juvenile offenders, eight received two death sentences, one
received three death sentences, and one received four death
sentences. 28
Each of these multiple-death sentenced juvenile
offenders had their original death sentence overturned on appeal
and then were resentenced to death after a new sentencing
hearing.
Well over half of the juvenile death sentences imposed have
been for minority offenders, two-thirds of whom have been age
seventeen at the time of their crimes. The particularly rare
sentences are those of the four juvenile who are girls and of the
eleven juveniles who were only fifteen-years-old when they
committed their crimes. Doubly rare was that of Paula Cooper, a
fifteen-year-old girl sentenced to death in Indiana. ??
Suspicions of racial bias arise for several of the states.
Particularly striking is Louisiana, sentencing only black
juvenile offenders to death. This theme is exascerbated by the
fact that all seven of these black juveniles killed white
victims, had white judges and all white juries.4° Perhaps it is
just business as usual, since all eight persons previously
executed in Louisiana for juvenile crimes were black males whose
victims, judges, and jurors were all white.41 Also of concern
are such states as Arizona, which has sentenced to death only
hispanic juvenile offenders in the current era and has executed
only hispanic juvenile offenders in its history.
C. Juvenile Offenders Currently on Death Row:
Of these 101 juvenile death sentences imposed since 1973 on
eighty-seven offenders, only thirty juvenile offenders remained
on death row as of October 1, 1990.42 Eleven states were then
43
holding such persons. These thirty condemned juveniles
constitute only 1.3% of the total death row population of
44
approximately 2,400. Sixty-six of the 101 death sentences for
juvenile offenders during this time period have already been
45
reversed, with four others resulting in an execution. Over a
longer period the sentence reversal rate for juvenile death
sentences is even higher, probably around 90%. 46
For example,
considering only the seventy juvenile death sentences which have
been disposed of in final terms, four (6%) have resulted in
execution and sixty-six (94%) have resulted in reversal.
All thirty juveniles offenders now on death row are male and
were convicted and sentenced to death for murder.*/ The
demographic characteristics of the thirty juveniles and their
thirty-nine victims are presented in Table 5.
TABLE 5
CHARACTERISTICS OF OFFENDERS AND VICTIMS IN JUVENILE @
DEATH PENALTY CASES IN FORCE AS OF DECEMBER 31, 1990
Offenders
Age at Crime Race
15 = 2 (73) B= 14 (47%)
16 = 6 (20%) H= 1 (3%)
17 = 22 (73%) W= 15 (50%)
30 (100%) 30 (100%)
Victims
Age Race Sex
Under 18 = 3 (8%) B= 10 (26%) M= 17 (44%)
18 to 49 = 27 (69%) H= 1 (3%) F = 22 (56%)
50 & over = 9 (23%) W= 28 (72%) 39 (100%)
39 (100%) 39 (100%)
For the thirty juvenile offenders still on death row, almost
three-quarters of them were age seventeen at the time of their ©
crimes. The two who were only fifteen years old at the time of
their crimes present problematic cases, given the constitutional
barring of the death penalty for fifteen-year-olds by the United
States Supreme Court’s decision in Thompson v. Oklahoma.*® one
of these fifteen-year-olds is Troy Dugar in Louisiana, sentenced
to death on May 1, 1987, well before Thompson was decided. 4?
Once this issue is litigated fully in his case, Dugar presumably
will have his death sentence removed. The other fifteen-year-old
is Clayton Joel Flowers in Alabama, sentenced to death on
February 23, 1990, well after the Thompson decision.°° In the
Flowers case it appears that the trial court is attempting to
challenge the Thompson ruling in the hope of getting the Supreme
Court to reconsider Thompson. >+
At the other end of the age spectrum are five of these
juvenile offenders who are now in their early thirties. The
oldest is Jose Martinez High at age thirty-two, although his age
has been challenged and he may be age thirty-three. >? James
Morgan in Florida was age sixteen at the time of his crime on
June 6, 1976, and is now age thirty. His fourth death sentence
was imposed on February 2, 1990, his three previous death
sentences for this crime having been overruled on appeal.°4
Of the thirty juvenile offenders on death row, fifteen or
50% of them are white. Compare this to the total death row
population of which 50.5% were white.°> Blacks constituted 47%
of juvenile offenders on death row and 39.4% of the total death
56
row population. Hispanics were 3% of the juveniles and 6.8%
overall.>’ all juvenile offenders on death row are male while
98.6% of the total death row population is male. 8
In contrast to the data for juvenile offenders, the data for
their victims indicate that nearly three-quarters of them were
white, over two-thirds were adults between eighteen and forty-
nine, and 56% of them were women. Precise comparable data for
the total death row population are not available but it seems
likely that they are quite similar to those for the juvenile
offenders.
II. NEW YORK STATE HISTORY OF THE JUVENILE DEATH PENALTY
A. New York’s Death Penalty Leadership
By any measure, the State of New York has occupied a
position of death penalty leadership nationally throughout its
history. William Bowers’ encyclopediac compilation of executions
under state authority lists 695 in New York from 1890 through
1963, well ahead of second-place California with 502 and third
59 Watt Espy’s signal, ever-growing
place Georgia with 422.
compilation of all executions in American history has reached
17,000. © In Espy’s list, New York is second only to Virginia in
total executions. And there are other execution compilations,
but in each one New York emerges at or very near the top of those
states relying upon the death penalty as a criminal sanction.
Despite its current absence from the ranks of death penalty
states, New York also ranks high among states which have executed
61
juvenile offenders. The out-of-reach leader is Georgia with
forty-two, but second place is held by New York, North Carolina,
h. ©2
and Ohio with nineteen eac Brief information about New
York’s nineteen executed juvenile offenders is presented in Table
6. ©3
10
TABLE 6
NEW YORK EXECUTIONS OF JUVENILE OFFENDERS
Date of Name of Age at Race/ Location
Execution Offender Crime Sex of Crime
Feb. 9, 1767 Venus 17 BF New York
July 25, 1817 Tuhi, John 17 AIM Paris
July 25, 1838 Baron, Octavius 17 WM Rochester
July 26, 1844 Denny, George 17 WM Putnam Co.
July 10, 1888 Deacons, Edward 16 WM E. Rochester
Aug. 26, 1926 Brescia, Cosimo 17 WM Brooklyn
Aug. 26, 1926 Garguila, John 18 WM Manhattan
Apr. 25, 1935 Pluxdrak, Stanley 16 WM Erie Co.
Jan. 21, 1937 Fowler, Frederick 17 BM Brooklyn
Jan. 26, 1939 Guariglia, Dominick 17 WM Manhattan
Sep. 17, 1942 Edwards, Lawrence 17 BM New York
July 8, 1943 DeJesus, Benitez 18 BM Harlem
July 8, 1943 Diaz, William 17 BM Harlem
July 8, 1943 Haight, Edward 16 WM Bedford
Aug. 31, 1944 Bing, Lew York 16 AM Manhattan
Jan. 8, 1948 Jackson, Jauvham 17 BM Kings Co.
Feb. 10, 1955 Matthews, Henry 16 WM Manhattan
Jan. 12, 1956 Byers, William 17 WM Manhattan
Jan. 19, 1956 Royne, Norman 16 BM New York Co.
Following are more detailed descriptions of five cases which
are broadly representative of New York’s executed juvenile
offenders. Included are the first (Venus) and almost the last
(William Snyder Byers), the only multiple murder (Edward Haight),
one of the youngest (Edward Deacons), and the only girl (Venus).
The descriptions of these cases are based upon a variety of
sources, some of which are reasonably reliable and some of which
are somewhat questionable. Every effort has been made to verify
and cross-check the information provided, but readers’ should
treat at least some of this information as simply the best
information now available. Skepticism is particularly warranted
when the source of the information is a newspaper story at the
time of the events, since there is no reason to believe that
media coverage of current events is any more accurate or lacking
11
in creative fictionalizing than is the case today.
B. Venus; February 9, 1767°4
Little is known about the first lawful American execution of
65
a female juvenile for her crimes. The newspapers of the day
referred to her as the Negro Wench, one referring to her as
66 and another judging her to be about 17 years of age®’,
Venus
Her crimes were the burglary and theft of several articles from
the house of a Mr. Forbes, a resident of New York city. 8 While
no date for the crime could be found, an informed estimate is
that it occurred in late December, 1766, or in early January,
1767.
Sometime during the week preceeding January 29, 1767, the
trial court in New York City imposed death sentences on four
offenders: Isaac Crawford, Phillip McCarroll, John Williams, and
69 News stories about these four condemned
a Negro Wench.
prisoners give the clear impression that the story of Venus and
her capital crimes would have received little if any media
attention if her sentence and execution had not coincided with
those of these (apparently) white males. Other than this brief
70 about the announcement of her death sentence, no
note
information could be found about her trial.
Concordant with the common practice of the American criminal
justice system in the eighteenth century, apparently no formal
appeals were taken from this trial court judgment and sentence.
The media did report, however, an intercession with presumably
the trial judge by the Reverend Doctor Auchmuty, resulting in a
delay in the execution date of these four prisoners (including
12
Venus) from February 2, 1767, to February 9, 1767. /1 Dr.
Auchmuty’s intercession was intended to allow the four to receive
appropriate religious instruction to prepare them for their
executions. /2
Pursuant to this prescribed religious instruction, Dr.
Auchmuty "preached a sermon"’3 to them on Friday, February 6,
1767. Adding to this was the "Exhortation, with prayer and hymn"
given to them on Sunday, February 8, 1767, by Reverend Ogilvie,
Curate of the Trinity Church. 74
On Monday, February 9, 1767, at about 11:00 a.m., Venus and
her three fellow prisoners were hanged on a specially built
gallows "near the fresh water."75 The description of the scene
was characteristically brief: "They spoke very little at the
Gallows, only confessed that they deserved the Punishment they
were brought to, and desired that others might take Warning by
their unhappy Fate; notwithstanding which example, a Man had his
Pocket Book stole at the Execution."/®
C. Edward Alonzo Deacons; July 10, 1888//
Edward Deacons was only one month beyond his sixteenth
birthday when he committed his capital crime. 78 Already at such
an early age he was an itinerant tramp going door-to-door to ask
79
for handouts. He never lived to see his’ seventeenth
birthday. ®°
Deacons was the youngest son and the self-described "pet" of
a white family about which little is known.®! It is known that
he had a difficult childhood®? and that his time as a tramp gave
him an appearance and language suggestioning maturity beyond his
13
years. 83 He also came to enjoy excursions beyond the truth as a
sort of private game. 84
At just before 3:00 p.m. on August 16, 1887, Deacons knocked
on the door of Mrs. Ada Stone on Hayward Avenue in East
85
Rochester, New York. Her husband was away at work but her
86
young son was home with his mother. When Stone refused
Deacons’ request for food an argument ensuead.?’ The prosecutor
was later to claim that Deacons attempted to rape®® Stone but no
physical evidence ever substantiated that theory and Deacons
89
denied it. It is known that Stone slapped and insulted
90
Deacons, sending him into a rage. His response was to hit her
several times with the walking stick he carried and then to choke
91
her severely. As he carried her unconscious body down to the
cellar she recovered and renewed the struggle. ?2 He then tied a
flour sack tightly around her neck and she quieted. 93
Deacons claimed that Stone was still alive when he left her
94
in the cellar. However, she was dead when her husband found
her that evening after work. ?° By that time Deacons had jumped
another freight train to Canandaigua, New York, where he spent
96
the night sleeping in a box car. The police investigated the
crime immediately and thoroughly, first questioning and then
arresting the victim’s husband. ?/ Further questioning and
investigation resulted in his release two days later. 78
Deacons was arrested for being a tramp as he slept in the
box car in Canandaigua on the night following the murder. 2?
Given the nature of the crime in East Rochester, Deacons was
00
taken back there for questioning.1+ He finally confessed on
14
September 6, 1887, followed by many other confessions at later
101
dates. He even composed his confessions into simple verses
for his own amusement and to the astonishment of the police, the
prosecutor and the newspaper reporters. 192
Deacons was indicted for murder by a grand jury on October
25, 1887, and arraigned on that indictment on October 27th. 193
The judge appointed lawyers to represent Deacons and his trial
began on January 30, 1888.194 Many witnesses testified to having
seen Deacons in East Rochester on the day of the crime? and his
confessions seemed to seal his guilt.1%6 Undaunted, Deacons
testified that he was innocent, denying his many previous
confessions and calling all of the state’s witnesses liars.1°’
He was convicted of murder and his sentence of death was imposed
on February 10, 1888.98
The New York Court of Appeals affirmed his conviction and
sentence on May 4, 1888.99 That court first held that Deacons’
confessions of murder were lawfully admitted into evidence by the
¢,110
trial cour Deacons had confessed repeatedly to police
officers, to the prosecutor, and to newspaper reporters
apparently with no threats made to him by anyone. 111 Further,
the prosecutor "explicitly refused to make any promises
nwl1l2
whatever, so Deacons’ claims of coerced confessions were
rejected.
The Court of Appeals found ample evidence in addition to
Deacons’ confessions that Mrs. Stone had been murdered, most of
this evidence coming from her boay.213 The court also approved
of the felony-murder theories presented to and apparently found
4
by the trial jury.11 Here the felonies were (1) a nonconsensual
15
entering of a building by a tramp and (2) a threat of personal
injury by a tramp.115 The Court of Appeals found that the trial
jury could have believed either to have been proven by the
evidence. 116
Finally, the Court of Appeals rejected numerous
objections by Deacons to evidence admitted at trial and found
that Deacons’ detailed knowledge of the crime scene could only be
explained by the conclusion that Deacons had committed the
crime.117
Interestingly, Deacons’ age of just over sixteen at the time
of the crime was evaluated not as to whether he was old enough
for imposition of the death penalty but as to whether he was old
enough to be a tramp.218
The statute and the court focussed upon
a requirment that a person be at least sixteen years old to be
mature and responsible enough to be eligible to be classified as
a tramp, but this same analysis was never applied to any minimum
age to be mature and responsible enough to be eligible for the
death penalty.
On June 4, 1888, the trial court set Deacons’ execution date
for July 1oth.119 Governor Hill refused to intervene with
120
clemency, invoking a bravado laugh from Deacons. The evening
before his execution, Deacons was visited by his sister, Mrs. Van
Schouten.121 That night he ate fruit and lemonade and played
122 The fruit gave him severe
123
"Home Sweet Home" on his harmonica.
indigestion and he had to refuse breakfast the next morning.
At 10:00 a.m. on July 10, 1888, he was led to the scaffold,
accompanied by the sheriff and two Catholic priests.124 He had
joined the Catholic church while awaiting his execution.?2> He
16
was defiant to the end: "Friends, the law is about to take the
life of an innocent man. That is all I have to say."126 His
arms were pinioned to his sides and the drop fell at 10:24
127
a.m.. He was pronounced dead fifteen minutes later.128 His
sister took custody of the body and attended to his burial at
Mount Hope Cemetary.129
Was the death sentence a greater deterrent than life
imprisonment in Deacons’ case? Consistent with the general
research findings on this issue, 30 Deacons’ personal view was
clear: "I had rather be hung than sent to prison for life."131
D. Dominick Guariglia; January 26, 1939132
Dominick Guariglia was a young Italian boy who grew up ina
rough neighborhood on the east side of New York city.133 At age
fifteen he had been arrested for burglary but the charges had
been dismisseda.134 By the time he was seventeen he was involved
with a gang of hoodlums (dubbed the "East Side Boys") 139 several
years older than he was and reflecting a variety of ethnic
surnames (Chaleff, Ertel, Friedman, O’Laughlin and Zimmerman) .136
Probably the perpetrators of a series of robberies, 137 their last
robbery went wrong and cost four people their lives.
