Capital Punishment for Juveniles in the Criminal Justice System by Victor L. Streib, 1982 June 6

CAPITAL PUNISHMENT FOR JUVENILES

IN THE CRIMINAL JUSTICE SYSTEM*

by

Victor L. Streib
Associate Dean and Professor
Cleveland-Marshall College of Law
Cleveland State University
Cleveland, Ohio

presented at
the Annual Meeting of the
Law and Society Association
Toronto, Ontario
Canada

June 6, 1982

Heinous murder by a person under age eighteen may qualify that
"juvenile" for American society's most severe penalty -- capital
punishment. This was so before the juvenile justice system was even a
dream, has been so since that dream was given life, and remains so now
that the dream has been harnessed by the limitations of reality.
Particularly in the early 1980's, capital punishment of juveniles is
reemerging as an issue of great national inportance, sufficient even to

capture the attention of the United States Supreme Court.

The reincarnation of capital punishment for crimes committed while
under age eighteen is the result of the coming together of two trends.
One trend is the increasing tendency to subject persons under the
maximum juvenile court jurisdictional age limit to criminal
prosecution, either through direct prosecution of that young offender
in criminal court? or through initial juvenile court jurisdiction
being transferred in waiver proceedings to criminal court.> The
other trend is the return of reliance upon capital punishment in the
criminal justice system. * The combined effect of these trends is to
increasingly expose juveniles to the possibility of capital punishment

for their misdeeds.

History of Capital Punishment for Young Criminals

As with most other facets of our criminal law, we inherited the
tradition of capital punishment primarily from England but also from
other European countries. A fundamental premise from this criminal
jurisprudence was then and is now that persons under age seven were

conclusively presumed to be incapable of entertaining criminal intent


i a i

. 5
and thus could not have criminal liability imposed upon them. For
© persons from age seven to age fourteen, the presumption of inability to
entertain criminal intent was rebuttable and if rebutted, such a person
. 6
could be convicted of crime and be sentenced to death. No such
presumption applied to persons age fourteen or over. This view of
children's liability in the criminal justice system has apparently been
accepted by the United States Supreme Court in In Re Gault:
At common law, children under seven were considered
incapable of possessing criminal intent. Beyond that
age, they were subjected to arrest, trial, and in theory
to punishment like adult offenders.
Considerable debate has centered around whether or not children

were actually executed after having been sentenced to death. Much of

the debate seems to be confused by the use of relatively vague terms

1 ot !

such as "children, adolescents," and infrequent specification of the
© age of the offender when the crime occurred or when executed. However,
it seems reasonably clear that in England "adolescents as well as
children could be -- and actually were -- sentenced to death and even
executed. "® As for younger children, the law's bark was probably
much worse than its bite. For example, one researcher studied the
records from 1801 to 1836 for the Old Bailey in London. He found 103
cases of children under age fourteen being sentenced to death but not a
single one being finally executed.
This same discrepency between what was said and what was done
apparently carried over to colonial America and the early United
States. In early nineteenth century United States, it seems likely

that "courts were extremely hesitant to sentence a child under fourteen

10 .
to death." As for carrying out the death sentence, some have

@ observed that


only two children under fourteen were judicially executed between
the years 1806 and 1882. In both cases, the defendants were Negro
slaves, and, in one case, the victim was the son of a white property
owner.

That at least some trial courts were convinced of this reluctance to
execute younger children is suggested by a criminal trial judge's
observation in 1823:

The lowest period, that judgment of death has been inflicted upon

an infant in the United States, has never extended below sixteen

years, or at least after a carefu],search none could be found, and
it is presumed none can be found.
Even if younger children were sentenced to death, these younger
offenders were apparently much more likely than older offenders to have
their death sentence commuted to a lesser penalty by the governor of
the state. 1?

The most thorough studies presently available on this topic have
identified forty-two persons executed prior to 1900 for crimes
committed apparently while under age eighteen (see Appendix A). In
this period prior to 1900, no juvenile justice system existed to
initially detour these children from the criminal justice system and
capital punishment. As Appendix A indicates, this list of forty-two
includes three twelve-year olds and three girls. Thus, while actual
execution of children may have been much rarer than sentencing them to

»

be executed, forty-two actual executions of children cannot be ignored.


Impact of the Juvenile Justice System, 1899-1925

During this period in the United States, the embryonic roots of the
1 . .
juvenile justice system were emerging. ‘ This observation by the
United States Supreme Court in In Re Gault is the conventional view:
The early reformers were appalled by adult procedures and
penalties, and by the fact that children could be given long prison
sentences and mixed in jails with hardened criminals. ... The
apparent rigidities, technicalities, and harshness which they
observed in both substantive and procedural criminal law were
therefore to be discarded. The idea of crime and punishment was to
be abandoned. The child was to be "treated" and "rehabilitated"
and the procedures, from apprehension through institutionalization,
were to be "clinical" rather than punitive.
Mid-Nineteenth century reforms had focussed primarily upon modifying
the harshness of the correctional phase of the criminal justice
16
system. The most well-known examples are the houses of refuge
established in various cities by apparently well-meaning reformists
anxious to separate youthful offenders from adult criminals. !/ The
motives of these reformists or "child-savers" have been persuasively
impuned by some who suggest this was simply encouragement to reach into
children's private lives with punitive policies sugar-coated in the
rhetoric of rehabilitation. !® In any event, those reforms were
overshadowed by the continuing criminal court jurisdiction over those
youthful offenders. Thus came the need for a separate legal system for
juveniles.

Following Illinois' 1899 lead, other states enacted juvenile court
legislation tending to duplicate the example provided by Illinois and
other pioneer states. By 1925 all states but two had such legislation,
with the federal government passing a juvenile court act in 1938, 1?

The appearance of the juvenile justice system can be seen as bringing

the official position of the law into line with the previous unofficial

and implicit special treatment given to young offenders. For the

purposes of this paper, a most obvious premise is that no juvenile
court could impose "punishment" upon a juvenile offender but must treat
and rehabilitate. This seems to be an unarguable rejection of the

death penalty for juvenile offenders.