Cafe’ Boulevard, a late night restaurant at 144 Second
Avenue, had been the target of a robbery and had been given
138
special police protection. Two weeks later, at 3:15 a.m.,
Friday, April 10, 1937, plain clothes Detectives Foley and
Gallagher were sitting at a table near the entrance with the
139
restaurant owner. Four males, including Guariglia, entered
the restaurant with guns drawn.149 petective Foley reached for
17
his weapon and was shot to death by O'Loughlin. 241 Detective
Gallagher then wounded O’Loughlin and a gun battle ensued. 242
Guariglia was arrested along with Friedman at the scene.14?
O’Loughlin escaped from the restaurant but was arrested at a
144
hospital a short time later. Chaleff and Zimmerman were
arrested soon thereafter and over a year later a sixth man,
Ertel, was arrested. 145 Guariglia was held without bail and soon
was indicted along with the others on a felony-murder charge. 146
They confessed and came to trial in the Court of General Sessions
147
of New York County. Their prosecutor was a politically
ambitious district attorney by the name of Thomas E. Dewey, 248
later governor of New York and republican candidate for the
presidency ten years after this case.
Guariglia, only seventeen at the time of the crime and the
youngest member of the gang by several years, relied upon the
149
defenses of duress and mental incapacity at his trial. He was
convicted and sentenced to death, as were the other members of
0
the gang.1° On December 9, 1938, the New York Court of Appeals
summarily affirmed their convictions and death sentences.1°1 the
executions were scheduled for six weeks later at Sing Sing
prison.1°2
Strong efforts were made with the governor for clemency, led
by an ad hoc group known as the Joint Committee to Aid the Five
53
East Side Boys.2 Their mothers sat in the front row in
hearings before the governor and a petition was presented with
154
35,000 signatures. There efforts were 40% successful.
Chaleff and Zimmerman had their sentences commuted to life but
Guariglia, Friedman and O’Loughlin were not spared. 1°95
18
At 11:06 p.m., January 26, 1939, Guariglia was executed at
156
the age of eighteen. He died inbetween the executions of
157
Friedman and O/’Loughlin. Guariglia prayed with the Catholic
158
prison chaplain on the evening of his execution. As he was
being strapped into the electric chair, he smiled but said
nothing.1°9
E. Edward Haight; July 8, 1943169
Edward Haight was a troubled high school dropout, only
sixteen years old but appearing older, being six feet tall and
161
muscular. A dark complexioned caucasian, he had a history of
stealing cars and trying to escape from the pursuing police.1®2
He bragged of an exploit two years earlier, in which he and a
friend had tied a girl to the front bumper of a car and drove her
163
around for an hour. He also told of having filled a fountain
q, 164
pen with his own bloo At age fourteen, he was examined by
psychiatrists who understandably advised close supervision for
several years. 165
Haight’s family life in Stamford, Connecticut, had been
166
chaotic. His uncle had been in Sing Sing Prison for ten years
and his father had already spent several long terms in various
prisons.1°7
When Haight was thirteen, a fire destroyed his house
and killed his mother.1®8 He and the other two Haight children
began living with a series of foster parents, but he "found
neither stability, security nor parental love in any of these
substitute homes".?®9 all of this contributed to Haight’s early
stage of psychosis and total lack of moral values.1/°
Late on a Sunday evening, September 13, 1942, Haight stole a
19
171 He
station wagon in Stamford and began a search for a woman.
pulled over a woman on the Merritt Parkway and announced his
intentions but was frightened off by her dog in the back seat.172
He then tried to pick up a woman walking home from work but was
173
also rebuffed. By Monday evening, September 14th, he was
getting somewhat desparate.174
At about 6:30 p.m. that evening, Haight was driving around
near Bedford Village, New York, and saw two white girls walking
along the street.175
The girls, eight-year-old Helen Lynch and
her seven-year-old sister Margaret, had been playing that
afternoon at a friend’s house near their home.1/76 The Lynch
girls and their two sisters lived with their father in Bedford
Village, their mother being confined to a hospital with
177 Haight enticed the girls to ride with him in
178
tuburculosis.
his car and they were never seen alive again.
Haight apparently tried to rape the girls, at least the
eight-year-ola.179 Unsuccessful, he beat them and tied them
0
up.18 Sometime during that night, he threw Margaret Lynch into
the Beaver Dam Brook and Helen Lynch into the Kensica
Reservoir.281 Both girls died from drowning. 182 Their father
had called the police but a search, joined by the New York and
Connecticut police, the Federal Bureau of Investigation and
hundreds of townspeople, produced no immediate results. 183
Haight went home, abandoning the stolen car on the way. 184
The stolen car was found the next day and it provided
185
several clues as to the thief’s identity. That afternoon,
three children wading in the Beaver Dam Brook found Margaret
20
Lynch’s body. 186 Evidence from the car and her body led the
police to arrest Haight at his Stamford home at 7:00 p.m. on
Tuesday, September 15th. 287 He still had the gas ration book
with him from the stolen car he had abandonea.188 Two hours
later, he confessed to the crimes and led police to the body of
Helen Lynch. 289
Haight waived extradiction and was taken from Connecticut to
White Plains, New York, for criminal proceedings. 199 He was
indicted immediately for two counts of kidnapping and two counts
191
of murder. Examination by two state psychiatrists found him
to be competent to stand trial.192
He was arraigned on September
24, 1942, and his appointed defense counsel was given one month
to prepare for trial.193
That trial began on October 26th in White Plains.194 a jury
of six men and six women were selected and the state began
presentation of their considerable evidence against Haight. 19°
The sole defense was that of insanity, resting upon the testimony
of one psychiatrist called by Haight’s attorney.1??® This was the
only defense witness, since Haight’s attorney changed his mind
about putting Haight on the witness stana.197 In his closing
statement to the jury, Haight’s attorney summarized his position:
"I do not ask you to turn this unfortunate boy out. I ask you to
return a verdict of not guilty by reason of insanity, so he can
be placed in an institution where he belongs. "198
The jury received the case just before 5:00 p.m. on November
5th and had decided the case by 6:30 p.m.199 Their verdict was
guilty as charged, carrying with it a mandatory death penalty. 29°
On November 17, 1942, the judge imposed that automatic
21
201
sentence. Haight was reported to have worn a “half-wistful,
en, 202
other-world smil The case was not over yet, as review by
an appellate court was also automatic in death penalty cases. 793
This appeal was argued on April 15, 1943, before the New
York Court of Appeals. 2° That Court affirmed Haight’s
conviction and sentence six weeks later without opinion,
apparently finding nothing of significance to discuss. 295
Following this were seven months of continued attempts to gain
judicial review and to gain clemency from Governor Thomas E.
Dewey. 296 None were to bear fruit.
Haight spent the time on Sing Sing’s death row as a lonely
seventeen-year-old boy. 297 He passed the time by eating, gaining
thirty pounds in the eight months between trial and execution. 298
On July 7, 1943, he seemed anxious but philosophical: "I guess
this is my last day and I am only seventeen. I wish somebody
1209
would come and visit me. I’d like some company. Haight was
executed at Sing Sing at 11:06 p.m. on July 8, 1943, 210
F. William Snyder Byers; January 12, 1956; New York: 211
William Byers, also known as William Snyder, 222 was a
seventeen-year-old New York City kid who had been expelled from a
public high school and a private academy for truancy. 213 Still
living with his mother, he became quite upset when he learned he
214 otherwise, he seemed to be passive
215
was an illegitimate child.
and somewhat aimless but also attractive and a good dancer.
It was this last attribute that caught the attention of Theresa
Gresch, 71° a fifteen-year-old high school sophomore living
nearby.217 Byers and Gresch began a long love affair, "not quite
22
children playing with adulthooa".21®
Theresa Gresch lived with her mother in a third floor cold
water flat at 199 Avenue B in a slum area of Manhattan. 229
Her
father was dead and her mother worked two jobs to support
them.229 srs. Gresch, age forty-three, worked in a shoe factory
during the day and cleaned for people most evenings. 721 Her
young daughter had the apartment to herself after school and
222
through the evening. Gresch liked to invite Byers over each
evening and entertain him as she saw fit.?23
On the evening of February 25, 1954, the young couple lost
track of the time.?24 mrs. Gresch came home from her cleaning
job and caught them together in bea.225 Mrs. Gresch threw the
embarrassed Byers out and lectured her chagrined daughter about
226
her behavior. Of course, as Mrs. Gresch continued to work day
and night, she was unable to exercise any meaningful control over
her daughter’s behavior. 227
The nightly assignations of the young couple continued,
apparently with Mrs. Gresch’s knowledge and hopes for the
t,228
bes She began a pattern of noisily entering the apartment
when she arrived home, and this unspoken agreement to warn them
229
worked for a few days. However, on the evening of March 4,
1954, 730 she neglected to "warn" them and again caught them in
bed together. 231
Byers was outraged at her intrusion on their love-making. 232
He argued with Mrs. Gresch in her small kitchen and then knocked
her unconscious with a hammer.?23 Not satisfied, he stabbed her
twenty-one times in the chest and abdomen with a kitchen
23
234
knife. Later asked why he killed her, Byers said he had been
humiliated by her catching them in bed: "She embarrassed us". 23°
Byers and the victim’s daughter then devised a bizzare means
of hiding their crime. They recruited a teenage boy who lived in
the next apartment to help them place the body into the kitchen
washtub and encase it in plaster of paris, believing this would
hide the body and prevent it from decaying. 2? Satisfied with
their solution to this annoying problem, they locked the door to
the kitchen and used Mrs. Gresch’s hard-earned wages to go on a
237
shopping spree. They held raucous parties in the apartment
238
for the next four nights. When their reveling guests asked
why they were locked out of the kitchen, Byers and Gresch joked
about her mother’s body being in there. 239
After the four days and nights of partying, Byers left for
240
the Marine Corps. Gresch continued to live in the apartment,
rearranging the furniture to her liking and playing out her
241
fantasy of the single woman in New York. With Byers away and
unavailable for continued partying, she recruited the previously
242
helpful neighbor boy to take Byers’ place. After two weeks
the stench from the victim’s body could no longer be ignored by
243
the neighbors. They alerted the police who discovered the
bizarre scene in the kitchen on March 26, 1954,244
Gresch was arrested immediately as an obvious suspect. 24°
An Assistant District Attorney questioned the fifteen-year-old
girl for twelve24® to twenty-four?4/ hours and finally got her to
248 249
make a statement. She blamed the entire matter on Byers.
Arrested soon thereafter at Paris Island, Byers was interrrogated
250
and confessed after twenty minutes. He was brought back to
24
251
New York for further criminal proceedings.
Byers and Gresch were indicted on April 7, 1954, for first
degree murder. 2°2
Their trial was delayed by a variety of
pretrial maneuvers by their individual lawyers. Both defendants
received psychiatric examinations at Bellevue Hospital and were
found mentally competent to stand trial.?>3 Byers tried at first
to renew his relationship with Gresch and joked about his fate in
a letter to her while awaiting trial: "If I do get the electric
chair, I hope that they do not burn me too badly. Maybe medium
rare, or well done, but not toa crisp".2>4
He was not able to regain his former place in his
codefendant’s eyes. Their trial finally began on January 4,
1955.29 They were tried together but had had a falling out and
seldom even glanced at each other.2°© Each seemed determined to
put the blame on the other.2°>7
Gresch stuck by her original statement that Byers had killed
her mother and her only involvement was in helping to clean up
258
the mess. Byers repudiated his original confession and
testified that Gresch was the murderer and that he only helped
clean up. 2°? When asked why he originally had admitted he killed
the victim, he responded: "Well, I tried to protect Terry when I
told the first story. But I can’t die for her", 260
Defense counsel attempted to prove that their clients were
insane at the time of the crime but had little evidence on which
to base such a claim.?°1
During the trial, defense counsel saw
the trial judge as biased and hostile toward their clients,
interrogating the defendants and other witnesses as if he were
25
262
the prosecutor. This same judge had summarily rejected all
263
women jurors on the special jury panel. On February 10, 1955,
the all male jury convicted Byers of first degree murder and
Gresch of second degree murder .2°4
The judge formally entered
judgments on Februarly 10, 1955.265
Gresch was sentenced to serve twenty years to life in
266
prison. But this was better than the fate of her former
boyfriend, Byers, for whom the first degree murder conviction
h, 267
mandated a sentence of deat Attempts at appellate relief
delayed his execution but only for a short period of time.2°8 on
appeal, Byers’ attorneys apparently made a variety of arguments,
ranging from bias and hostility of the trial judge to
inadmissability of statements and confessions.2©9 The court of
Appeals simply listed these various arguments and then, without
addressing them in their opinion, announced "Judgment of
conviction affirmed."*79° on December 1, 1955, the New York Court
of Appeals affirmed Byers’conviction and sentence, scheduling the
execution for five weeks later.?/1
On January 12, 1956, Byers was electrocuted at Sing Sing
prison.272 He died at 11:04 p.m. on that evening at the age of
nineteen. 27? Accompanied by a Catholic priest,*/4 "he went to
his death at a slow, indifferent trot, chewing bubble gum", 275
III. CONSTITUTIONALITY IssuES?7®
The juvenile death penalty hid behind the skirts of American
capital punishment for three and one-half centuries*’’ before
being dragged front and center to endure constitutional scrutiny
by the United States Supreme Court. Then in less than twelve
26
months that Court twice addressed this issue squarely,278 having
bypassed it or overlooked it so often before.
In approaching the juvenile death penalty issue, the Court
had as its measuring stick a well-established, detailed approach
for applying the specific requirements of the eighth amendment to
the pesky problems of capital punishment. This section examines
the Court’s faithfulness to that established eighth amendment
jurisprudence as it tried to fit it to children. First explored
is the Court’s tentative pokes at the issue and then the Court’s
analytical scheme for eighth amendment analysis of capital
punishment issues generally. Next, how has the Court tailored
this analysis to fit juveniles?
A. Pre-1988 Dicta
The Court’s attention to capital punishment issues during
the past twenty years is well-known and widely reported, making a
detailed presentation unnecessary here. The constitutionality of
capital punishment had never been seriously questioned by the
Court prior to this period.?/9 Beginning in 1972, the Court
produced several landmark opinions which completely reinterpreted
and restated this area of law.