Post-1899 Prosecution of Juveniles in Criminal Court

In most jurisdictions today, delinquent acts are defined as acts
that are in violation of state or federal law, local ordinance, or an
‘ . 20 ; .
order of the juvenile court. Generally, this means acts which
would be crimes if committed by an adult. This broad category would
include murder and other capital crimes unless they are specifically
excluded from the jurisdiction of the juvenile court. The criminal
nature of these delinquent acts mean that the cases could conceivably
end up under the jurisdiction of criminal court, as has been observed
by the Supreme Court in Gault:
the fact of the matter is that there is little or no assurance...
that a juvenile apprehended and interrogated by the police or even
by the Juvenile Court itself will remain outside of the reach of
adult courts as a consequence of the offense for which he has been
taken into custody. In Arizona, as in other States, provision is
made for Juvenile Courts 49 relinquish or waive jurisdiction to the
ordinary criminal courts.
In 1975, the Supreme Court noted in passing that "an overwhelming
« . . : * . : : : . m22
majority of jurisdictions permit transfer in certain instances.
The Supreme Court's first direct consideration of juvenile justice
issues, in Kent v. United States, 383 U.S. 542 (1966), was a review of
the procedures by which a juvenile court could and should waive

jurisdiction over a juvenile offender, resulting in transfer of the

case to adult criminal court. The impact of such transfer is


exemplified by the facts in Kent: 16-year-old Morris A. Kent, Jr., was

convicted of six felonies and sentenced to a total of 30 to 90 years in
prison.

Another way that a person under the age limit for juvenile court
jurisdiction can end up in criminal court is to commit an offense which
has been expressly excluded from the jurisdiction of juvenile
court.“ These excluded offenses are typically only the most serious
crimes, such as murder, rape, robbery, etc.. Some states-> expressly
exclude capital offenses from juvenile court jurisdictions, leaving
only criminal court jurisdiction over such offenses.

A third alternative is presented by those states which give the
prosecutor the authority to decide in which court - juvenile or
criminal - the case should be filed.7° If the prosecutor files a
juvenile petition, the case proceeds in juvenile court. If the
prosecutor files a criminal information or obtains a grand jury
indictment, the case proceeds in criminal court.

Each of these three alternatives lodges the choice of court in a
different decision-maker. The traditional waiver alternative leaves
the decision up to the judiciary -- for our purposes here the juvenile
court judge. In the second alternative, the legislature has made the
original and preemptive decision to place certain cases exclusively in
criminal court. The prosecutor is the decision-maker as to the choice
of court in the third alternative. Whichever means is followed, the
young offender is under the juvenile court age limit but is subjected

to the full authority of the criminal court, including the power to

impose capital punishment for certain crimes.


Twentieth Century Legal Developments in Capital Punishment of Juveniles

Over three fourths of the nations of the world (73 of 93 reporting
countries) have set age eighteen as the minimum for execution.
. . . . 28
This was also the position taken by the United Nations in 1976.
Contrast this benevolent international attitude with the current "get
tough" attitude toward violent juvenile offenders which seems to be
- . . 2
sweeping legislatures and the judiciary in the United States. ? As
for public acceptance of the death penalty as an appropriate legal
reaction to serious crime, United States polls indicate that from 66
30 31 .
percent to 63 percent of those questioned favor the death
penalty.
The primary constitutional gatekeeper for death penalty cases has
been the Eighth Amendment to the United States Constitution, which
provides: "Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." The general
theories of the Cruel and Unusual Clause were set forth by the Supreme
Court in 1977:
First, it limits the kinds of punishment that can be imposed on
those convicted of crimes...; second, it proscribes punishment
grossly disproportionate to the severity of the crime...; and
third, it imposes substantive limits on what can be made criminal
and punished as such.... We,have recognized the last limitation as
one to be applied sparingly.
In addition to the Eighth Amendment, of peripheral interest is that the
Twenty-Sixth Amendment to the United States Constitution sets age
eighteen as the line for adult voting rights. Also should be noted is
that the Supreme Court has not regarded age as a "suspect class" under

the Equal Protection Clause of the Fourteenth Amendment to the United

States Constitution.

The last decade has seen approximately one major decision by the

United States Supreme Court each year on the death penalty. In 1972,
the Supreme Court held in Furman v. Georgia?’ that the death penalty
was unconstitutional as then applied but did not decide whether it is
unconstitutional for all crimes and in all circumstances. The Court
held in 1976 that the death penalty does not per se violate the Eighth
Amendment. >> In 19762° and 1977,” the Court struck down

statutes incorporating mandatory death sentences, and the Court

rejected the death penalty for rape cases in 1977.°° The next year

. . 3 .
in Lockett v. Ohio, 9 the Court expressly required that all aspects
of the offender's character and record be considered before imposing
the death penalty. The meticulous treatment given these cases stems
from the Court's unarguable premise that "death as a punishment is
. * : : ° * * 140
unique in its severity and irrevocability.
It seems well established in the 1980's that the sentencing
decision must take into account the age of a particularly young
offender:
we conclude that the Eighth and Fourteenth Amendments require that
the sentences. . . not be precluded from considering, as a
mitigating factor, any aspect of a defendant's character or record

- . . that he defendant proffers as a basis for a sentence less
than death.

Lockett overruled the Ohio death penalty statute in part because
"consideration of defendant's . . . age would generally not be
permitted, as such, to affect the sentencing decision."*7 The youth
of the offender as an appropriate mitigating factor was also mentioned
in passing by the Supreme Court in Gregg v. Georgia, ‘Jurek Vv.

46

Texas," (Harry) Roberts v. Louisiauna,’> and Bell v. Ohio. In

Bell, the offender was a sixteen-year-old boy sentenced to death for


murder, but the Court didn't directly consider his age since the Ohio

statute under which he had been convicted was found to be
unconstitutional.
: 47 . .48
In Eddings v. Oklahoma, the Court had granted certiorari ~§ on
only one question:
Whether the infliction of the death penalty on a child who was
sixteen at the time of the crime constitutes cruel and unusual
punishment under the Eighth and Foygteenth Amendments of the
Constitution of the United States?
However, when the briefs were filed and the case argued before the
Court, the petitioner inserted an additional question for the Court:
Whether the Court should address the plain error committed by the

trial court when it refused to consider relevant mitigating 50
evidence in violation of Lockett v. Ohio, 438 U.S. 586 (1978)?