Furman v. Georgia, 789 the first of these cases, held that
the death penalty was unconstitutional as applied in the
particular cases then before it but did not decide whether it was
unconstitutional for all crimes and under all circumstances. The
Court’s 1976 holding in Gregg v. Georgia?®1 launched the current
era. In Gregg a majority of the Court held that the death
penalty does not violate per se the eighth amendment. 282 The
27
Court approved of the Georgia statute’s guided discretion for
consideration of aggravating and mitigating factors by the jury
in the sentencing hearing. 283
In passing the Court favorably
noted requirements that the jury consider the characteristics of
the offender, including such hypothetical questions as the
following: "Are there any special facts about this defendant
that mitigate against imposing capital punishment (e.g., his
youth,...?)."284
In a companion case to Gregg, the Court
approved of the Texas statute which provided that the sentencing
jury "could further look to the age of the defendant"28> in
deciding between life imprisonment and the death sentence. This
Texas provision would apply to offenders age seventeen and older
at the time of their crimes, since the Texas statute prohibits
the death penalty for offenders under the age of seventeen. 2786
In subsequent cases the Court continued to favor the guided
discretion statutes such as those approved in Gregg. A major
287
holding was Roberts v. Louisiana in which the Court found
unconstitutional a statute which provided for mandatory capital
punishment for the killing of a police officer. Stressing the
need for consideration of mitigating circumstances in all capital
punishment cases, the Court once again expressly mentioned the
youth of the offender as an appropriate mitigating factor and
noted that it is expressly relevant in many jurisdictions. 2788
In 1978 the Supreme Court decided two cases from Ohio which
made clear the requirement that sentencing juries and judges
consider all relevant mitigating factors proferred by the
defendant, including the youth of the offender. The lead
decision of Lockett v. Ohio?89 held that such unlimited
28
consideration of mitigating factors was constitutionally
required, in part because without such a requirement under the
Ohio statute "consideration of defendant’s comparatively minor
role in the offense, or age, would generally not be permitted, as
such, to affect the sentencing decision. "290
The companion case to Lockett was Bell v. Ohio??? in which
the appellant was only sixteen years old at the time of the
murder for which he was subsequently convicted and sentenced to
death. 292 At the sentencing hearing Bell’s attorney had
expressly argued that Bell’s youth should be considered as a
mitigating factor but the Ohio statute prohibited introduction of
any mitigating factors beyond those few expressly permitted. The
Supreme Court reversed Bell’s death sentence, relying upon the
reasoning and requirements expressed in Lockett. 793 The Court
did not reach Bell’s contention that the death penalty was
disproportionate as applied in his case (an argument that
presumably would have stressed Bell’s youthful age) since the
case had already been resolved under the Lockett reasoning. ??4
In 1981 the Supreme Court agreed to decide the specific
issue of the constitutionality of capital punishment for an
offense committed when the defendant was only sixteen years
ola.29° In its final holding, however, the Court in Eddings
avoided that constitutionality issue and instead sent the case
back for resentencing after full consideration of all mitigating
factors per the Lockett holding. ??® On the issue of the
offender’s youth the Court observed that "the chronological age
of a minor is itself a relevant mitigating factor of great
29
weight. "297
In the five-to-four decision in Eddings the majority avoided
298
deciding the constitutionality issue. In contrast and rebuke,
Chief Justice Burger (with Justices Blackmun, Rehnquist, and
White) dissented and found no constitutional bar to the death
penalty for this sixteen-year-old’s crime.299
After Eddings, the Supreme Court was asked repeatedly to
consider the constitutionality issue but regularly rejected those
300 Finally on February 21, 1987, the Court granted
301
requests.
certiorari on the constitutionality issue. Consider now
briefly the analytical framework the Court had already developed
for coping with the sort of issues presented by the juvenile
death penalty and presumably would be implementing in the cases
they agreed to hear.
B. Eighth Amendment Analytical Scheme
The eighth amendment to the United States Constitution
forbids the imposition of cruel and unusual punishments. 292 This
category of impermissible punishments did not forbid the death
penalty, apparently for adults or juveniles, when it first came
303 However, it is not a static
into effect two centuries ago.
concept but is to be re-examined "in light of contemporary human
knowledge. "394 The eighth amendment "must draw its meaning from
the evolving standards of decency that mark the progress of a
maturing society. "305 Any criminal sanction "must accord with
‘the dignity of man,’ which is the ‘basic concept underlying the
Eighth Amendment. "396
Consideration of eighth amendment challenges to specific
30
punishments is to be informed by objective factors to the maximum
possible extent: "[A]ttention must be given to the public
attitudes concerning a particular sentence -- history and
precedent, legislative attitudes, and the response of juries
reflected in their sentencing decisions are to be consulted. "297
These factors should not be weighed solely in isolation but
should be combined in a final evaluation of the acceptability of
capital punishment in a particular circumstance.
1. History and Precedent:
A brief sketch of American history provides a fairly
consistent pattern. The formal characterization of the juvenile
justice system as a system of law manifested a clear rejection of
harsh, adult punishment for the unlawful acts of children. 3798
The inappropriateness of such harsh punishments for youths was
not a new concept. It has been an informal premise of Anglo-
American criminal justice systems since prior to the beginning of
the juvenile justice system. While younger offenders may have
not had de jure benefit of less harsh punishments, research has
indicated that they did receive de facto benefits, such as
shorter sentences, special incarceration facilities, community-
based sanctions or outright commutation of criminal sentences. 299
Capital punishment of juveniles has been similarly rare in
the United sStates.319 Even when sentenced to death by a jury,
there has been a very high reversal and commutation rate for
teenagers on death row. 211
2. Legislative Attitudes
It is settled in American law that young persons do not have
31
the same legal rights, responsibilities and liabilities as do
adults. These special legislative attitudes toward youths are
reflected most vividly in the establishment of juvenile justice
systems within each state.?12
Youths within these juvenile
justice systems receive special treatment not available to adults
and are not punished for their misdeeds as adults would be for
the same acts. 213
Youths who do not obtain or who are cast out of the sanctity
of juvenile court may face adult criminal punishment for their
misdeeds. For thirty-eight jurisdictions this spectrum of adult
criminal punishment includes capital punishment. 214
However,
youths are usually given special protection even under capital
punishment statutes.
Some states have had capital punishment as part of their
criminal sanctions for many, many years but have never included
juveniles. Other states have more recently come to exclude
juveniles from their capital punishment statutes. Currently,
315 expressly exclude offenders under ages
eighteen states
sixteen, seventeen or eighteen from their capital punishment
statutes. The other eighteen death penalty states have no
minimum ages in their death penalty statutes.
3. Jury Sentencing Patterns:
Executions of persons for crimes committed while under age
eighteen has always been fairly rare, about 2.4% of all
executions in this century. 216 From this one might well conclude
that juries always have been reluctant to sentence youths to
death. And this reluctance is apparently increasing.
32
Justice Brennan’s characterization of the message from such
reluctance is compelling:
When an unusually severe punishment is authorized for wide-
scale application but not, because of society’s refusal,
inflicted save in a few instances, the inference is
compelling that there is a deep-seated reluctance to inflict
it. 327
Such a deep-seated reluctance to sentence youths to death is
manifested dramatically by jury responses as reflected in their
sentencing decisions.
4. Contemporary Standards of Decency
Criminal punishments which run contrary to popular sentiment
can and ought to be banned. 218
Leaders of legal, criminological
and social policy are coalescing to oppose capital punishment of
juveniles. The prestigious American Law Institute excluded
capital punishment for crimes commited while under age eighteen
from its influential Model Penal Code.?19 This position was also
adopted by the National Commission on Reform of Criminal Law. 229
In August 1983 the American Bar Association adopted a formal
policy opposing capital punishment for offenders who commit their
321
crimes while under age eightteen. All European countries
forbid capital punishment for crimes committed while under the
age of eighteen. 222
The United Nations endorsed this position in
1976.223 another indication of the present global attitude is
the condemnation of the death penalty by Pope John Paul II, the
first such position by any Pope in history.2?24
33
The issue in essence is not whether capital punishment is
officially authorized but whether it is acceptable to society.
Justice Brennan has put the question most succinctly:
The question under this principle, then, is whether there
are objective indicators from which a court can conclude
that contemporary society considers a severe punishment
unacceptable. Accordingly, the judicial task is to review
the history of a challenged punishment and to examine
society’s present practice with respect to its use.
Legislative authorization, of course, does not establish
acceptance. The acceptability of a severe punishment is
measured, not by its availability, for it might become so
offensive to society as never to be inflicted, but by its
use. 325
While still legislatively authorized by most United States
jurisdictions, capital punishment for juveniles is fast
disappearing throughout the world and is increasingly condemned
by leaders of American criminal jurisprudence.
5. Measureable Contribution to Goals of Punishment
Regardless of any controversy surrounding capital punishment
in general, this criminal sanction has been characterized by the
Supreme Court in its major capital punishment opinions as
achieving, to varying degrees, the goals of retribution, general
deterrence and specific deterrence or incapacitation while
obviously rejecting the goals of reformation, rehabilitation and
treatment of the offender.?° Capital punishment cannot be
34
justified, however, unless it makes a measureable contribution to
these goals since it is otherwise too harsh in comparison to
long-term imprisonment.
The Supreme Court gave specific attention to the retribution
issue in Enmund v. Florida.??’ Justice White, writing for the
majority, expressed the retribution issue in this manner:
As for retribution as a justification for executing
Enmund, we think this very much depends on the degree of
Enmund’s culpability -- what Enmund’s_ intentions,
expectations, and actions were. American criminal law has
long considered a defendant’s intention -- and therefore
his moral guilt -- to be critical to "the degree of [his]
criminal culpability."328
The retribution issue in the juvenile death penalty, then, comes
down to the moral culpability of adolescents for their crimes.
Various members of the Supreme Court have disagreed as to
the general deterrent effects of the death penalty. Justices
Brennan and Marshall have concluded that no verifiable general
deterrent effect exists.??9 Justice Stewart acknowledged the
lack of clarity in the empirical evidence but observed:
We may nevertheless assume safely that there are
murderers, such as those who act in passion, for whom the
threat of death has little or no deterrent effect. But for
many others, the death penalty undoubtedly is a significant
deterrent. There are carefully contemplated murders, such
as murder for hire, where the possible penalty of death
35
may well enter into the cold calculus that precedes the
330
decision to act.
Justice Stewart’s observations provide an excellent model for
analysis of any general deterrent effect from capital punishment
for juveniles. Given these observations and premises, it would
seem that important considerations are juveniles’ perception of
death and whether juveniles tend to act out of passion and
impulse or from cold, calculated decisions.
Proponents of capital punishment, whether for juveniles or
for all offenders, point out that at least execution of an
offender specifically deters and incapacitates that individual
331 An executed prisoner will never commit another
offender.
murder. This justification for capital punishment of juveniles
may not be so much incorrect as simply too much punishment for
too little additional result.
Capital punishment does, however, totally reject the one
sentencing alternative normally thought most appropriate for
332 Execution irreversibly
young offenders -- rehabilitation.
abandons all hope of reforming a teenager and thus is squarely in
opposition to the fundamental premises of juvenile justice and
comparable socio-legal systems.
6. Arbitrary, Capricious, and Freakish Manner
To paraphrase Justice Stewart, death sentences for juveniles
may be cruel and unusual in the same way that a juvenile being
1,333
struck by lightning is cruel and unusua Those few juveniles
selected for capital punishment are only a very small portion of
36
all juveniles who commit criminal homicides, and actual execution
of such juveniles may be so rare as to be freakish.
Extrapolating from these conclusions about adult executions,
the inference seems even much stronger for juvenile death
sentences and executions. Their even rarer and more random
pattern of occurrence leaves no alternative to the conclusion
that they are most freakishly imposed. No rational selection
process can be determined and one is left to conclude that the
basis of selection is arbitrary and capricious.
C. United States Supreme Court Decisions in 1988 and 1989:
Both of these cases confronted the Court directly with the
constitutionality of the death penalty for juveniles. In
Thompson v. Oklahoma, 234 the issue was couched as:
whether the execution of that [death] sentence would violate
the constitutional prohibition against the infliction of
"cruel and unusual punishments" because petitioner was only
15 years old at the time of his offense. 33°
In Stanford v. Kentucky??© the issue was identical except for the
slightly increased minimum ages involved: "whether the Eighth
Amendment precludes the death penalty for individuals who commit
crimes at 16 or 17 years of age."337 The key difference ended up
being these slightly higher minimum ages as the Court split as
closely as possible in these cases.
The Thompson finding of unconstitutionality came from a
338
four-Justice plurality with Justice O’Connor adding the
crucial fifth vote on narrower grounds. 229 Thompson had only
37
340
) 341
three dissenters (Justice Kennedy did not participate
The Stanford rejection of unconstitutionality came from a four-
342
Justice plurality with Justice O’Connor again adding the
343 Here there were four
crucial fifth vote on narrower grounds.
dissenters -- the four Justices who had made up the Thompson
plurality. ?44 Thus the key swing vote was that of Justice
O’Connor who made much of the different treatment among the
345
states of fifteen-year-olds versus sixteen- and seventeen-
year-olds. 746
D. Analytical Structure of Thompson Plurality and Stanford
Dissent
The Thompson plurality opinion, written by Justice Stevens,
was also signed by Justices Brennan, Blackmun, and Marshall. 247
These same four Justices were the dissenters in Stanford but
there Justice Brennan was the author and Justices Blackmun,
Marshall, and Stevens were the silent partners. 2°48 Not
surprisingly, therefore, the analytical structure and the factors
deemed most important are quite consistent between the two
opinions.
Justice Stevens’ plurality opinion in Thompson and Justice
Brennan’s dissenting opinion in Stanford both begin with the
obligatory benchmark of the "evolving standards of decency that
y.0349 These two opinions
mark the progress of a maturing societ
agree that determining such standards requires consideration of
(1) current legislation on the acceptance or rejectance of the
death penalty for offenders younger than certain age limits, (2)
jury willingness to impose death sentences on juveniles even
38
where authorized, and (3) views of informed organizations and
other nations on the acceptability of the juvenile death
penalty. 2°°
As to current legislative provisions, the Thompson plurality
had a very strong point. Every death penalty state which had
enacted a minimum age in its death penalty statute had chosen an
351 The dissent in
age of sixteen, seventeen or eighteen.
Stanford engaged in a similar statutory analysis and found
overwhelming (if not total) rejection of the death penalty for
crimes committed by affenders age sixteen or seventeen.?°2 The
Thompson plurality and the Stanford dissent also noted the many
distinctions in statutes other than death penalty statutes for
children, variously denying them adult rights and privileges or
granting them special rights and privileges not available to
adults.?°?
These two opinions also tracked together on the significance
of death sentences for and actual executions of juvenile
offenders. The Thompson plurality concluded that such sentences
were so extremely rare as to be considered generally abhorent to
juries?>4 and the Stanford dissent concluded that a sentence so
rarely imposed is unusual under the meaning of the eighth
amendment. °° Finally, both opinions based their conclusions to
some degree on the rejection of the juvenile death penalty by
almost all foreign nations and by an impressive list of informed
organizations. 2°°
By far the major difference between these two opinions and
the two analyzed below are their sense of the Court’s obligation
to engage in proportionality analyses separate from simply
39
surveying current legislation, jury sentencing, and other indicia
of societal acceptance or rejection of this penalty. The
Thompson plurality, relying upon cases ranging from Enmund v.
Florida?’ to Marbury v. Madison, 2°8 concluded that the Court is
the ultimate determiner of the limits of cruel and unusual
punishment. ?°9
But the Court is not simply to follow its own
whims. It must measure the unique culpability of juveniles and
the contribution of the juvenile death penalty to the acceptable
social purposes of that penalty. 26°
The Thompson plurality had little difficulty concluding that
juveniles’ “irreponsible conduct is not as morally reprehensible
as that of an adult."°°! This lesser culpability, coupled with a
teenager’s capacity for growth and society’s fiduciary
obligations to its children, led the plurality to conclude that
retribution "is simply inapplicable to the execution of a 15-
"362 The other major social purpose of the
year-old offender.
death penalty -- general deterrence -- was also discounted by the
plurality as inconsistent with what is known about how
adolescents contemplate the consequences of their behavior. 2®3
The Stanford dissent devotes more attention to this point
364 Justice
but comes out the same as the Thompson plurality.
Brennan’s dissent in Stanford then moves to the individual
offender’s culpability for his criminal acts, finding it "of
central importance to the constitutionality of the sentence
imposea."365 The Stanford dissent notes the many legal
366
categories premised on the immaturity of minors and rejects
the claim that the transfer from juvenile to criminal court is an
40
67
adequate screen for maturity and culpability.?