. . ol ;
It was this second, "'eleventh-hour' claim" that collected five of
the nine votes in the United States Supreme Court and resulted in
reversing the imposition of the death penalty and remanding the case
. . oe . . . 52
for another sentencing decision more in line with Lockett.

And what of the original issue before the court: Whether
inflicting the death penalty on children is unconstitutional? Chief
Justice Burger made a passing reference to that issue:

Our only authority is to decide whether (sentences) are

constitutional under the Eighth Amendment. The Court stops far

short of suggesting that there is any constitutional proscription
against imposition of the death penalty on a person who was under
age 18 when the murder was committed. ...Because the sentencing
proceedings in this case were in no sense inconsistent with Lockett

v. Ohio, 438 U.S. 586 (1978), I would decide the sole, issue on

which we granted certiorari, and affirm the judgment.

Thus, four members of the Court (Chief Justice Burger and Justices
Blackmun, Rehnquist and White) can be said to believe no constitutional

bar exists to imposition of the death penalty on an offender who

committed murder when age sixteen.

10


The majority in Eddings left much more doubt as to where they

stand, simply reminding us that "chronological age of a minor itself a
. 4
relevant mitigating factor of great weight." In her separate
concurring opinion, Justice O'Connor succinctly characterized the
majority's holding:
I, however, do not read the Court's opinion either as altering
this Court's opinions establishing the constitutionality of the
death penalty or as deciding the issue of whether the Constitution
permits imposition of the death penalty on an individual who
committed a murder at age 16.
After Furman v. Georgia, the response of the state legislatures has
been seen as "the most marked indication of society's endorsement of
126 57
the death penalty. Even though the Model Penal Code expressly
rejects the death penalty for offenders under eighteen, since Furman
the states have overwhelmingly passed new death penalty statutes which
would permit it. Of the thirty-five presumptively valid death penalty
statutes now in existence, only six prohibit execution of offenders
. . . : 58 59
whose crimes were committed while under age sixteen, seventeen
. 60 . 61 .
or eighteen. Twenty-five statutes have expressly designated
the offender's youth as a mitigating factor, while others do not
specify particular mitigating circumstances but do not rule out the
youth of the offender. The presently proposed federal statute”
would follow the majority of the state statutes by expressly setting
out age of the offender as a mitigating but not prohibitive factor.
State appellate courts have necessarily faced the "death penalty
for children" question with much more frequency than the federal

courts. No clear pattern can be devined from these decisions, but it

seems that a substantial number of cases have come down on both sides

11

of the issue, some approving the death penalty for young offenders

. . snide ., 04
and others rejecting or strongly criticizing it. Note, however,
. 65 .
that express language in Lockett and other cases mentioned above
require that age be considered as a mitigating factor, at least if the

defendant proffers such evidence.

Characteristics of Executed Juveniles

Of the over 13,000°° legal executions in American history,
approximately 168 of them have been for crimes committed while under
age eighteen. To facilitate some comparisons between such executions
before and after the advent of the juvenile justice system, these 168
executions have been separated into two sets. Appendix A lists the 42
persons executed before 1900 for crimes committed while under age
eighteen. Appendix B carries forward this documentation, listing the
126 persons executed after 1900 for crimes committed while under age
eighteen. Recognizing the difficulties in full verification of each of
these 168 executions, the data presented are at least representative of
the phenomenon.

From the data presented in Appendices A and B, summary tables have
been developed as to age and race of the person and as to type of
offense. Table 1 summarizes data with respect to age of the person at

the time of the execution.

12


Table l

Comparison of Pre-1900 and Post-1900 Executions For
Crimes Committed While Under Age 18 According to Age
at Time of Execution

Age 1642 1900
When to to Totals
Executed 1899 Present
12 2 (54) O (0%) 2 (1%)
13 2 (5%) O (04) 2 (1%)
14 1 (2%) 1 (1%) 2 (1%)
15 3. (7%) O (0%) 3 (2%)
16 10 (24%) 10 (84) 20 (12%)
17 19 (45%) 52 (41%) 71 (424)
18 4x (104) 63 (504) 67* (402%)
25 1 (2%) O (0%) 1 (1%)
Totals 42 (1002) 126 (100%) 168 (1002)

* These numbers are probably somewhat low due to present
unavailability of more complete data.

As for age of the person when executed, the data in Table 1 suggest
that execution of persons age 15 and under was much more common prior
to 1900 (8/42 or 19%) than it has been since 1900 (1/126 or 1%). This
may be explained in part by the fact that 6 of the 8 persons age 15
executed prior to 1900 were Black or American Indians. Another partial
explanation may be the comparatively protracted appeals process in more
recent death penalty cases as compared to those prior to 1900. For
modern cases, this means a larger gap between the age when executed and

the age when the crime was committed. In any event, the data in Table

13

1 suggest a marked trend away from executing persons age fifteen and

under.

The data presented in Table 2 provide a comparison of the race of

the persons executed.

Comparison of Pre-1900 and Post-1900 Executions

Table 2

For Crimes Committed While Under Age 18 According

to Race of the Executed Offender

Race of 1642 1900

Executed to to Totals
Offender 1899 Present

American Indian 4(102) O (0%) 4 (2%)
Chinese 0 (0%) 2 (2%) 2 (124)
Puerto Rican* O (0%) l (1%) l (2%)
Black 15 (364) 98 (782) 113 (67%)
White* 23 (55%) 20 (16%) 43 (26%)
Unknown QO (0%) 5 (4%) 5 (3%)
Totals 42 (101%) 126 (101%) 168 (100%)

* Some persons

categorized as White, particularly in early record
keeping, may actually have been Puerto Rican or otherwise Hispanic.