This analysis
concludes that offenders under age eighteen should be exempted as
a class from the death penalty due to their lesser moral
culpability. 768
As did the Thompson plurality, the Stanford dissent next
asks whether the sentence makes a "measureable contribution to
acceptable goals of punishment. "369 First, Justice Brennan
summarily concludes that a sentence found disproportionate
because of the offender’s lower blameworthiness "by definition is
not justly deserved."379
Consideration of the goal of general
deterrence receives a bit more attention than does that of
retribution, but Justice Brennan agrees that juveniles’
impulsiveness and sense of immortality make it highly unlikely
they will deterred by the threat of the death penalty for their
contemplated actions.3?71
Having agreed an every major point, the Thompson plurality
and the Stanford dissent not surprisingly come to almost the same
final conclusion. The Thompson plurality stopped short of
drawing the minimum age at eighteen, prudently limiting the sweep
of their opinion to a much smaller class of juvenile offenders,
372
those under age sixteen. In Stanford the age eighteen minimum
could no longer be put off, and that is where the Stanford
dissenters would draw the constitutional minimum. 273
E. Analytical Structure of Stanford Plurality and Thompson
Dissent
The opinions which directly countered the Thompson plurality
and the Stanford dissent were the Thompson dissent and the
41
Stanford plurality. Just as the previously described two
opinions had the same four signatories, these two opinions had
374
the same three signatories and even the same author. Justice
Kennedy was appointed to the Court after Thompson had been argued
and so took no part in that case.?/9
However, by the next year
when Stanford and Wilkins were argued, Justice Kennedy did
participate and joined the Stanford plurality authored by Justice
376
Scalia. Whether or not Justice Kennedy would have joined
Justice Scalia’s three-Justice dissent in Thompson is unclear but
seems likely.?77
If he had, Thompson would have been a four-one-
four decision rather than a four-one-three decision, still
arriving at the same result but perhaps with even less force and
persuasiveness. In any event, Thompson and Stanford are two
cases decided by four-Justice pluralities plus a narrow
concurrence, so neither can be said to manifest a strong,
unhesitant, uncompromising message from the Court.
Justice Scalia’s dissent in Thompson was written first so
presumably it influenced what he was to write in the Stanford
plurality opinion. In fact, the Court granted certiorari in
378 4379
Wilkins v. Missouri and High v. Zan only one day after
deciding Thompson, leading to the speculation that Justice Scalia
was instrumental in granting that certiorari. If Justice Scalia
and his co-signatories on the Thompson dissent had to swallow the
Court’s drawing a constitutional line at age fifteen (so the
speculation goes), they were determined to stop the madness
there. They obligated the Court to hear two particularly grisly
cases?80 involving offenders age sixteen and seventeen, presuming
they could get the fourth and fifth votes they needed to form a ©
42
majority rejecting claims of unconstitutionality. As it turns
381
out, they were dead right.
The Thompson dissent begins with a detailed description of
the facts, stated in a light extremely favorable to respondent
Oklahoma. 782 Progressing to the eighth amendment analysis,
Justice Scalia establishes his premise that the death penalty for
crimes committed by persons under the age of sixteen was not
prohibited by the eighth amendment when it was first passed. 383
Only then does his analysis move to the “evolving standards of
decency" to see if that original eighth amendment position has
Nevolvea", 384
Justice Scalia agrees with the Thompson plurality that any
"evolution" must be manifested primarily in action by the various
385 and juries?®® facing the issue. This Thompson
legislatures
dissent adds up the statutory positions in a somewhat different
manner than does the Thompson plurality, finding that an absence
of any minimum age provision in death penalty statutes is a
reliable indicator of a deliberate choice to permit imposition of
387
the death penalty on juveniles. It is this point that appears
to be the major issue forcing Justice O’Connor into a separate
388
concurrence in Thompson which adds the crucial fifth vote to
the four-Justice plurality, albeit on much narrower grounds than
that of the plurality.
After Justice Scalia’s Thompson dissent dismisses the
national legislative positions as manifesting no clear position
389
on this issue, it turns to the number of death sentences and
executions for juvenile offenders (particularly those age fifteen
43
and younger) in recent years. 290 Justice Scalia agrees that such
sentences and executions have been rare but characterizes this as
an understandable and laudable reluctance rather than evidence of
91
any evolved standard of decency. ? As for the significance of
the laws of foreign countries and the positions of various
informed organizations, Justice Scalia rejects them as irrelevant
to the measurement of evolving American standards of decency. 292
In the next major point, the Thompson dissent sharply parts
company with the plurality. The plurality premise that it is the
Court’s duty "ultimately to judge whether the Eighth Amendment
1393
permits imposition of the death penalty is flatly rejected by
the dissent.2?4
Justice Scalia finds that the evolving standards
of cruel and unusual punishment are "those entertained by the
society rather than those dictated by our_ personal
consciences. "39° Having concluded from analysis of statutes and
jury decisions that society has not evolved such a standard,
Justice Scalia’s eighth amendment analysis ends there. 296 He
does go on, however, to take a swipe at the plurality’s finding
397
of a lower moral culpabilty for juveniles, a theme he greatly
expands later in his Stanford plurality.?7°
It is in his Stanford plurality that Justice Scalia expands
upon most of the points he made in his Thompson dissent. The
facts of the cases -- a sixteen- and seventeen-year-old who
399 -- make his arguments
committed particularly grisly murders
more powerful here. This is particularly true in characterizing
the legislation and jury sentences for offenders ages sixteen and
seventeen in comparison to the issue of fifteen-year-olds in
Thompson. 499 Three states had express minimum ages of sixteen
44
for the death penalty in their statutes and Justice Scalia adds
those jurisdictions with no express minimum ages whatsoever on
the premise that they meant to include juveniles of any age. 401
The historical practice of sentencing and executing
offenders age sixteen and seventeen is not so rare as for
402
fifteen-year-olds. As with his dissent in Thompson, Justice
Scalia’s plurality in Stanford does not interpret such rarity to
be a clear signal of an evolving standard of decency rejecting
403
the practice. Consistent with his anaylitical structure in
the Thompson dissent, Justice Scalia’s Stanford plurality opinion
essentially ends there.
The rest of the opinion explains why nothing else
404
matters. Justice Scalia already had rejected the practices of
other nations as irrelevant to the acceptability of a practice to
the American people?99
and next rejects the minimum ages of
American statutes on non-capital punishment issues as irrelevant
to the individualized analysis uniquely required in capital
punishment cases. 496
Justice Scalia is particularly disdainful
of the positions of various professional and learned societies,
suggesting they are appropriate for legislative policy decisions
but not Supreme Court constitutional determinations. 497
Justice Scalia extends in his Stanford plurality a major
point only begun in his Thompson dissent. He emphatically
rejects the notion that the Court should refer to its own sense
of eighth amendment requirements, characterizing this as "to
replace judges of the law with a committee of philosopher-
kings. "408 Justice Scalia launches a broadside against
45
proportionality analyses based upon relative moral culpability
and measureable contributions to acceptable goals of punishment,
finding them impotent unless undergirded by a clear societal
409 and since the
consensus against the questioned penalty.
Stanford plurality finds no such consensus as the death penalty
for offenders age sixteen and seventeen at the time of their
crimes, Justice Scalia finds that such punishment is not cruel
and unusual under the eighth amendment. 419
F. Justice O’Connor’s Concurrence in Thompson and Stanford
411 sna
It was the vote of Justice O’Connor in both Thompson
Stanford’! that completed the five-Justice majority necessary to
decide the cases. Revealing excruciating difficulty in coming to
a personally acceptable decision, 413 both of her opinions
nonetheless tend to follow most of the analytical scheme of the
Thompson plurality and the Stanford dissent. Justice O’Connor
finds the same factors are essential in deciding the cases but
simply comes out differently after analyzing those factors.
In her Thompson concurrence, Justice O’Connor begins with a
survey of death penalty statutes and finds that all express
414
minimum ages are age sixteen or above. While she does go on
to consider sentencing and execution statistics as well as
415 she never loses sight of the
treaties and other information,
importance of her first finding as to statutory minimum ages.
Justice O’Connor’s proportionality analysis in her Thompson
concurrence rejects the notion that all fifteen-year-olds are
416
alike for purposes of this analysis. In the end she returns
to the legislative issue and finds that states such as Oklahoma
46
apparently have not given the minimum age issue the careful
consideration it must have.41’7 until they do, she will neither
allow such states to execute offenders under age sixteen at the
time of their crimes nor reach the broader question of the
constitutionality of the juvenile death penalty. 418
In Justice O’Connor’s Stanford concurrence the same
analytical scheme is followed but relegated to a sketchy opinion
covering less than one and one-half pages. 419 The Stanford
concurrence begins with a reminder that her Thompson concurrence
requires a specific, express minimum age in the pertinent death
penalty statute before an eligible offender can be executed
unless such execution is clearly not forbidden by a national
consensus. 429 It goes on to conclude, therefore, that these
executions in Stanford may proceed since "it is sufficiently
clear that no national consensus forbids the imposition of
capital punishment on 16 or 17-year-old capital murderers. "421
Justice O’Connor’s Stanford concurrence breaks sharply with
Justice Scalia’a Stanford plurality over the issue of the Court’s
obligation to assess the proportionality of the punishment vis-a-
vis the offender’s blameworthiness.422 While Justice 0O/’Connor
does not believe that Stanford can be resolved through such a
proportionality analysis, she agrees that the Court is obliged to
conduct a proportionality analysis as a matter of eighth
amendment jurisprudence. 423
G. Critique of Analytical Schemes
Illustrating the extraordinary closeness of the Court’s
rulings on the juvenile death penalty, Justice O’Connor’s leaning
47
one direction or the other determines both the reach of the
eighth amendment and whether these particularly youthful
petitioners may be put to death by the state. But Justice
O'Connor leaned the same direction on a key principle -- whether
in eighth amendment cases the United States Supreme Court ought
to engage in an analysis of the acceptable limits of
proportionality between the individual culpability of the
offender and the severity of the punishment imposed. She
answered the question affirmatively in both her Thompson
424 425 Combined with
concurrence and her Stanford concurrence.
the four votes in the Thompson plurality and the Stanford
dissent, this means that five Justices continue to believe that
such a proportionality analysis is obligatory in cases such as
this. The only split is that those four Justices would rule that
such an analysis resolves the question and Justice O’Connor
believes that it does not.
On the other key eighth amendment issue there is much less
clarity. In this proportionality analysis, must the Court
continue to assess whether the punishment imposed measureably
serves the acceptable goals of capital punishment? The four
signatories to the Thompson plurality and the Stanford dissent
clearly believe this to be a strong continuing requirement, but
their four opponents reject it and Justice O’Connor is strangely
silent about it. This consideration certainly has long roots in
eighth amendment cases and the scholarly literature but it may be
on the brink of rejection by the Court.
After all of the dust has settled on these two cases, they
will probably be characterized as the Court’s placing a @
48
constitutional minimum age floor under the death penalty, a floor
which never existed prior to these decisions. That the floor was
placed at only sixteen and may be temporary at that will be
remembered as a quirk of timing. If Justice Powell had not
resigned in the summer of 1987, if he had been sitting for the
Thompson case, and if he had not been replaced by Justice Kennedy
for the Stanford case, it seems reasonable to assume that the
Thompson plurality and the Stanford dissent would have been five-
Justice majority opinions. 42°
Justice O’Connor’s narrow opinions
would have been of interest to only a few nit-picking scholars,
and Justice Scalia’s radical opinions would have been only sour
grapes.
IV. APPROPRIATE CRITERIA FOR LEGISLATIVE DECISIONS
In addition to the constitutional and other legal issues
described above, any legislative body should consider a wide
range of criminological, jurisprudential, and political factors
in deliberations concerning the juvenile death penalty issue for
their statute and jurisdiction. This issue is too complex and
far-reaching to be left to lawyers. Of the many choices
acceptable under the law, only a few also can be considered
effective, consistent, and wise.
First, the choice of criminal punishment should be based
both upon the heinousness of the crime and upon the criminal
intent of the offender. This basic legal principle should inform
the naive conflict between the simplistic slogans of "old enough
to kill, old enough to die!" and "but he is only a boy!" For
crimes such as murder, Anglo-American criminal law has
49
consistently required focus upon the criminal intent of the
427 For all homicide crimes, the harm inflicted is the
428
offender.
death of an innocent person. However, the difference between
the less serious level such as negligent manslaughter*2? and the
capital level of first degree murder *?°
is typically the personal
culpability of the offender. Therefore, in deciding the basis
for imposition of criminal punishment of homicide crimes, one
must consider in part the harm inflicted but must concentrate
primarily on the criminal intent involved.
It seems generally accepted that adolescents typically do
not have an adult level of maturity and sophistication in their
431 While they can intend behavior, it is
thought processes.
unlikely they have thought about it deeply with insight and
understanding. While they may have the criminal intent required
for conviction of first degree murder, they seldom have such
intent to the fullest extent. They fall short in this critical
criterion and thus their sentence should be a little short of the
punishment for a comparable adult’s acts. Given this criterion,
they should receive long-term imprisonment instead of the death
penalty.
Second, retribution does not demand the death penalty for
juvenile crimes. The victim’s death is always tragic and gives
rise to strong emotional feeling in the community. However,
soaring anger at the misdeeds of children is always blunted
somewhat, at least for reasonable persons, by the knowledge that
children cannot be expected to behave as adults all of the
time.432 This strong if blunted need for retribution should not
50
be ignored but ought to be satisfied by long-term imprisonment.
The death penalty is simply an excessive and overly-emotional
deference to this undeniable feeling.
Third, deterrence is not enhanced by choosing the death
penalty. If the alternative is nothing or just a "slap on the
wrist," then of course the death penalty might be necessary for
adequate deterrence. However, the alternative is long-term
imprisonment, a punishment even more feared by adolescents. This
was made dramatically exemplified in Missouri’s Heath Wilkins
433
case. When the judge asked Wilkins whether he preferred life
imprisonment or the death penalty, Wilkins asked for the death
penalty. 434
The death penalty is not a greater deterrent than
long-term imprisonment to violent juvenile crime.43° The only
question left open in this regard is how long the imprisonment
must be in order to provide satisfactory deterrence, a question
answered in widely varying ways by different jurisdictions.
Fourth, the goals of reform and rehabilitation for juvenile
offenders should not be ignored. Behavior patterns change
significantly as persons mature from adolescence to adulthood and
into middle-age. All of us have mellowed in our behavior since
our teenage years and are now embarrassed by some of our wilder
behavior during that stage of life. Given long-term
imprisonment, juvenile murderers also will change their behavior,
usually to ways more acceptable to society. Imposing the death
penalty for juvenile crimes totally disregards these universally
accepted truisms about maturation beyond adolescence. Long-term
imprisonment holds out the possibility of such a destructive
teenager becoming an acceptable adult at some time in the future.
51
Fifth, the element of cost may seem less important in
matters of life and death such as these, but it is clear that
criminal justice systems cannot afford to waste any of their
funds. Therefore, many states (most recently Kansas) 436 have
rejected the death penalty because it costs many times that of
long-term imprisonment. When a state allows for the death
penalty for juveniles, it can expect many capital trials and very
few capital sentences. Capital trials are very complex and
expensive, and the appellate process following a death penalty
seems to go on forever, certainly in contrast to that usually
pursued by prison inmates. At the end of this enormously
expensive system, the state may get an occasionaly execution.
Studies of such systems have concluded that each of these
executions cost the state several million dollars, 437
obviously
much more than would long-term imprisonment.
Sixth, consider the message juveniles receive from juvenile
death sentences. The crimes they have committed are often the
killing of a person in order to solve some problem the juvenile
perceived as otherwise unsolvable. The girl with whom they
wanted to have sexual relations or the victim they wanted to rob
struggled and caused them major problems. Their solution to
their problem was to kill the person causing the problen. Now
they see government officials struggling with a problem of their
own, a person whose behavior is unacceptable to then. How do
government officials solve their problem? They kill [execute]
the person who is causing the problen. Is it wrong to kill
someone to solve a problem? It is most difficult to convince
52
teenagers not to do something if they regularly see government
officials doing it with the apparent encouragment and approval of
society. It is akin to a lecture to children about the evils of
smoking being delivered by a lecturer who is puffing on a
cigarette.
Seventh, abolition of the death penalty for juveniles is a
common ground on which death penalty proponents and opponents can
meet and agree. The acrimonious and interminable debate about
the death penalty in general has resulted in deep divisions
between the opposing camps. Such debates so often end in name-
calling and angry shouting matches relying upon bumper-sticker
Slogans for rationale. The death penalty for juveniles is a
small part of the general death penalty issue that can bring the
warring parties together at least on this point. It appears that
a majority would agree that at least this branch of the death
penalty laws should be trimmed back. If everyone can come reason
together on this small issue, avenues of dialogue and
understanding can be opened for more rational and constructive
discussion of the death penalty for adults and for the
appropriate application of criminal punishment in general.
If we put behind us the death penalty for juveniles, what
can be done about violent juvenile crime? For many the
willingness to acquiesce in the death penalty for juveniles stems
from fear and outrage about violent juvenile crime. This fear
and outrage is shared by all reasonable persons, whether for or
against the death penalty. Two answers to this problem suggest
themselves. The temporary solution is to impose long-term prison
sentences on such violent juveniles. This will insure that they
53
are reasonably mature adults and have been subjected to whatever
rehabilitative programs are available before they would ever
again be free.
The long-term solution to violent juvenile crime, or all
crime for that matter, can not come from harsh criminal
punishment, whether imprisonment or death. Given the individual
freedom in our society, the resultant ample opportunity for
violent juvenile crime, and the low probability of being caught
and punished, prevention through threatened punishment will
always be insufficiently effective.
Our society must be willing to devote enormous resources to
the search for causes and cures of violent juvenile crime, just
as we have for the causes and cures of diseases such as cancer
and polio. And, we must not demand a complete cure in a short
time, since no one knows how long it will take. Unfortunately,
no one now has the cure for violent juvenile crime. However, it
seems clear that the death penalty for juveniles has been given a
long trial period and has been found wanting. Its societal costs
are enormous and it delays our search for a rational and
acceptable means of reducing violent juvenile crime. The death
penalty for juveniles simply makes no_ sense legally,
criminologically, or morally.
V. CONCLUSIONS
So now what? It seems likely that the Court will leave the
issue alone at least for a good number of years. The fragile
coalition that was the Thompson majority has been stopped in its
tracks by the fragile coalition that was the Stanford majority.
54
And that maker of those majorities, Justice O’Connor, has clearly
returned the issue to the legislatures for a clear, express
resolution of the general issue.
Legislatures, both state and federal, were resolving this
issue in a fairly clear manner before these 1988 and 1989
decisions were handed down. The unmistakeable trend was toward
enacting an express minimum age into their death penalty
statutes, and most were choosing age eighteen. The bottom line
of Thompson in the light of Stanford is that sixteen is the
constitutional minimum for the death penalty, at least for now.
Justice O’Connor left the possibility open that if one (or
preferably more for this premise) states were to enact a minimum
death penalty age of, say, fifteen, and a national consensus
could not be shown to forbid such a minimum death penalty age,
she might find such an express statutory minimum age to be
constitutionally acceptable. 438
By far the most common age recently legislated is eighteen
but the Court has left open the constitutional options of
seventeen or sixteen as well. For most states, age eighteen fits
most logically with their overall statutory scheme for dividing
the legal worlds of childhood and adulthood. And they may feel
the constitutional heat generated by Justices Blackmun, Brennan,
Marshall and Stevens and fanned by Justice O’Connor.
Undoubtedly some state legislatures will opt for age sixteen
or seventeen. Some may read the Court’s ruling that enactment of
those ages would be constitutionally acceptable as a statement
that enactment of those ages would be a wise social policy, just
55
as some observers might read the Court’s ruling that flag burning
is constitutionally protected as a statement that flag burning is
a wise social act. Such legislatures may want to minimize
limitations on their death penalties as much as possible and
leave the widest discretion possible in local prosecutors, judges
and juries.
It seems highly unlikely that any state will take a shot at
Justice O’Connor’s loophole and try for a minimum age of fifteen
in their statute. In fact, we appear to have closed the book on
the chapter of American history that saw not only fifteen-year-
olds facing the death penalty but also their younger brothers and
sisters as young as ten and twelve.
All of this leaves New York with only a few, narrowly
limited options, and with only one clearly superior alternative.
If New York goes back to the death penalty, it’s implicit minimum
age will be age sixteen at the time of the crime since this is
the mandate from Thompson. If the statute is to have an express
minimum age (a highly preferable alternative for purposes of
clarity, legislative intent, etc.), that express minimum can be
any age between sixteen and twenty-one or presumably even higher.
The clearly superior alternative for New York is age
eighteen. It is this age that is by far the most commonly used
globally and nationally, and is the age line between childhood
and adulthood most commonly used in New York for a wide spectrum
of legal rights and duties.
Establishment of age eighteen as a minimum for any new death
penalty would place New York squarely within the almost universal
practice of the 1990s and beyond. Of course, any reintroduction
56
in New York of the death penalty for any age group would jerk New
York back into practices which last flourished in the 1930s
anywhere outside of the deep south. Such a regressive move seems
out of character for a state which represents itself as a modern,
progressive, sophisticated region. However, if adult New Yorkers
are determined to lurch backward for a nostalgic visit to a
previous era, at least they should leave their children back home
in the modern world of the 1990s and the twenty-first century.
57
ENDNOTES
* This paper is almost identical to an article entitled
"Excluding Juveniles From New York’s Impending Death Penalty," ©
accepted fro publiscation in the Albany Law Review.
*kx Professor of Law, Cleveland-Marshall College of Law,
Cleveland State University. While an effort has been made in
this article to present a wide variety of data and arguments both
for and against the juvenile death penalty, the author claims no
personal neutrality on this issue. Moreover, his attempts at
value-neutral scholarship here and elsewhere are admittedly
colored by his other role as an attorney on behalf of persons
under juvenile death sentences. Particularly relevant in regard |
to this article is his representation of juvenile petitioners
Wayne Thompson in Thompson v. Oklahoma, 487 U.S. 815 (1988), and
Paula Cooper in Cooper v. State, 540 N.E.2d 1216 (Ind. 1989).
1. At present thirty-six states plus the federal government and
the military have apparently valid and usable death penalty
statutes. BUREAU OF JUSTICE STATISTICS, BULLETIN: CAPITAL
PUNISHMENT 1989, at 4 (July 1990) [hereinafter CAPITAL PUNISHMENT
1989]; and NAACP LEGAL DEFENSE AND EDUCATIONS FUND, INC., DEATH
ROW U.S.A. 1 (Jan. 21, 1991) [hereinafter DEATH ROW, U.S.A.].
Fourteen states and the District of Columbia do not have the
death penalty, and no serious movement appears to be underway in
these jurisdictions to change that fact. See generally NATIONAL
COALITION TO ABOLISH THE DEATH PENALTY, 1990 SURVEY OF STATE
LEGISLATION (1990). ©
Although some of these jurisdictions have had bills
introduced in their state legislatures which would reinstate the
death penalty, no bill has made it out of committee in any state
legislature except in New York. Id. While New York legislative
activities of the past few years seem to be leading inexorably to
reinstatement of the death penalty, one informed and influential
observer has read the 1990 election results as making it less
likely that the New York Legislature will continue to pass death
penalty reinstatement bills. N.Y. Times, Nov. 14, 1990, at Al4,
col. 1 (editorial).
2. For simplicity and consistency, this article labels as
juveniles those offenders who commit their crimes which under age
18. While some state-to-state variation exists as to the maximum
age limit jurisdiction of juvenile courts, over two-thirds of the
states have established age 18 as the jurisdictional dividing
line. See S. DAVIS, RIGHTS OF JUVENILES sec. 2.1 (Release No. 9,
June 1989).
High profile litigation and preliminary research efforts
concerning the juvenile death penalty have spawned a recent wave
of research articles and student notes on this topic. See, e.g.
Anders & Brody, "Should Juvenile Murderers be Sentenced to
Death?," 72 A.B.A.J. 32 (1986); Ellison, "State Executions for
Juveniles: Defining ‘Youth’ as a Mitigating Factor for Imposing
a Sentence of Less Than Death," 11 L. & PSYCHOLOGY REV. 1 (1987); @
58
Frazier, "The Execution of Juveniles in Missouri (Part I)," 46 J.
MO. B. 633 (1990); Gersten, "The Constitutionality of Executing
Juvenile Offenders: Thompson v. Oklahoma," 24 CRIM. L. BULL. 91
(1988); Gwin, "The Death Penalty: Cruel and Unusual Punishment
When Imposed Upon Juveniles," 45 KY. BENCH & BAR 16 (1981);
Hartman, "‘Unusual’ Punishment: The Domestic Effects of
International Norms Restricting the Application of the Death
Penalty," 52 U. CIN. L. REV. 655 (1983); Hill, "Can the Death
Penalty be Imposed on Juveniles?: The Unanswered Question in
Eddings v. Oklahoma," 20 CRIM. L. BULL. 5 (1984); Hoffman, "On
the Perils of Line-Drawing: Juveniles and the Death Penalty," 40
HASTINGS L. J. 229 (1989); Klein, "Juvenile Criminals and the
Death Penalty: Resurrection of the Question Left Unanswered in
Eddings v. Oklahoma," 11 NEW ENG. J. CRIM. & CIVIL CONFINEMENT
437 (1985); Maynes, "The Death Penalty for Juveniles -- A
Constitutional Alternative," 7 J. JUV. L. 54 (1983); Ogloff, "The
Juvenile Death Penalty: A Frustrated Society’s Attempt for
Control," 5 BEHAV. SCI. & L. 447 (1987); Reidinger, "The Death
Row Kids," A.B.A.J., Apr. 1989, at 78; Reidinger, "Fate of the
Teenage Killers," A.B.A.J., Oct. 1987, at 88; Streib, "The Eighth
Amendment and Capital Punishment for Juveniles," 34 CLEVE. ST. L.
REV. 363 (1986); Streib, "Death Penalty for Children: The
American Experience with Capital Punishment for Crimes Committed
While Under the Age of Eighteen," 36 OKLA. L. REV. 613 (1983);
Weissbrodt, "Execution of Juvenile Offenders by the United States
Violates International Human Rights Law," 3 AM. U. INT’L. L. &
POL’/Y 339 (1988); Note, "State v. Shaw: The Status of Juvenile
Executions," 10 AM. J. TRIAL. ADVOC. 171 (1986); Note, "The
Juvenile Death Penalty: Counsel’s Role in the Development of a
Mitigation Defense," 53 BROOKLYN L. REV. 767 (1987); Note,
"Capital Punishment for Juveniles -- A Constitutional Minimum Set
by Elastic Principles," 16 CAP. U. L. REV. 655 (1987); Note,
"Thompson v. Oklahoma: A Special Place in Society for Juveniles;
Does It Include Death Row?," 9 CRIM. JUST. J. 371 (1987); Note,
"Thompson v. Oklahoma: The Law of Averages," 4 DET. C. L. REV.
999 (1988); Note, "The Decency of Capital Punishment for Minors:
Contemporary Standards and the Dignity of Juveniles," 61 IND. L.
J. 751 (1986); Note, "Eighth Amendment -- The Death Penalty for
Juveniles: A State’s Right or a Child’s Injustice?," 79 J. CRIM.
L. & CRIMINOLOGY 921 (1988); Note, "Capital Punishment for
Minors: An Eighth Amendment Analysis," 74 J. CRIM. L. &
CRIMINOLOGY 1471 (1983); Note, "The Imposition of the Death
Penalty on Juvenile Offenders: How Should Society Respond?," 10
J. JUV. L. 117 (1986); Note, "Eddings v. Oklahoma: A Stay of
Execution for Juveniles?," 9 N. ENG. J. CRIM. & CIVIL CONFINEMENT
407 (1983); Note, "Procedural Due Process for Juveniles on Death
Row: A Matter of Life and Death," 23 N. ENG. L. REV. 943 (1988-
89); Note, "Youth on Death Row: Waiver of Juvenile Court
Jurisdiction and Imposition of the Death Penalty on Juvenile
Offenders," 13 NORTHERN KY. L. REV. 495 (1987); Note, "Thompson
v. Oklahoma: Debating the Constitutionality of Juvenile
Executions," 16 PEPPERDINE L. REV. 737 (1989); Note, "Thompson v.
Oklahoma: An Analysis of the Death Penalty as Applied to
Juvenile Offenders," 34 S. D. L. REV. 762 (1989); Note, "
Thompson v. Oklahoma: The Mitigating Circumstances of Youthful
59
Capital Offenders," 25 TULSA L. J. 115 (1989); Note, "Consistency |
in the Application of the Death Penalty to Juveniles and the
Mentally Impaired: A Suggested Legislative Approach," 58 U. CIN. So
L. REV. 211 (1989); Note, "Juvenile Offenders and the Electric
Chair: Cruel and Unusual Punishment or Firm Discipline for the @
Hopelessly Delinquent?," 35 U. FLA. L. REV. 344 (1983); Note,
"Stanford v. Kentucky: Upholding Juvenile Capital Punishment --
A Confirmation of Society’s Evolving Standards of Decency?," 92
W. VA. L. REV. 205 (1989); Comment, “Death at an Early Age:
International Law Arguments Against the Death Penalty for
Juveniles," 57 U. CIN. L. REV. 245 (1988).
3. See generally R. JOHNSON, DEATHWORK 3-17 (1990); and J.
LAURENCE, THE HISTORY OF CAPITAL PUNISHMENT (1960).
4. As of August 31, 1990, a total of 17,220 executions had been
confirmed by Watt Espy, acknowledged dean of historical
executions research. Frazier, supra note 2, at 635 (citing
personal communication with Espy). Espy continues to verify past
executions and current executions continue to be carried out,
making the total at least 17,000 and climbing.
5. V. STREIB, DEATH PENALTY FOR JUVENILES 56 (1987).
6. dad. at 116-21.
7. $Id. at 121-25.
8. DEATH ROW, U.S.A., supra note 1, at 1; and "Man Who Killed 3
Women Dies in Virginia Electric Chair," N.Y. Times, Dec. 15,
1990, at A100, col. 2 (reporting 143 execution since the mid- ©
1970s) [hereinafter "Man Who Killed").
9. V. STREIB, supra note 5, at 197. ee also Thompson v.
Oklahoma, 487 U.S. 815, 832 (1988) (Stevens, J., plurality opinion).
10. V. STREIB, supra note 5, at 127-29. Pinkerton’s crime
occurred on October 26, 1979, and he was executed on May 15,
1986.
11. Prejean’s crime took place on July 2, 1977. Prejean v.
Smith, 889 F.2d 1391, 1393 (5th Cir. 1989). He was executed on
May 18, 1990. “Louisiana Executes Murderer Who Shot Trooper at
Age 17," N.Y. Times, May 19, 1990, at A8, col. 5.