Perhaps the most surprising indication from Table 2 is the dramatic

shift in the race of the executed offenders between the two time
periods. Prior to 1900, 36% (15/42) were Black; after 1900, 78%

(98/126) were Black.

The opposite is indicated for executed white

offenders, decreasing from 55% (23/42) prior to 1900 to 16% (20/126)

after 1900. Overall, for the 340 years of American executions of

14


persons for crimes committed while under age eighteen, two-thirds have

been Black persons and one-fourth have been White persons.
Table 3 breaks down the 168 executions by the offense which was the

basis for the death sentence.

Table 3

Comparison of Pre-1900 and Post-1900 Executions
For Crimes Committed While Under Age 18 According

to Offense

1642 1900
Offense to to Totals

1899 Present
Arson 2 (5%) QO (0%) 2 (1%)
Burglary 2 (5%) O (0%) 2 (1%)
Robbery QO (04) 2 (2%) 2 (1%)
Attempted Rape O (0%) 2 (2%) 2 (1%)
Rape O (04) 23 (152) 23 (14%)
Murder 38 (90%) 99 (79%) 137 (822)
Totals 42 (1002) 126 (101%) 168 (100%)

Murder is overwhelmingly the offense for which these executions
occurred, comprising 90% prior to 1900 and 79% after 1900. However,
there were 23 executions for rape and 2 executions for attempted rape
between 1908 and 1958, all 25 executed offenders being Black (see
Appendix B).

There have been no executions for crimes committed while under age
eighteen since 1961. However, at least 17 persons in that category

have been sentenced to death and are presently awaiting execution. Of

15

course, this is not the same category as the previous 168 cases of

actual executions but the characteristics of these 1/7 persons are
interesting. At the time their crimes were committed, one (6%) was 15
years old, five (29%) were 16 years old, and eleven (65%) were 17 years
old. Six (35%) are white and eleven (65%) are Black. Since none of
these persons has actually been executed, comparisons with the
indications from Tables 1, 2 and 3 should be made only with
considerable caution. However, note that the race and age
characteristics of these 17 persons awaiting execution seem to be
comparable to the race and age characteristics of the 168 persons

already executed.

Conclusions:

The 168 executions for crimes committed while under age 18 comprise
little more than 1% of the total of 13,000 executions. However,
capital punishment for children seems surprising in a country that so
dotes upon its children. If early reforms to the criminal justice
system for the benefit of children were to minimize the harshness of
criminal sentences, why is it that capital punishment was tolerated?
How can we explain 126 executions of children since 1900, the period of
operation of the magnificent socio-legal experiment called juvenile
justice?

If the phenomenon ended there, perhaps this could all be cast aside
as just another odd chapter in our history. The reemergence of capital
punishment in the past few years, complete with placing children on
death row, makes it clear that this issue is of current as well as

historical importance. Most state capital punishment statutes do not

16

prohibit executions of children, and the Supreme Court has come

perilously close to endorsing that position. The present state of the
law is that the youth of the offender must be considered as a
mitigating factor by the sentencing entity. However, that and other
mitigating factors can be overcome by the aggravating factors,
resulting in capital punishment for a child. The notion of a
governmental agency imposing the death penalty upon a child through its
justice proceedings raises the deepest questions about the demands of

justice versus the special nature of childhood.

17

Date

1642
4-2-1674
8-15-1722
12-1-1763

10-16-1784
12-20-1786

5-11-1787
7-25-1817
5-10-1821

11-18-1828

1837
9-30-1838
4-26-1844
6-5-1847
1-26-1866
1-26-1866
1-26-1866
1-26-1866
1-20-1871
2-10-1871
3-6-1874
5-18-1877
7-6-1877
10-3-1879
6-25-1880
6-25-1880
6-25-1880
1-25-1884
5-6-1885
3-22-1889
7-11-1890
8-29-1890
2-13-1891
10-7-1892
6-22-1894

10-19-1894

4-18-1895
7-26-1895
4-21-1897

12-17-1897

2-3-1898
6-16-1899

Executions of Persons Under Age Nineteen* in the

APPENDIX A

United States Prior to the Advent of the

Juvenile Justice System (1642-1899)

Name

Graunger, Thomas
Gourd, Benjamin
Battin, William
Bristol (slave)
Burke, James
Ocuish, Hannah
Clem (slave)

Tuhi, John

Clarke, Stephen M.

Guild, James (slave)

unknown
Mary (slave)
Keen, Rosan

Stepter, William H.

Crab, George
Lysaught, James
Ferry, Thomas
Knight, James
Welcome, Henry
unknown

Nuana, Joseph
Orr, Samuel
Thomas, Jack
Kemp, Joseph
Mann, George
Ohr, Gustav
Sammett, John
Anderson
Anderson, Mitchell
Barrett, Peter
Jones, Armistead
Lueth, Otto
Young, Frederick
Brown, Milbry
Whaley, William
Dooley, James
Hart, Charles
Taylor, William
Haas, William
Beard, Brad
Miller, William
Berry, John

18

Age Age
When Crime When
Committed Executed Race Offense Place
unk 16 White  Buggery MA
unk 17 White Buggery MA
unk 17 White Murder PA
unk 16 Black Murder MA
unk 17 White Murder PA
12 12 Indian Murder CN
12 12 Black Murder VA
unk 17 Indian Murder NY
15 16 White Arson MA
12 13 Black Murder NJ
unk 13 White Arson MA
16 17 Black Murder NJ
16 16 Black Murder NJ
unk 17 White Murder KY
unk 17 White Murder TN
unk 17 White Murder TN
unk 17 White Murder TN
unk 17 White Murder TN
unk 17 White Murder VT
unk 17 Black Murder IN
unk 17 Indian Murder WA
unk 15 White Murder MO
unk 15 Black Murder GA
14 25 White Murder AR
unk 17 White Murder OH
unk 16 White Murder OH
unk 16 White Murder OH
unk 17 White Murder IN
16 17 Indian Murder Choc.
16 17 White Murder MN
unk 16 Black Murder SC
15 16 White Murder OH
unk 17 Black Murder DE
unk 15 Black Murder SC
unk 18 Black Murder OH
unk 18 White Murder LO
unk 18 White Murder OH
unk 18 Black Murder OH
unk 16 White Murder OH
unk 14 Black Murder AL
16 16 Black Murder KY
unk 17 Black Murder MD

* Execution while under age nineteen is used as the cutoff under the
assumption that many of those eighteen-year-olds executed were seventeen or
younger when the crime was committed.