12. V. STREIB, supra note 5, reported 281 executed juveniles.
Continuing research by the author has resulted in deleting one
case (anonymous white male, age 13, reported executed in 1837 in
Massachusetts) because of newly discovered documentation of
commutation of his death sentence to life imprisonment. Two
additional older cases have been documented: Venus, black female
age 17, executed on February 9, 1767, in New York City (see notes
64-76 and accompanying text, infra); and Jesse Williams, black
male age 16, executed on January 16, 1882, in Georgia. Also to
be added is the most recent juvenile execution, that of Dalton
60
Prejean on May 18, 1990. See note 11, supra. This results ina
net total of 283 juvenile executions.
13. This research seeks to document every juvenile execution in
American history, not just those which were well-known and
reported in some detail. Therefore, the older the case and the
less attention it received from the courts, the political
leadership, the media, and others, the less reliable information
is typically available about the case. Particularly with older
cases involving execution of slaves and others living on the
fringes of society, only minimal information could be found
concerning the exact age of the offender, the correct spelling of
the names of those involved, the offender’s version of what
happened, etc. Research is continuing by the author and others
to supplement this information and to correct it where errors
have been made. See, e.g., note 12, supra, and Frazier, supra
note 2.
14. Data in Table 4 are taken from V. STREIB, supra note 5, at
56; DEATH ROW, U.S.A., Supra note 1, at 6-8; and "Man Who
Killed," supra note 8.
15. James Arcene, executed at Fort Smith, Arkansas, on June 26,
1885, was age 10 at the time of his crime but had reached age 23
before being executed. See V. STREIB, supra note 5, at 82-83.
16. Id. at 57-59.
17. Id.
18. Id. at 59-62.
19. Id. at 61.
20. Id. at 65.
21. Id. at 63 indicates a Georgia total of 41 and a New York
total of 18. See note 12, supra, for subsequent additions to
those totals. See, generally, Streib, Georgia’s Juvenile Death
Penalty (Dec. 17, 1990) (unpublished paper prepared for Amnesty
International, Atlanta, Georgia).
22. 408 U.S. 238 (1972).
23. See, e.g., M. MELTSNER, CRUEL AND UNUSUAL: THE SUPREME
COURT AND CAPITAL PUNISHMENT 306-09 (1973).
24. The most marked indication of society’s endorsement of
the death penalty for murder is the legislative response to
Furman. The legislatures of at least 35 States have enacted
new statutes that provide for the death penalty for at least
some crimes that result in the death of another person.
---(AJ1l of the post-Furman statutes make clear that capital
punishment itself has not been rejected by the elected
representatives of the people.
61
Gregg v. Georgia, 428 U.S. 153, 179-81 (1976) (Stewart, J.,
opinion).
25. For a more complete description of Spenkelink’s case, see @
Streib, "Executions Under the Post-Furman Capital Punishment
Statutes: The Halting Progress From ‘Let’s Do It’ to ‘Hey, There
Ain’t No Point in Pulling so Tight’," 15 RUTGERS L.J. 443, 449-51
(1984).
26. M. MELTSNER, supra note 23, at 306-09.
27. CAPITAL PUNISHMENT 1989, supra note 1.
28. Id.
29. Comprehensive accounting of juvenile death sentences began
in 1981. See, e.g., Brief for Petitioner 19A, Eddings v.
Oklahoma, 455 U.S. 104 (1982); and Streib, Death Penalty for
Children: State Execution for Crimes Committed While Under
Eighteen (Mar. 24, 1982) (paper presented at the Annual Meeting
of the Academy of Criminal Justice Sciences; Louisville,
Kentucky; available from author). Only recently have attempts
been made to compile fairly complete data for the entire, post-
Furman era. See Robinson and Stephens, Patterns of Mitigating
Factors in Juvenile Death Penalty Cases (March 1990) (paper
presented at the Annual Meeting of the Academy of Criminal
Justice Sciences; Denver, Colorado; available from author)
(analyzing juveniles sentenced to death from 1976 to 1989); and
Streib, The Juvenile Death Penalty Today: Present Death Row @
Inmates Under Juvenile Death Sentences and Death Sentences and
Executions for Juvenile Crimes, January 1, 1973, To February 1,
1991 (Mar. 5, 1991) [hereinafter The Juvenile Death Penalty
Today] (unpublished report available from author). However, the
data from 1973 through about 1980 are still being developed and
may not be as complete for those since 1980. Table 3 includes
all juvenile death sentences documented by this research for the
entire time period, January 1, 1973, to December 31, 1990.
30. 487 U.S. 815 (1988).
31. 109 S.Ct. 2969 (1989).
32. As of Jan. 21, 1990, Florida had executed 25 persons in the
current era and had 298 persons on death row awaiting execution. |
DEATH ROW, U.S.A., supra note 1, at 5, 15-17.
33. As of Jan. 21, 1990, Texas had executed 37 persons in the
current era and had 332 persons on death row awaiting execution.
Id. at 5, 31-34.
34. TEX. PENAL CODE ANN. sec. 8.07(d) (Vernon Supp. 1982).
35. See note 2, supra.
62
36. "The Juvenile Death Penalty Today," supra note 29, at 5-8.
37. Id.
38. Id.
39. For more detailed information about Cooper’s case, see
Cooper v. State, 540 N.E.2d 1216 (Ind. 1989), and Streib and
Sametz, "Executing Female Juveniles," 22 CONN. L. REV. 3, 37-39
(1989).
40. Streib, "The Determining Racial Factor in Louisiana’s
Juvenile Death Penalty," (May 1, 1990) (unpublished paper
available from author).
41. STREIB, supra note 5, at 196-97; and Streib, supra note 40.
42. "The Juvenile Death Penalty Today," supra note 29, reports
31 death row inmates under juvenile death sentences as of
February 1, 1991. To correct this accounting to be accurate as
of December 31, 1990, for the purposes of this article, two must
be subtracted from the listing and one must be added to the
listing. To be subtracted are Ron Chris Foster in Missouri
(because he was not sentenced until January 17, 1991) and Gary L.
Graham in Texas (because a court order vacating his death
sentence was not rescinded until mid-Janaury, 1991). To be added
is Bernell Hegwood (because his death sentence was not removed
until January 18, 1991). Information about the Foster and Graham
cases can be found in id., supra note 29, at 10, 11. Information
about the Hegwood case can be found in Streib, "Persons on Death
Row as of October 1, 1990, for Crimes Committed While Under Age
Eighteen" (33rd ed. Oct. 18, 1990) (unpublished report available
from author).
43. “The Juvenile Death Penalty Today," supra
note 29.
44. DEATH ROW, U.S.A., supra note 1.
45. "The Juvenile Death Penalty Today," supra note 29.
46. Iad.
47. Id.
48. 487 U.S. 815 (1988).
49. "The Juvenile Death Penalty Today," supra note 29, at 10.
50. Donelson, "Baldwin County Teen-Ager gets Death Penalty,"
Advertiser-Journal (Montgomery, Ala.), Feb. 24, 1990, at Bl, col.
3.
51. Kahler, "Teens on Death Row Pose Ethical Dilemma," The
Times-Picayune (New Orleans), Sept. 16, 1990, at Al, col. 5.
63
52. High v. Zant, 487 U.S. 1233 (1988), granted certiorari to
High on the question of Eighth Amendment prohibition of the death
penalty for crimes committed at age seventeen. Previous courts @
had found that High’s date of birth was August 17, 1958, and that
the crime had occurred on July 26, 1976, three weeks prior to
High’s eighteenth birthday. Brief of Petitioner, High v. Zant,
U.S.S.Ct. (No. 87-5666), at 1, n.1 (citing the Trial Record at
773).
Subsequently, the Court dismissed certiorari as
improvidently granted because of evidence produced by the State
of Georgia suggesting that High may have been born in 1957 rather
than 1958, making him age 18 at the crime and rendering the
certiorari issue moot in his case. High v. Zant, 109 S.Ct. 3264
(1989).
53. Morgan v. State, 453 So.2d 394, 395 (Fla. 1984); Doup,
"Growing Up On Death Row," Sun-Sentinel (Delray Beach, Fla.),
Feb. 4, 1990, at El, col. 5.
54. Morgan v. State, So.2d (Fla. 1989); Morgan v. State,
453 So.2d 394 (Fla. 1984); Morgan v. State, 392 So.2d 1315 (Fla.
1981); Doup, supra note 50.
55. DEATH ROW, U.S.A., supra note 1, at 1.
56. Id.
57. Id. ©
58. Id.
59. W. BOWERS, LEGAL HOMICIDE: DEATH AS PUNISHMENT IN AMERICA,
1864-1982 at 46-47 (1984).
60. supra note 4.
61. V. STREIB, supra note 5, at 63.
62. Id. Since the publication of that book, one more juvenile
execution has been verified for Georgia, making a total of 42,
and one more for New York, making a total of 19. See note 12,
supra.
63. For some of the nineteen entries in Table 6, the age at time
of crime is not completely certain. Reports either differ as to
the age or provide only age at execution without a definitive
date of birth. Therefore, the ages listed are the author’s best
estimates as to age of the offender at the time of the crime.
64. This description of the case of Venus is based largely on
the author’s previous report, Streib and Sametz, "Executing
Female Juveniles," 22 CONN. L. REV. 3, 11-12 (1989).
65. Id. at 10. @
64
66. The New-York Mercury, Feb. 9, 1767, at 2, col. 2.
67. Boston Newsletter, Feb. 19, 1767.
68. The New-York Mercury, Feb. 2, 1767, at 3, col. 1; The New-
York Journal, or General Advertiser, Jan. 29, 1767, at 3, col. 2
[hereinafter The New-York Journal].
69. The New-York Mercury, supra note 68; The New-York Journal,
Supra note 68.
70. The New-York Mercury, supra note 68; The New-York Journal,
supra note 68.
71. The New-York Journal, Feb. 12, 1767, at 2, col. 3; and Id.,
Feb. 5, 1767, at 3, col. 2.
72. The New-York Journal, Feb. 12, 1767, at 2, col. 3; and Id.,
Feb. 5, 1767, at 3, col. 2.
73. The New-York Journal, Feb. 12, 1767, at 2, col. 3; and Id.,
Feb. 5, 1767, at 3, col. 2.
74. The New-York Journal, Feb. 12, 1767, at 2, col. 3; and Id.,
Feb. 5, 1767, at 3, col. 2.
75. The New-York Journal, Feb. 12, 1767, at 2, col. 3; and Id.,
Feb. 5, 1767, at 3, col. 2.
76. The New-York Mercury, Feb. 16, 1767, at 2, col. 3.
77. This case of Edward Alonzo Deacons is based largely on the
author’s previous report, V. STREIB, supra note 5, at 83-84.
78. People v. Deacons, 109 N.Y. 374, , 16 N.E. 676, 679-80
(1888).
79. The Union and Advertiser (Rochester, N.Y.), July 10, 1888.
80. Id.
81. Id.
82. Id.
83. People v. Deacons, 109 N.Y. at , 16 N.E. at 679-80.
84. Id. at , 16 N.E. at 678.
85. Id.
86. The Union and Advertiser, supra note 79.
87. People v. Deacons, 109 N.Y. at , 16 N.E. at 678.
65
88.
91.
qd. at
= ’
16 N.E. at 678-79.
The Union and Advertiser, supra note 79.
People v. Deacons, 109 N.Y. at , 16 N.E. at 678, 679.
Id. at , 16 N.E. at 678.
Id.
Id.
The Union and Advertiser, supra note 79.
Id.
Id.
Id.
id.
People v. Deacons, 109 N.Y. at , 16 N.E. at 677.
id.
The Union and Advertiser, supra note 79.
Id.
People v. Deacons, 109 N.Y. at , 16 N.E. at 678.
The Union and Advertiser, supra note 79.
People v. Deacons, 109 N.Y. 374, 16 N.E.
Id. at , 16 N.E. at 677.
Id.
Id.
Id. at 16 N.E. at 678.
= ’
dad. at 16 N.E. at 679.
= ’
66
676 (1888).
115. Id.
116. Id. at , 16 N.E. at 679-80.
117. Id. at , 16 N.E. at 680.
118. Id, at , 16 N.E. at 679-80.
119. The Union and Advertiser, supra note 79.
120.
121.
122.
123.
124.
125.
126.
127.
128.
129.
130. See infra, notes 433-435, and accompanying text.
131. The Union and Advertiser, supra note 79.
132. This description of the Dominick Guariglia case is based
largely on the author’s previous report, V. STREIB, supra note 5,
at 99-100.
133. "3 Die, 2 are Spared for Hold-up Death," N.Y. Times, Jan.
27, 1939, at 42, col. 1 [hereinafter "3 Die").
134. "Detective is Slain Battling 4 Thugs," N.Y. Times, Apr. 11,
1937, at 21, col. 1 [hereinafter "Detective is Slain"].
135. "3 Die," supra note 133.
136. People v. Guariglia, 279 N.Y. 707, , 18 N.E.2d 324, 324
(1938); "Detective is Slain," supra note 134.
137. "3 Die," supra note 133; "Detective is Slain," supra note
134.
138. People v. Ertel, 283 N.Y. 519, 29 N.E.2d 70 (1940); People
v. Guariglia, 279 N.Y. at , 18 N.E.2d at 324; "Detective is
Slain," supra note 134.
67
139. People v. Ertel, 283 N.Y. at , 29 N.E.2da at 70 (1940);
People v. Guariglia, 279 N.Y. at , 18 N.E.2d at 324;
"Detective is Slain," supra note 134.
140. People v. Ertel, 283 N.Y. at , 29 N.E.2d at 70; People
v. Guariglia, 279 N.Y. at , 18 N.E.2d at 324; "Detective is
Slain," supra note 134.
141. People v. Ertel, 283 N.Y. at , 29 N.E.2d at 70; People
v. Guariglia, 279 N.Y. at , 18 N.E.2d at 324; "Detective is
Slain," supra note 134.
142. People v. Ertel, 283 N.Y. at , 29 N.E.2d at 70;
"Detective is Slain," supra note 134.
143. "Detective is Slain," supra note 134.
144. Id.
145. People v. Ertel, 283 N.Y. at , 29 N.E.2d at 70.
146. People v. Ertel, 283 N.Y. at , 29 N.E.2d at 71; People
v. Guariglia, 279 N.Y. at , 18 N.E.2d at 324; "Detective is
Slain," supra note 134.
147. People v. Guariglia, 279 N.Y. at , 18 N.E.2d at 324.
148. Id.
149. Id.
150. People v. Ertel, 283 N.Y. at , 29 N.E.2d at 70; People
v. Guariglia, 279 N.Y. at , 18 N.E.2d at 324; "3 Die," supra
note 133.
151. People v. Guariglia, 279 N.Y. at , 18 N.E.2d at 324.
152. "3 Die," supra note 133.
153. Id.
154. Id.
155. Id.
156. Id. reported that Guariglia was age nineteen when executed
but Bowers lists Guariglia as age eighteen when executed. W.
BOWERS, supra note 59, at 468.
157. "3 Die," supra note 133.
158. id.
159. id.
68
160. This description of the Edward Haight case is based largely
on the author’s previous report, V. STREIB, supra note 5, at 105-
07.
161. "Youth Kidnaps and Kills Two Bedford Girls, 7 and 8,"
Katonah (New York) Record, Sept. 17, 1942 [hereinafter "Youth
Kidnaps"}.
162. "Haight Insane When He Slew Girls, Jury Told," The North
Westchester Times (Mount Kisco, N.Y.), Nov. 19, 1942, at col. 5
[hereinafter "Haight Insane"]; "Youth Kidnaps," supra note 161.
163. "Haight Insane," supra note 162.
164. Id.
165. A. DEUTSCH, OUR REJECTED CHILDREN 200, 200-01 (1950).
166. Id.; “Haight Insane," supra note 162.
167. A. DEUTSCH, supra note 165, at 200; "Haight, 17, Youngest
to Die in the Chair; 2 Other Lads, 18 and 19, Also Pay Penalty,"
N.Y. Times, July 9, 1943, at 19, col. 4 [hereinafter "Haight,
17").
168. A. DEUTSCH, supra note 165, at 200.
169.
OQ.
170. Id.; "Haight Insane," supra note 162.
171. "Haight Receives Death Sentence in Slaying of Girls,"
Katonah (New York) Record, Nov. 19, 1942 [hereinafter "Haight
Receives"]; "Youth Kidnaps," supra note 161.
172. “Youth Kidnaps," supra note 161.
173. Id.
174. Id.
175. Id.
176. Id.
177. "Patrick Lynch, Father of Two Murdered Girls, Dies,"
Kotonah (New York) Record, July 29, 1943 (obituary); "Youth
Kidnaps," supra note 161.
178. "Haight, 17," supra note 167; "Haight Receives," supra note
171.
179. "Haight, 17," supra note 167; "Youth Kidnaps," supra note
161. .
69
180. “Haight Receives," supra note 171; "Youth Kidnaps," supra
note 161.
181. "Haight, 17," supra note 167; “Haight Receives," supra note
171; “Youth Kidnaps," supra note 161.
182. "Haight Receives," supra note 171; “Lynch Sisters were
Drowned, Gallagher Says," The North Westchester Times (Mount
Kisco, N.Y.), Oct. 29, 1942, at 1, col. 2.
183. “Youth Kidnaps," supra note 161.
184. Id.
185. Id
186. Id
187. Id.
188. Id
189. “Haight Trial to Begin Oct. 26th in White Plains," The
North Westchester Times (Mount Kisco, N.Y.), Oct. 22, 1942, atl,
col. 2 {hereinafter "Haight Trial"]; "Youth Kidnaps," supra note
161.
190. "Youth Kidnaps," supra note 161.
191. People v. Haight, 290 N.Y. 833, 50 N.E.2d 237 (1943);
"Haight Indicted on Four Counts by Grand Jury," The North
Westchester Times (Mount Kisco, N.Y.), Sept. 24, 1942, at 1, col.
6 {hereinafter "Haight Indicted"].
192. "Haight Indicted," supra note 191.
193. Id.
194. “Haight Trial," supra note 189.
195. "Haight Receives," supra note 171.
196. “Haight, 17," supra note 167; "Haight Guilty, Will Die in
the Electric Chair," The North Westchester Times (Mount Kisco,
N.Y.), Nov. 12, 1942, at 1, col. 2 [hereinafter "Haight Guilty"];
"Haight Insane," supra note 162.
197. “Haight Insane," supra note 162.
198. "Haight Guilty,’ supra note 196.
199. "Haight Receives," supra note 171; "Haight Guilty,’ supra
note 196.
70
200. People v. Haight, 290 N.Y. at , 50 N.E.2d at 833; "Death
Sentence Passed on Child Slayer Tuesday," The North Westchester
Times (Mount Kisco, N.Y.), Nov. 19, 1942, at 1, col. 5
{hereinafter "Death Sentence]; "Haight Guilty,’ supra note 196.
201. People v. Haight, 290 N.Y. at , DO N.E.2d at 833; "Death
Sentence," supra note 200; "Haight Receives," supra note 171;
"Haight Guilty,’ supra note 196.
202. "Death Sentence," supra note 200.
203. Id.
204. People v. Haight, 290 N.Y. at , 5O N.E.2d at 833.
205. People v. Haight, 290 N.Y. 833, 50 N.E.2d 237 (1943).
206. Letter from Thomas McDade to Watt Espy, University of
Alabama (June 27, 1978).
207. Id.
208. Id.
209. Id.
210. W. BOWERS, supra note 56, at 469; "Haight, 17," supra note
167.
211. This description of the William Snyder Byers case is based
largely on the author’s previous report, V. STREIB, supra note 5,
at 116-18.
212. People v. Byers, 309 N.Y. 308, 131 N.E.2d 580 (1955); F.
LIPSIG, MURDER - FAMILY STYLE 147, 148 (1962); "Marine Held in
Slaying," N.Y. Times, Mar. 30, 1954, at 51, col 3 [hereinafter
"Marine Held").
213. F. LIPSIG, Supra note 212, at 154.
214. Id. at 153, 158.
215. Id. at 148.
216. Id.
217. Id. at 147; "Marine in Murder Case," N.Y. Times, Mar. 29,
1954, at 29, col. 8.
218. F. LIPSIG, supra note 212, at 150.
219. F. LIPSIG, supra note 212, at 149; "Marine in Murder Case,"
supra note 217.
220. F. LIPSIG, supra note 212, at 148.
71
221. Id.; "Marine in Murder Case," supra note 217.
222. F. LIPSIG, supra note 212, at 148. @
223. Id. at 149.
224. Id.
225. Id.
226. Id.
227. Id.
228. Id. at 150.
229. Id.
230. “Girl Booked in Killing," N.Y. Times, Mar. 31, 1954, at 16,
col. 5 {hereinafter "Girl Booked").
231. F. LIPSIG, supra note 212, at 150.
232. Id. at 153.
233. Id.
234. Id.; "Marine in Murder Case," supra note 217. @
235. F. LIPSIG, supra note 212, at 153.
236. Id. at 151; "Marine Held," supra note 212.
237. F. LIPSIG, supra note 212, at 150-51.
238. Id.
239. Id. at 151.
240. Id.; "Girl Booked," supra note 230; "Marine Held," supra
note 212.
241. F. LIPSIG, supra note 212, at 151.
242. Id.
243. Id. at 152.
244. Id.; “Marine in Murder Case," supra note 217.
245. "Marine in Murder Case," supra note 217.
246. Imad.
72
247. F. LIPSIG, supra note 212, at 152.
248. "Marine in Murder Case," supra note 217.
249. F. LIPSIG, supra note 212, at 152.
250. F. LIPSIG, supra note 212, at 152; "Marine Held," supra
note 212.
251. F. LIPSIG, supra note 212, at 152.
252. Id. at 153-54.
253. Id.; "Gresh Girl Sent to Bellevue," N.Y. Times, Apr. 1,
1954, at 35, col. 6 [hereinafter "Gresh Girl").
254. F. LIPSIG, supra note 212, at 154.
255. “Girl, 15, and Boy, 18, Convicted of Murder," N.Y. Times,
Jan. 21, 1955, at 16, col. 6 [hereinafter "Girl, 15"]; "Murder
Evidence Begins," N.Y. Times, Jan. 7, 1955, at 11, col. 5.
256. F. LIPSIG, supra note 212, at 154-55,
257. Id. at 155.
258. Id. at 156-57.
259. Id. at 155-56.
260. Id. at 156.
261. Id. at 158; "Gresh Girl," supra note 253.
262. People v. Byers, 309 N.Y. at 308, 131 N.E.2d at 580.
263. Id.
264. Id.; F. LIPSIG, supra note 212, at 158; "Girl, 15," supra
note 255.
265. People v. Byers, 309 N.Y. at 308, 131 N.E.2d at 580.
266. "Murderer, 19, Executed," N.Y. Times, Jan. 13, 1956, at 7,
col. 4; "Girl, 15," supra note 255.
267. "Girl, 15," supra note 255.
268. People v. Byers, 309 N.Y. at 308, 131 N.E.2d at 580.
269. Id.
270. Id.
271. Id.
73
272. “Murderer, 19, Executed," supra note 266.
273. Id. r
274. Id.
275. F. LIPSIG, supra note 212, at 158.
276. This section on constitutional issues is based largely on
the author’s previous report: Streib, Supreme Court Application
of Eighth Amendment Jurisprudence to Juvenile Death Penalty Cases
(Nov. 11, 1989) (paper presented at the 1989 Annual Meeting of
The American Society of Criminology, Reno, Nevada) (available
from author).
277. See, generally, V. STREIB, supra note 5.
278. Thompson v. Oklahoma, 487 U.S. 815 (1988); and Stanford v.
Kentucky, 109 S.Ct. 2969 (1989).
279. Furman v. Georgia, 408 U.S. 238, 407-08 (Blackmun, J.,
dissenting); and id. at 428 (Powell, J., dissenting).
280. 408 U.S. 238 (1972).
281. 428 U.S. 153 (1976).
282. Id. at 169 (Stewart, J., plurality opinion) and at 226
(White, J., concurring). @
283. Id. at 196-98 (Stewart, J., plurality opinion).
284. Id. at 197.
285. Jurek v. Texas, 428 U.S. 262, 273 (Stewart, J., plurality
opinion), quoting with approval, Jurek v. Texas, 522 S.W.2d 934,
940 (Tex. Cr. App. 1975).
286. Texas Penal Code Ann. sec. 8.07(d) (Vernon Supp. 1982).
287. 431 U.S. 633 (1977).
288. Id. at 637.
289. 438 U.S. 536 (1978).
290. Id. at 608.
291. 438 U.S. 637 (1977).
292. Id. at 639.
293. Bell v. Ohio, 438 U.S. at 642-43.
74
294. Id at 642-43, fn. *.
295. Eddings v. Oklahoma, 455 U.S. 104 (1982), cert. granted,
450 U.S. 1040 (1981).
296. Eddings v. Oklahoma, 455 U.S. at 117.
297. Id. at 116.
298. See id. at 119 (O’Connor, J., concurring).
299. Id. at 128 (Burger, C.J., dissenting).
300. See, e.g., Cannaday v. State, 455 So.2d 713 (Miss. 1984),
cert. denied, 105 S.Ct. 1209 (1985); High v. Zant, 250 Ga. 693,
300 S.E.2d 654 (1983),cert. denied, 104 S.Ct. 2669 (1984); Tokman
v. State, 435 So.2d 664 (Miss. 1983), cert. denied. 104 S.Ct.
3574 (1984); Trimble v. State, 478 A.2d 1143 (Md. 1983), cert.
denied, 105 S.Ct. 1231 (1985); and Roach v. Martin, 757 F.2d 1463
(4th Cir. 1986), cert. denied, Roach v. Aiken, 106 S.Ct. 645
(1986).
301. Thompson v. Oklahoma, 487 U.S. 815 (1988), cert. granted,
479 U.S. 1084 (1987).
302. The complete provision of the eighth amendment is:
"Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." U.S.
Const., amend. VIII.
303. See, e.g., Stanford v. Kentucky, 109 S.Ct. 2969, 2974
(1989) (Scalia, J., plurality opinion); Gregg v. Georgia, 428
U.S. 153, 168-73 (1976) (Stewart, J., plurality opinion);
McGautha v. California, 402 U.S. 183, 226 (1971) (Black, J.,
concurring).
304. Robinson v. California, 370 U.S. 660, 666 (1962).
305. Trop v. Dulles, 356 U.S. 86, 101 (1958) (Warren, C.J.,
plurality opinion).
306. Gregg v. Georgia, 428 U.S. 153, 173 (1976) (Stewart, J.,
plurality opinion) (quoting with approval Trop v. Dulles, 356
U.S. at 100 (Warren, C.J., plurality opinion)).
307. Coker v. Georgia, 433 U.S. 584, 592 (White, J., plurality
opinion).
308. In re Gault, 387 U.S. 1, 15-16 (1967).
309. See, e.g., Fox, "Juvenile Justice Reform: An Historical
Perspective," 22 STAN. L. REV. 1187 (1970).
310. See, e.g., H. BEDAU (ed.), THE DEATH PENALTY IN AMERICA 52-
56 (1964).
75
311. V. STREIB, supra note 5; and Bedau, "Death Sentences in New
Jersey: 1907-1960," 19 RUTGERS L. REV. 1, 25 (1964).
312. See S. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE @
SYSTEM Appendix B (2d ed. 1984).
313. In re Gault, 387 U.S. 1 (1967).
314. NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., DEATH ROW
U.S.A. (July 1989).
315. California, Colorado, Connecticut, Georgia, Illinois,
Indiana, Kentucky, Maryland, Nebraska, Nevada, New Hampshire, New
Jersey, New Mexico, North Carolina, Ohio, Oregon, Tennessee, and
Texas.
316. See Table 2, infra.
317. Furman v. Georgia, 408 U.S. at 300 (Brennan, J.,
concurring).
318. Furman v. Georgia, 408 U.S. at 331-32 (Marshall, J.,
concurring).
319. Model Penal Code sec. 210.6 commentary at 133 (Official
Draft and Revised Comments 1980).
320. NATIONAL COMMISSION ON THE REFORM OF CRIMINAL LAW, STUDY
DRAFT OF THE NEW FEDERAL CODE sec. 3603 (1970). ©
321. See "ABA Opposes Capital Punishment for Persons Under 18,"
69 A.B.A.J. 1925 (1983); and Recommendation and Report to the ABA
House of Delegates by the Section of Criminal Justice, August
1983 (proposing that this resolution be adopted by the American
Bar Association).
322. AMNESTY INTERNATIONAL, THE DEATH PENALTY (1979).
323. Hartman, "‘Unusual’ Punishment: The Domestic Effects of
International Norms Restricting the Application of the Death
Penalty ," 52 CIN. L. REV. 655 (1983).
324. N.Y. Times, Jan. 16, 1983, at 5, col. 2.
325. Furman v. Georgia, 408 U.S. at 278-79 (Brennan, J.,
concurring).
326. Gregg v. Georgia, 428 U.S. at 183 (Stewart, J., plurality
opinion).
327. 458 U.S. 782 (1982).
328. Id. at 801 (citations omitted).
76
329. Furman v. Georgia, 408 U.S. at 302 (Brennan, J.,
concurring); id. at 353-54 (Marshall, J., concurring).
330. Gregg v. Georgia, 428 U.S. at 185-86 (Stewart, J.,
plurality opinion).
331. Consider the perspective of Ernest van den Haag, perhaps
the best informed and most articulate pro-death penalty advocate:
[W]hy do so many people believe so firmly that the death
penalty is a more effective deterrent?
Some are persuaded by irrelevant arguments. They
insist that the death penalty at least makes sure that the
person who suffered it will not commit other crimes. True.
Yet this confuses incapacitation with a specific way to
bring it about: death. Death is the surest way to bring
about the most total incapacitation, and it is irrevocable.
But does incapacitation need to be that total? And is
irrevocability necessarily an advantage? Obviously it makes
correcting mistakes and rehabilitation impossible. E. VAN
DEN HAAG & J. CONRAD, THE DEATH PENALTY: A DEBATE 67
(1983).
332. See, e.g., People v. Hiemel, 49 App.Div.2d 769, 372
N.Y.S.2d 730 (1975) (court reduced the murder sentence of a 16-
year-old who had used the time in prison to become "a classic
example of the rehabilitation heights attainable within our
existing penal system by an inmate desirous of taking advantage
of the educational facilities available." Id. at 770, 372
N.Y.S.2d at 731).
333. ee Furman v. Georgia, 408 U.S. at 309 (Stewart, J.,
concurring).
334. Thompson v. Oklahoma, 487 U.S. 815 (1988).
335. Id. at 818-19 (Stevens, J., plurality opinion).
336. Stanford v. Kentucky, 109 S.Ct. 2969 (June 26, 1989). The
Court’s ruling in Stanford was combined into one opinion with its
ruling in Wilkins v. Missouri. Stanford involved a seventeen-
year-old petitioner and Wilkins involved a sixteen-year-old
petitioner, both of whom had been sentenced to death.
337. Id. at 2974.
338. Thompson v. Oklahoma, 487 U.S. at 817 (Stevens, J.,
plurality opinion).