(Sources: Teeters & Zibulka, "Executions Under State Authority -- An
Inventory," included as Appendix A in W. BOWERS, EXECUTIONS IN
AMERICA 200-401 (1974); and additional data provided by Mr. Watt
Espy, Capital Punishment Research Project, The University of
Alabama School of law, in his letter, February 19, 1982.)

19

Date

7-20-1900
11-17-04
3-2-06
9-7-06
6-28-08
7-14-08
7-31-08
10-30-08
3-22-09
11-18-09
1-14-10
11-11-10
12-16-10
3-18-12
6-21-12
12-4-14
12-22-14
1-5-15
9-17-15
3-3-16
3-15-16
7-21-16
7-2-18
8-5-20
9-30-21
5-9-22
6-22-23
9-12-24
9-12-24
2-13-25
10-8-26
11-26-26
4-27-27
6-24-27
1-6-28
1-9-28
7-5-28
5-24-29
6-13-30
5-18-31
6-26-31
7-17-31
12-11-31

APPENDIX B

Executions of Persons Under Age Nineteen* in the

United States After the Advent of the

Juvenile Justice System (1900-Present)

Name

Cross, Charles
Watson, Joseph
White, William
Brown, Henry
Gibson, Mark
Sergi, Rosario
Dabner, Louis
Green, Winston

Christian, Arthrilius

Marcavich, Stanley
Spinher, Thurman
Eccles, John
Stilington, Henry
Christian, Virginia
Jackson, Byrd
Beard, Hurley
Ruggierri, Stefano
Sparks, Michael
Stanfield, Sherman
Oxnam, Charles E.T.
Ellis, Percy
Black, Willie
Bailey, Tolson
Ray, William
Haskins, Raleigh
Purpera, Samuel
Campbell, Lawrence
Lewis, Fritz
Clear, Otto
Gibson, Carroll
Williams, Pringle
Ross, Emanuel
Ferguson, Fortune
Dixon, Lonnie
Hewitt, Floyd
Coverson, John
Coleman, James
Jarman, Silas
Akers, Lee
Griffin, Fred
Groome, Calvin
Simpson, Charles H.
Ballard, J.W.

Age Age
When Crime When
Committed Executed Race
unk 18 White
unk 18 Black
unk 18 White
unk 18 Unk
16 17 Black
unk 17 White
unk 18 Unk
unk 17 Black
unk 17 Black
15 17 White
unk 18 Black
unk 17 Black
unk 17 Black
16 17 Black
unk 18 Black
unk 18 White
unk 17 White
unk 16 Black
unk 18 Black
unk 17 Unk
unk 16 Black
unk 18 Black
unk 17 Black
unk 18 Black
unk 18 Black
16 17 White
unk 18 Unk
unk 17 Black
unk 18 Black
unk 18 Black
unk 17 Black
unk 17 Black
unk 16 Black
unk 17 Black
unk 16 White
unk 18 Black
unk 18 Black
unk 17 Black
unk 17 White
unk 18 Black
unk 18 Black
unk 18 Unk
unk 17 Black

20

Offense Place
Murder CN
Murder CN
Murder WA
Murder CA
Murder TX
Murder PA
Murder CA
Att. Rape VA
Murder VA
Murder PA
Murder VA
Murder VA
Murder VA
Murder VA
Robbery VA
Murder OH
Murder NJ
Murder NJ
Att. Rape VA
Murder CA
Murder VA
Rape NC
Murder VA
Murder IN
Murder VA
Murder OH
Murder CA
Murder VA
Murder VA
Rape MD
Rape GA
Murder OH
Rape FL
Murder AR
Murder OH
Murder OH
Murder OH
Robbery TX
Murder OH
Murder GA
Rape VA
Murder CA
Murder NC


Date

2-9-32
4-15-32
5-20-32
8-11-33
8-11-33
8-11-33
8-14-33
8-25-33
1-12-34
7-6-34
1-21-35
4-25-35
9-6-35
9-16-35
10-4-35
3-6-36
1-21-37
5-24-37
7-9-37
7-23-37
8-13-37
12-10-37
1-28-38
8-19-38
9-23-38
12-9-38
1-26-39
6-23-39
7-12-39
2-16-40
10-18-40
11-11-40
5-23-41
7-17-41
12-29-41
12-29-41
12-29-41
3-20-42
6-30-42
9-17-42
10-30-42
5-28-43
6-25-43
7-8-43
7-8-43
7-8-43
8-20-43
12-11-43
1-14-44
2-3-44

Name

March, Eddie

Dubuc, Walter
Pannell, Sam
Morris, Richard
Sims, Richard
White, Mose

Murphy, Joseph
Oliver, George
Osborne, Will
Edwards, John L.
Dodson, Charles
Pluzdrak, Stanley
Miller, Caesar
Hasty, Monroe
Gosnell, Arthur
Bowen, Eddie B.
Fowler, Frederick
Brown, Leonard
Brown, Robert Glenn
Hinds, Robert
McNeill, Larry
Perry William
Milhouse, Frank
Whitfield, Willie J.
Jefferson, L.J.
Rucker, Charlie
Guariglia, Dominick
Swain, James

Young, Pang

Bryant, Nathaniel
Hicks, Henry William
Williams, Ivory Lee
Anderson, Charlie
Clark, William
Walker, Nathaniel
Powell, Edward
Clay, Willie B.
Soto, John A.
Giocamazza

Edwards, Lawrence
Harris, Otis
Franklin, Bernice
Gray, William C.
Dejesus, Benitez
Haight, Edward
Diaz, William
Sexton, Charles
Allison, S.A.