339. Id. at 848 (O’Connor, J., concurring).
340. Id. at 859 (Scalia, J., dissenting).
341. Id. at 817 (case syllabus).
342. Stanford v. Kentucky, 109 S.Ct. 2969 (1989).
77
343. ad. at 2980 (O’Connor, J., concurring).
344. Id. at 2982 (Brennan, J.,
345. Thompson v. Oklahoma, 487
concurring).
346. Stanford v. Kentucky, 109
concurring).
347. Thompson v. Oklahoma, 487
plurality opinion).
348. Stanford v. Kentucky, 109
dissenting).
349. Thompson v. Oklahoma, 487
plurality opinion); Stanford v.
(Brennan, J., dissenting).
350. Thompson v. Oklahoma, 487
plurality opinion); Stanford v.
(Brennan, J., dissenting).
351. Thompson v. Oklahoma, 487
plurality opinion).
352. Stanford v. Kentucky, 109
dissenting).
353. Thompson v. Oklahoma, 487
plurality opinion); Stanford v.
(Brennan, J., dissenting).
354. Thompson v. Oklahoma, 487
plurality opinion).
355. Stanford v. Kentucky, 109
dissenting).
356. Thompson v. Oklahoma, 487
plurality opinion); Stanford v.
(Brennan, J., dissenting).
357. 458 U.S. 782 (1982).
dissenting).
U.S. at 849 (O’Connor, J.,
S.Ct. at 2981 (O’Connor, J.,
U.S. at 818 (Stevens, J.,
S.Ct. at 2982 (Brennan, J.,
U.S. at 821 (Stevens, J.,
Kentucky, 109 S.Ct. at 2982
U.S. at 821-22 (Stevens, J.,
Kentucky, 109 S.Ct. at 2982
U.S. at 829-30 (Stevens, J.,
S.Ct. at 2982-83 (Brennan, J.,
U.S. at 824-25 (Stevens, J.,
Kentucky, 109 S.Ct. at 2988-89
U.S. at 831-33 (Stevens, J.,
S.Ct. at 2983-84 (Brennan, J.,
U.S. at 830-31 (Stevens, J.,
Kentucky, 109 S.Ct. at 2985-86
358. 5 U.S. (1 Cranch) 137 (1803).
359. Thompson v. Oklahoma, 487 U.S. at 833 (Stevens, J.,
plurality opinion).
360. Id., citing Enmund v. Florida, 458 U.S. at 797.
361. Thompson v. Oklahoma, 487 U.S. at 835.
78
363. Id. at 837-38.
364. Stanford v. Kentucky, 109 S.Ct. at 2986-87 (Brennan, J.,
dissenting).
365. Id. at 2988.
366. Id. at 2988-89.
367. Id. at 2990-92.
I
368. dad. at 2992-93.
369. Id. at 2993.
370. Id.
371. Id. at 2994.
372. Thompson v. Oklahoma, 487 U.S. at 838 (Stevens, J.,
plurality opinion).
373. Stanford v. Kentucky, 109 S.Ct. at 2994 (Brennan, J.,
dissenting).
374. Justice Scalia wrote also for Chief Justice Rehnquist and
Justice White.
375. Thompson v. Oklahoma, 487 U.S. at 817 (case syllabus).
376. Stanford v. Kentucky, 109 S.Ct. at 2972 (Scalia, J.,
plurality opinion).
377. This conclusion flows from Justice Kennedy’s signing the
plurality opinion by Justice Scalia in Stanford, an opinion which
espouses generally the same principles and analyses as the
dissenting opinion by Justice Scalia in Thompson.
378. Wilkins v. Missouri, 736 S.W.2d 409 (Mo. 19 ), cert.
granted, 487 U.S. 1233 (June 30, 1988).
379. High v. Kemp, 819 F.2d 988 (11th Cir. 1987), cert. granted
sub nom, High v. Zant, 487 U.S. 1233 (June 30, 1988);
380. The facts in Thompson, while horrible as are all murders,
were not among the worst the Court could have faced. While
supporting a theory of brutal and premeditated murder of his
former brother-in-law, the facts also establish that the victim
had been abusive toward Wayne Thompson and members of his family,
that Wayne Thompson participated in this homicide under the
influence of his older brother and two other older companions,
and that Wayne Thompson himself was only fifteen years old at the
79
time of the crime. Thompson v. Oklahoma, 487 U.S. at 819
(Stevens, J., plurality opinion); id. at 860-61 (Scalia, J.,
dissenting).
The facts in Stanford and Wilkins demonstrated equally
horrible fates for the victims and almost no mitigating ©
circumstances for the defendants. Kevin Stanford, not fifteen
but well into his seventeenth year, robbed a gas station,
kidnapped the young woman attendant, raped and sodomized her
repeatedly, and then shot her point-blank in the face for no
reason other than to prevent her from identifying him later.
Stanford v. Kentucky, 109 S.Ct. at 2972-73 (1989) (Scalia, J.,
plurality opinion). Heath Wilkins, age sixteen and one-half,
robbed a convenience store with a plan to kill the clerk to
eliminate witnesses. During the robbery he repeatedly stabbed
the clerk, a twenty-six-year-old mother of two children, even as
she tried to help the robbers open the cash register and finally
as she begged for her life. Id. at 2973.
These two cases involved "older" juveniles (not another
fifteen-year-old), horrible murders of defenseless young women,
and no means to understand or even begin to excuse the reasons
for the defendants acts. While still under the standard age
limit for juvenile court in their respective states, these two
"juveniles" were among the least sympathetic persons then on
death row, a fact presumably not lost on Justice Scalia.
381. In Stanford, Justice Scalia maintained the support of Chief
Justice Rehnquist and Justice White that he had garnered for his
Thompson dissent, added the support and signature of then-new
Justice Kennedy, and added at least Justice O’Connor’s vote
(through her concurring opinion) to affirm the death sentences. @
382. Thompson v. Oklahoma, 487 U.S. at 859-61 (Scalia, J.,
dissenting).
383. Id. at 864.
384. Id. at 864-65.
385. Id. at 865-68.
386. Id. at 868-71.
387. - at 868.
388. - at 849-52 (O’Connor, J., concurring).
389. . at 868 (Scalia, J., dissenting).
391. - at 869-70.
- at 868-69 n.4.
Id
Id
Id
390. Id. at 868-72.
Id
392. Id
Id
393. . at 833 (Stevens, J., plurality opinion). r
80
394. Id. at 873 (Scalia, J., dissenting).
395. Id.
396. Id.
397. Id. at 873-74.
398. Stanford v. Kentucky, 109 S.Ct. at 2979-80 (Scalia, J.,
plurality opinion).
399. Id. at 2972-73.
400. Id. at 2975-79.
401. Id. at 2975-76.
402. - at 2977.
403.
404. at 2979-80.
405. at 2975 n.1.
407. - at 2979.
408. - at 2980.
id
id
Id
Id
406. Id. at 2977-79.
Id
Id
409. Id
id
410.
411. Thompson v. Oklahoma, 487 U.S. at 848 (O’Connor, Justice,
concurring).
412. Stanford v. Kentucky, 109 S.Ct. at 2980 (O’Connor, J.,
concurring).
413. At least according to her colleague, Justice Blackmun,
Justice O’Connor struggled mightily with her Thompson
concurrence. On July 15, 1988, little more than two weeks after
Thompson had been decided, Justice Blackmun characterized her
struggle as follows:
Sandra’s tough, she’s conservative, she’s a states’ righter,
she wants to let the states decide things like this. But
here was a 15-year-old, and the soft spots in her armor --
and she wouldn’t mind my saying this, I’ve said it to her
directly -- are children and are women. And one could see
that she was visibly affected by a decision in this case.
And she deferred and deferred and deferred and finally wrote
a concurrence . .. in favor of the unconstitutionality of
81
the Oklahoma statute. N.Y. Times, July 25, 1988, at Al2,
col. 2, 4-5.
414. Thompson v. Oklahoma, 487 U.S. at 849 (O’Connor, J.,
concurring). ©
415. Id. at 851-55.
416. Id. at 853-54.
417. Id. at 857.
418. Id. at 857-58.
419. Stanford v. Kentucky, 109 S.Ct. at 2980 (O’Connor, J.,
concurring).
420. Id. at 2980-81.
421. Id. at 2981.
422.
la fe
Qa |
423. - at 2981-82.
424.. Thompson v. Oklahoma, 487 U.S. at 853 (O’Connor, J.,
concurring).
425. Stanford v. Kentucky, 109 S.Ct. at 2981 (O’Connor, J.,
concurring). ©
426. Only a year before Thompson, the Court had decided Burger
v. Kemp, 107 S.Ct. 3114 (1987), a case incidentally involving a
17-year-old offender but not directly raising the age issue for
the Court to decide. In Burger, Justice Powell’s dissenting
opinion not only disagreed with the majority’s rejection of the
petitioner’s ineffective assistance of counsel claims but also
reached out to address and reveal Justice Powell’s strong concern
over the death penalty for juveniles. Id. at 3140-41. Justice
Powell seemed to want the Court to wait for a decision in
Thompson, noting certiorari had already been granted in that
case. Id. at 3140 n.4. He then went on to raise the serious
questions in his mind concerning the constitutionality of the
death penalty for juveniles. Id. at 3140-41 n.5).
Although Justice Powell had been a member of the Court that
had agreed to take on the issue of the constitutionality of the
juvenile death penalty by granting certiorari in Thompson,
Justice Powell retired in the summer of 1987, foregoing the
opportunity to cast his vote formally either in Thompson, decided
in 1988, or in Stanford, decided in 1989. However, given the
tone of his dicta in Burger, it seems likely that Justice Powell
would have joined at least Justice Stevens’ plurality in Thompson
and probably even Justice Brennan’s dissent in Stanford, giving
both opinions five signatures and making them majority rulings of
the Court. @
82
427. W. LAFAVE & A. SCOTT, CRIMINAL LAW 611 (2d ed. 1986).
428. Id.
429. Id. at 668-672.
430. Id. at 642-648.
431. This truism, scientifically proven by adolescent psychology
researchers and daily witnessed by parents of teenagers, has been
recognized regularly by the United States Supreme Court. See,
e.g., Stanford v. Kentucky, 109 S.Ct. at 2988-89 (Brennan, J.,
dissenting); Thompson v. Oklahoma, 487 U.S. at 833-35 (Stevens,
J., plurality opinion); Eddings v. Oklahoma, 455 U.S. 104, 115
(1982); Bellotti v. Baird, 443 U.S. 622, 635 (1979); Goss v.
Lopez, 419 U.S. 565, 590-91 (1975) (Powell, J., dissenting).
432. For a particularly persuasive exposition on this point,
consider Hugo Bedeau’s words:
The habits and capacities of the young are the product
of a physical and social environment over which they have no
control. In childhood each of us is a hostage to fortune,
good or ill, of the immediate family and neighborhood into
which nature’s lottery has cast us. This commonplace truth
is crucially relevant to how juvenile offenders should be
treated by the criminal justice system. Our laws, civil as
well as criminal, reflect the truth that children are less
responsible for their circumstances and hence for their
conduct than are adults. Every sensible parent and teacher
recognizes that behavior intolerable when exhibited by
adults must be patiently borne and thoughtfully reshaped
when exhibited by the young. No one disputes this where the
behavior of infants and preschoolers is concerned; many are
less sure on this point when coping with pubescent or
adolescent girls and boys; still fewer believe that reason
or justice requires tolerance based on youth when dealing
with men and women who have reached twenty-one, or even
eighteen, the conventional ages of majority. Bedau, Forward
to V. STREIB, supra note 5, at vii-viii.
433. Wilkins v. Missouri, 109 S.Ct. 2969 (1989).
434. Heath Wilkins represented himself in entering a plea of
guilty and at the sentencing hearing. State v. Wilkins, 736
S.W.2d 409, 410-11 (Mo. 1987). In Wilkin’s closing argument at
his sentencing hearing, the following exchange took place between
the trial judge and Wilkins:
Wilkins: ...What I would like for you to look at and take
into consideration is for capital murder, murder in the
first degree, it’s either life imprisonment or, life
imprisonment without possible probation or parole or any
type of release, and the death penalty.
83
Now, I’d say this is more based on personal observation
than anything, that I’m asking the court to consider the
death penalty as a more humane in the extent of possible
happenings and pain received by, you know, me, what I’d go @
through, either one.
Not that I’d, I’m not stating that I would deserve it,
I’m just, that’s my personal feelings.
One I fear, the other I don’t.
That’s all.
The Court: I want to make sure I understand you, are you
requesting that the court impose one or the other?
Wilkins: Yes, Your Honor.
The Court: Which?
Wilkins: I’m asking the Court to impose preferably the
death penalty over life imprisonment without ---.
Brief of Petitioner at 8 n.11, Wilkins v. Missouri, 109 S.Ct.
2969 (1989) (quoting from the Trial Record at 295-96). See also
Wilkins v. Missouri, 109 S.Ct. at 2974 (Scalia, J., plurality
opinion); State v. Wilkins, 736 S.W.2d 409, 411 (Mo. 1987).
435. The scholarly literature reporting research findings on the
deterrence issue is voluminous and nearly unanimous in concluding
no deterrence factor exists. See, e.g., Archer, Gartner, &
Beittel, “Homicide and the Death Penalty: A Cross-National Test
of a Deterrence Hypothesis," 74 J. CRIM. L. & CRIMINOLOGY 991 }
(1983); Bailey, "Murder, Capital Punishment, and Television:
Execution Publicity and Homicide Rates," 55 AM. SOC. REV. 628
(1990); Bailey, "Imprisonment v. the Death Penalty as a Deterrent
to Murder," 1 LAW & HUM. BEHAV. 239 (1977); Bailey & Peterson,
"Murder and Capital Punishment: A Monthly Time-Series Analysis
of Execution Publicity," 54 AM. SOC. REV. 722 (1989); Bowers &
Pierce, "Deterrence or Brutalization: What is the Effect of
Executions?," 26 CRIME & DELINQ. 453 (1980); Knorr, “Deterrence
and the Death Penalty: A Temporal Cross-Sectional Approach," 70
J. CRIM. L. & CRIMINOLOGY 235 (1979); Lempert, "The Effect of
Executions on Homicides: A New Look in an Old Light," 29 CRIME &
DELINQ. 88 (1983); McFarland, "Is Capital Punishment a Short-Term
Deterrent to Homicide?: A Study of the Effects of Four Recent
American Executions," 74 J. CRIM. L. & CRIMINOLOGY 1014 (1983);
Sutherland, "Murder and the Death Penalty," 15 J. CRIM. L. &
CRIMINOLOGY 522 (1925).
436. Gottlieb, "The Death Penalty in the Legislature: Some
Thoughts About Money, Myth, and Morality," 37 U. KANS. L. REV.
444 (1989).
437. Several recent studies have found the cost per execution of
a death penalty system to be many times the cost of incarcerating
a prisoner for life. See, e.g., Nakell, "The Cost of the Death
Penalty," 14 CRIM. L. BULL. 69 (1978); Spangenberg & Walsh, ©
84
"Capital Punishment or Life Imprisonment? Some Cost
Considerations," 23 LOY. L. A. L. REV. 45 (1989); Tabak & Lane,
"The Execution of Injustice: A Cost and Lack-of-Benefit Analysis
of the Death Penalty," 23 LOY. L. A. L. REV. 59, 135-36 (1989);
Comment, "The Cost of Taking a Life: Dollars and Cents of the
Death Penalty," 18 U. C. DAVIS L. REV. 1221 (1985).
438 Thompson v. Oklahoma, 487 U.S. at 855 (O’Connor, J.,
concurring).
85