Hand, Louis V.
Hicks, Willie

Age Age
When Crime When
Committed Executed Race Offense Place
15 16 Black Murder GA
unk 17 White Murder WA
unk 18 Black Rape VA
unk 18 Black Murder GA
unk 18 Black Murder GA
unk 18 Black Murder GA
unk 18 Black Murder OH
unk 18 White Murder OK
unk 18 Black Rape GA
16 17 Black Murder NC
unk 17 Black Murder GA
unk 17 White Murder NY
unk 18 Black Murder NC
16 17 Black Murder FL
unk 18 White Murder NC
unk 18 Black Murder GA
unk 18 Black Murder NY
unk 18 Black Murder GA
unk 18 Black Murder NC
unk 17 Black Rape FL
unk 17 Black Murder NC
unk 18 Black Murder NC
unk 18 Black Murder AL
unk 17 Black Murder AL
unk 17 Black Murder NC
unk 18 Black Murder GA
unk 18 White Murder NY
unk 18 Black Murder IN
unk 18 Chinese Murder OH
unk 17 Black Murder NC
unk 18 Black Rape GA
unk 18 Black Murder FL
unk 18 Black Murder GA
unk 18 Black Rape AL
15 17 Black Murder FL
14 16 Black Murder FL
14 16 Black Murder FL
16 17 P.R. Murder OR
unk 17 White Murder MA
unk 18 Black Murder NY
unk 17 Black Rape NC
unk 17 Black Rape GA
unk 17 Black Murder KY
unk 18 Black Murder NY
16 17 White Murder NY
unk 18 Black Murder NY
unk 17 Black Murder GA
unk 17 Black Murder GA
unk 17 White Murder OH
unk 18 Black Rape GA

21


Date

6-16-44
7-9-44
8-31-44
10-9-44
10-9-44
5-11-45
1-25-46
11-15-46
11-22-46
6-30-47
8-1-47
8-9-47
1-8-48
3-5-48
8-20-48
10-25-48
1-6-49
8-12-49
9-12-49
9-12-49
5-25-50
6-15-54
6-15-54
11-8-54
11-19-54
1-7-55
2-10-55
1-19-56
9-28-56
3-19-57
3-28-58
4-10-59
11-24-61

Age Age
When Crime When

Name Committed Executed Race

Stinney, George unk 14 Black
Williams, David unk 17 Black
Bind, Lew York unk 18 Chinese
Lane, Freddie Lee unk 18 Black
Davis, James unk 16 Black
Watkins, David unk 18 Black
Johnson, Ernest unk 17 Black
Allen, Lee James 15 16 Black
Stevenson, Willie unk 17 Black
Reddick, Herbert L. unk 17 Black
Jones, Weldon, Jr. unk 18 Black
Loughbridge, Terrell unk 18 Black
Jackson, Jauvham unk 18 Black
Mangum, James unk 18 Black
Frohner, Donald unk 16 White
Stewart, Lacy 15 17 Black
Gray, Harriss unk 18 Black
Winters, J.C. unk 18 Black
Jones, John A., Jr. unk 17 Black
Jones, Wilbur G. unk 18 Black
Pulliam, John W. 16 17 Black
Miller, Herman Lee unk 18 Black
Jackson, Willie unk 17 Black
Beard, Abraham unk 18 Black
Jones, Joe Lee 16 17 Black
Morgan, James W. unk 18 White
Matthews, Henry unk 17 White

Roye, Norman unk 17 Black
Jackson, Melvin unk 18 Black
Coleman, Don Mitchell unk 18 Black
Reeves, Jeremiah unk 18 Black
Shockey, Leonard M. unk 17 Black
Johnson, Joe Henry unk 17 Black

Offense Place
Murder SC
Rape TX
Murder NY
Rape FL
Rape FL
Murder GA
Murder AL
Rape GA
Murder GA
Murder GA
Murder MD
Murder GA
Murder NY
Rape GA
Murder OH
Murder FL
Murder NY
Murder AL
Murder GA
Murder GA
Murder MI
Rape GA
Rape GA
Rape FL
Murder GA
Murder GA
Murder NY
Murder NY
Rape AL
Murder GA
Rape AL
Murder MD
Murder AL

* Execution while under age nineteen is used as the cutoff under the

assumption that many of those eighteen-year-olds executed were seventeen or

younger when the crime was committed.

(Sources:

22

Teeters & Zibulka, "Exceptions Under State Authority - An
Inventory," included as Appendix A in W. BOWERS, EXECUTIONS IN
AMERICAN 200-401 (1974); and additional data provided by Mr. Watt
Espy, Capital Punishment Research Project, The University of

Alabama School of Law, in his letter, February 19, 1982.)

(Source:

APPENDIX C

PERSONS UNDER AGE EIGHTEEN AT THE TIME OF

OFFENSE AWAITING EXECUTION AS OF MAY 1, 1981

Name
Ice, Todd
High, Jose

Johnson, Johnny
Marshall, Joseph
Smith, Reginald
Eddings, Monty
Valencia, Frank
Simpson, Willie
Gibson, Sam
Legare, Andrew
Brown, Joseph
Prejean, Dalton
Boutwell, John
Roach, James
Tyner, Rudolph
Battie, Billie
Earvin, Harvey

Brief for Petitioner at 19a, Eddings v. Oklahoma, 102 S.

Age

When Crime
Committed

15
16
16
16
16
16
17
17
17
17
17
17
17
17
17
17
17

869 (January 19, 1982).

23

Race

White
Black
White
Black
Black
White
White
Black
Black
Black
Black
Black
White
White
Black
Black
Black

State

Kentucky
Georgia
Georgia
Louisiana
Louisiana
Oklahoma
Arizona
Florida
Georgia
Georgia
Louisiana
Louisiana
Oklahoma

South Carolina
South Carolina
Texas

Texas


l.

2.

FOOTNOTES

This paper is based in part upon an earlier paper, "Death Penalty

for Children: State Execution for Crimes Committed While Under Age

Eighteen," presented at the Annual Meeting of the Academy of

Criminal Justice Sciences, Louisville, Kentucky, on March 24, 1982.

Eddings v. Oklahoma, 102 S. Ct. 869(January 19, 1982).

See, e.g., N.Y. Fam. Ct. Act §712(a) (ii) (McKinney Supp. 1979);

N.Y. Penal Law §§10(18), 30 (McKinney Supp. 1979); N.Y. Crim. Proc.

Law §§180.75, 190.71, 210.43, 220.10(5)(g) (McKinney Supp. 1980).

See, e.g., Kent v. United States, 383 U.S. 541 (1966).

. Gregg v. Georgia, 428 U.S. 153 (1976), held that capital

punishment statutes were not inherently unconstitutional. There
have been four executions since then: Gary Gilmore (January 17,
1977); John Spenkeling (May 25, 1979); Jesse Bishop (October 22,
1979); and Steven Judy (March 9, 1981).

4 W. BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND 23-24 (1792);
1 HALE, PLEAS OF THE CROWN 25-28 (1682).

Id.

In Re Gault, 387 U.S. 1, 16 (1967).

1 L. RADZINOWICZ, A HISTORY OF ENGLISH CRIMINAL LAW AND ITS
ADMINISTRATION FROM 1750: THE MOVEMENT FOR REFORM 11 (1948).
Knell, "Capital Punishment: Its Administration in Relation to
Juvenile Offenders in the Nineteenth Century and its Possible
Administration in the Eighteenth, 5 BRIT. J. DELINQ. 198, 199

(1965).

24

i i

10. Platt & Diamond, "The Origins of the 'Right and Wrong' Tests of
© Criminal Responsibility and Its Subsequent Development in the
United States: An Historical Survey," 54 CALIF. L. REV. 1227,
1246-47 (1966); see also A. PLATT, THE CHILD SAVERS: THE INVENTION
OF DELINQUENCY 211-12 (2nd ed. 1977).
11. Platt & Diamond, supra note ll, at 1246-47, citing Godfrey v.
State, 31 Ala. 323 (1858), and State v. Guild, 10 N.J.L. 163
(1828).
12. People v. Teller, 1 Wheeler Crim Law Cases 231, 233 (N.Y. City
Court, 1823).
13. W. SMITHERS, TREATISE ON EXECUTIVE CLEMENCY IN PENNSYLVANIA
(1909); Wolfgang, Kelly and Nolde, "Comparison of the Executed and
the Commuted Among Admissions to Death Row," 53 J. CRIM. L., C. &
P.S. 301 (1962).
© 14. Fox, "Juvenile Justice Reform: An Historical Perspective," 22
STAN. L. REV. 1187 (1970).
15. In Re Gault, 387 U.S. 1, 15-16 (1967).

16. See, generally, S. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE

JUSTICE SYSTEM (2d, 1981).

17. Mennel, Origins of the Juvenile Court: Charging Perspectives on
the Legal Rights of Juvenile Delinquents, 18 CRIME & DELINQUENCY 68
(1972).

18. A. PLATT, supra, note 10; Fox, supra, note 14.

19. See, generally, V. STREIB, JUVENILE JUSTICE IN AMERICA 5-7 (1978);

and Rupert, "Juvenile Criminal Proceedings in Federal Courts, 18
LOYOLA LAW REVIEW 133 (1971-72).

20. S. DAVIS, supra, note 16, at 2-12.

25


21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.

In Re Gault, 387 U.S. 1, 50-51 (1967).

Breed v. Jones, 421 U.S. 519, 535 (1975).
Kent v. United States, 383 U.S. 542, 550 (1966).
S. DAVIS, supra, note 16, 2-15 to 2-17.

See, e.g., N.C. Gen. Stat. §7A-608 (Supp. 1979).

S. DAVIS, supra, note 16, at 2-17 to 2-19.
Patrick, "The Status of Capital Punishment: A World Perspective,"

56 J. CRIM. L., C. & P.S. 397, 398-403, 410 & Table 1 (1965).

International Covenant on Civil and Political Rights, entered into

force March 23, 1976, G.A. Res. 2200A, 21 U.N.G.A.O.R., supp. (No.

16) 49, 52, U.N. Doc. A/63/6 (1967) art. 6(5).

See, e.g., P. STRASBURG, VIOLENT DELINQUENTS (1978): TWENTIETH

CENTURY FUND TASK FORCE ON SENTENCING POLICY TOWARD YOUNG
OFFENDERS, CONFRONTING YOUTH CRIME (1978); Feld, "Juvenile Court
Legislative Reform and the Serious Young Offender: Dismantling the
"Rehabilitative Ideal,'" 1981 MINN. L. REV. 1673; and Feld,
"Reference of Juvenile Offenders for Adult Prosecution: The
Legislative Alternative to Asking Unanswerable Questions," 1978
MINN. L. REV. 515.

Washington Post, June 26, 1981, at A-19, col. 1 (reporting results
of Gallup Poll).

TIME, June 1, 1981, at 13, col. 3.

Ingraham v. Wright, 430 U.S. 651, 667 (1977).

Massachusetts Board of Retirement v. Mugia, 427 U.S. 307 (1976);
Vance v. Bradley, 440 U.S. 93 (1979).

Furman v. Georgia, 408 U.S. 238 (1972).

26


35.

36.

37.
38.

39.

40.

41.
42.
43.
44,
45.
46.
47.

48.

49.

50.
51.
52.
nk
54.

55.

Gregg v. Georgia, 428 U.S. 153 (1976); Profitt v. Florida, 428

U.S. 242 (1976); and Jurek v. Texas, 428 U.S. 262 (1976).
Woodson v. North Carolina, 428 U.S. 280 (1976); and Roberts v.
Louisiana, 428 U.S. 325 (1976).

(Harry) Roberts v. Louisiana, 431 U.S. 633 (1977).

Coker v. Georgia, 433 U.S. 584 (1977).

Lockett v. Ohio, 438 U.S. 586 (1978); Bell v. Ohio, 438 U.S. 637
(1978).

Gregg v. Georgia, 428 U.S. 153, 187 (opinion of Stewart, J.,
Powell, J., and Stevens, J.) (1976).

Lockett v. Ohio, 438 U.S. 586, 604 (1978).

Lockett v. Ohio, 438 U.S. at 608.

Gregg v. Georgia, 428 U.S. 153, 197 (1976).

Jurek v. Texas, 428 U.S. 262, 272-73 (1976).

(Harry) Roberts v. Louisiana, 431 U.S. 633, 637 (1977).

Bell v. Ohio, 438 U.S. 637, 641 (1978).

Eddings v. Oklahoma, 102 S. Ct. 869(January 19, 1982).

Eddings v. Oklahoma, 450 U.S. 1040 certiorari granted, No. 80-5727

(April 6, 1981).

Brief for Petitioner at i, Eddings v. Oklahoma, 102 S. Ct. 869
(January 19, 1982).

Id.

Eddings v. Oklahoma, 102 S. Ct. 869 (Burger, C.J., dissenting).
Eddings v. Oklahoma, 102 S. Ct. at 877.

Eddings v. Oklahoma, 102 S. Ct. at 883 (Burger, C.J., dissenting).

Eddings v. Oklahoma, 102 S. Ct. at 8/77.

Eddings v. Oklahoma, 102 S. Ct. at 879 (O'Connor, J., concurring).

27

56.

57.

58.

59.

60.

6l.

Gregg v. Georgia, 428 U.S. 153, 179 (1976).

AMERICAN LAW INSTITUTE, MODEL PENAL CODE §210.6(1) (d) (Proposed
Official Draft, 1962).

NEV. REV. STAT. §176.025 (1973 & Supp. 1977).

TEXAS PENAL CODE ANN., tit. 2, §8.07(d) (Vernon Supp. 1980-1981).
CAL. PENAL CODE §190.5 (West Supp. 1980); COLO. REV. STAT.
§16-11-103(5) (a) (1978); CONN. GEN. STAT. ANN. §53a-46a(f) (1) (West
Supp. 1980); and ILL. REV. STAT. ch. 38, §9-1(b) (Smith Hurd Supp.
1978).

1981 ALA. ACTS, §13(g); ARIZ. REV. STAT. §13-703G.5 (Supp. 1980);
ARK. STAT. ANN. §41-1304(4) (Supp. 1979); CAL. PENAL CODE

§190.3(i) (West Supp. 1980); COLO. REV. STAT. ANN. §16-11-103
(5.1) (£) (1978); CONN. GEN. STAT. ANN. §53a-46a(f£) (West Supp. 1980);
FLA. STAT. ANN. §921.141(6)(g) (West Supp. 1981); KY. REV. STAT.
§532.025(b) (8) (Supp. 1980); LA. CODE CRIM. PRO. ANN. art.

905.5(£) (Supp. 1981); MD. CRIM. LAW CODE ANN. §413(g) (5) (Supp.
1980); MISS. CODE ANN. §99-19-101(6)(g) (Supp. 1979); MO. REV. STAT.
§565.012(3)(7) (Supp. 1981); MONT. REV. CODES ANN. §46-18-304(7)
(1979); NEB. REV. STAT. §29-2523(2) (d) (1979); NEV. REV. STAT.
§200.035(6) (1979); N.H. REV. STAT. ANN. §630:5 II(b)(5) (Supp.
1979); N.M. STAT. ANN. §31-20A-6 I(Supp. 1980); N.C. GEN. STAT.
§15A-2000(f£) (7) (Supp. 1979); OHIO REV. CODE , 18 PA. CONS.
STAT. ANN. §1311(e) (4) (Purdon 1980); S.C. CODE §16-3-20(c) (b) (7)
(Supp. 1980); TENN. CODE ANN. §39-2404(j) (7) (Supp. 1980); UTAH CODE
ANN. §76-(a) (b) (7) (Supp. 1979); VA. CODE §19.2-264(B) (V) (Supp.

1980); WYO. STAT. ANN. §6-4-102(4) (vii) (Supp. 1980).

28

62.

64.

S. 114, 97th Cong., lst Sess., 127 Cong. Rec. S. 162 (1981),

§3562A(g) (1) (defendant under age 18 at time of crime).

. See, e.g., High v. State, 276 S.E.2d 5 (Ga. 1981); State v.

Prejean, 379 So.2d 240 (La. 1979); State v. Shaw, 273 S.C. 194, 255
S.E.2d 799 (1979); and State v. Valencia, 124 Ariz. 139, 602 P.2d
807 (1979).

See, e.g., Bracewell v. State, So.2d (Ala. Cr. App. 1980)

("We would likewise direct the trial court to carefully reconsider
the imposition of the death sentence where two mitigating
circumstances weigh heavily in the appellant's favor, i.e., her
young age and the dominance of the husband, her senior by several
years." Id. at ___); Coleman v. State, 378 So.2d 640 (Miss.

1979) (court reduced the death sentence of a 16-year-old. "Only
after being fired upon did the 16-year-old shoot. Again, Coleman
had the opportunity to shoot (the victim's wife), who was an
eyewitness, but did not."); Vasil v. State, 374 So.2d. 465 (Fla.
1979) (court reduced 15-year-old's death sentence); State v.
Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977) (court reduced death
sentence of a l6-year-old. "The issue is not whether his age
"excuses' the murder. Obviously, it does not, and defendant has
been convicted of premeditated murder....After weighing the
aggravating and mitigating circumstances in this case we conclude
that the defendant's age at the time of the crime and the absence
of any significant criminal record mitigate strongly against the
imposition of the death penalty upon Rodney Stewart; and that the
public will be served and justice done by sentencing him to a term
of life imprisonment." Id. at 197 Neb. 524-25, 250 N.W.2d at

865-66.).

29


65.

66.

Lockett v. Ohio, 438 U.S. 586, 604 & 608 (1976).
Letter, February 19, 1982, from Mr. Watt Espy, Capital Punishment
Research Project, The University of Alabama School of Law,

University, Alabama 35486.

30