Ending the Death Penalty for Juveniles by Victor L. Streib, 2003 April 5

ENDING THE DEATH PENALTY FOR JUVENILES
by

Victor L. Streib
Professor of Law
Ohio Northern University
y-streib@onu.edu
(419) 772-2207

| # *% Presented at the
i ANNUAL GENERAL MEETING
of

AMNESTY INTERNATIONAL USA

in
Pittsburgh, Pennsylvania
U.S.A.

April 5, 2003

©
Victor L. Streib
2003

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EXECUTIVE SUMMARY

In the United States, an alleged murderer who was legally a child at the time of the crime can
receive the death penalty and be executed for that crime. This death penalty for juvenile offenders,
those under age 18 at the time of their crimes, is almost exclusively an American practice, having
essentially disappeared everywhere else in the world. Amnesty International U.S.A. (ATUSA), along
with many other national and international organizations, are leading the global effort to end the
death penalty for juveniles as “killings that no respectable government can condone.”’ The annual
death sentencing rate for juvenile offenders has fallen off sharply, and only a very few American
states continue to impose such sentences. Even once sentenced to death, only 15% of juvenile
offenders are actually executed. While actual executions in these cases continue to occur at a low
level, they have become limited to only a very few states, with Texas leading the way by far. The
most recent possible juvenile execution was that of Scott Hain, age 17 at the time of his crime. Hain
was scheduled for execution by Oklahoma on April 3, 2002, but the data in this report were compiled
prior to that date.

The efforts of AIUSA and others are having a marked effect. Essentially every other country
in the world except for the United States has abandoned the death penalty for juveniles. Not only
do the domestic laws of these nation states forbid this practice, but it is also forbidden by several
international treaties. One such treaty outlawing the death penalty for juvenile offenders is the
United Nations Convention on the Rights of the Child, ratified by every country in the world except
for the United States. In addition to express provisions in treaties, customary international law (jus
cogens) also forbids such executions. Even though the United States continues to authorize this
practice in defiance of international law, our death penalty for juvenile offenders is slowly but surely
disappearing. Our Supreme Court has prohibited the death penalty for offenders under age 16, and
more and more states are prohibiting it for those under age 18. This worldwide campaign to abolish
this practice had its beginnings in the early 1980s, and it has become a movement that cannot be

denied. The only remaining question is when, not whether, America will stop executing child
offenders.

About the Author

Victor L. Streib is a law professor at Ohio Northern University and an attorney defending juvenile
offenders sentenced to death. His books on this issue include Death Penalty in a Nutshell (2003), Capital
Punishment Anthology (1993), and Death Penalty for Juveniles (7987). His most recent articles on the
juvenile death penalty are in the Stanford Law & Policy Review (2003) and the New Mexico Law Review
(2003). As an attorney, he has served as appellate counsel for juveniles sentenced to death before the United
States Supreme Court (Thompson v. Oklahoma, 487 U.S. 815 (1988)), before the Organization of American
States, and before the state supreme courts of Florida, Indiana, and Kentucky. He has testified about this
issue before the United States Congress and several state legislatures, and he has appeared as an expert
witness in juvenile death penalty cases around the country.

*Amnesty International, United States of America: A Killing That No Respectable Government Can Condone
(March 4, 2003) (AMR 51/033/2003).

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JUVENILE DEATH SENTENCES IMPOSED ”

Juvenile offenders have been sentenced to death since our earliest colonial days, but the
current death penalty era began in 1973 with the enactment of modern death penalty statutes.

A total of 224 juvenile death sentences have been imposed since 1973, only 3% of the total
of the approximately 7,251 death sentences imposed for offenders of all ages.

Just under 71% of these juvenile death sentences have been imposed on 17-year-old
offenders, the other 29% on offenders ages 15 and 16, and none on offenders age 14 or
younger at the time of their crimes.

Of these 224 juvenile death sentences imposed in the current era, only 80 (36%) remain
currently in force.

For the 144 juvenile death sentences finally resolved either by reversal or execution, the
reversal rate is 85% (123/144), excluding the 80 current death row inmates remaining under
juvenile death sentences but still litigating them.

Only 15% (21/144) of finally resolved juvenile death penalty cases have resulted in actual
execution, while 22% of adult death sentences have resulted in actual execution.

The rate of juvenile death sentencing fluctuated considerably in the early years of this current
era but then settled into a consistent annual rate of a little over 2% of total death sentences
in the mid-1980s.

In the mid- to late-1990s, death sentencing of juvenile offenders stayed at a steady rate of
about 10 to 15 each year or about 3% to 5% of all death sentences.

In the last few years, the juvenile death sentencing rate has declined significantly. Only 7
such sentences were imposed annually in 2000 and 2001, only half of the typical rate in the
preceding 6 years.

In 2002, only 4 juvenile death sentences were imposed, the lowest number since the late
1980s.

These 224 juvenile death sentences have been imposed in 22 individual states, comprising
well over half of the death penalty jurisdictions during this time period. Table One below
lists all death penalty jurisdictions which have imposed juvenile death sentences since 1973.

*The information in these sections is excerpted from Victor L. Streib, The Juvenile Death Penalty Today: Death

Sentences and Executions for Juvenile Crimes, January 1, 1973 - December31, 2002 (Jan. 9, 2003) (available at
http://www.law.onu.edu/faculty/streib/juvdeath.pdf (or .htm)).

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Rank & State

1:
2
3
4:
5
6

8:

11:

14:
15:

19:
20:

Texas

: Florida
: Alabama

Louisiana

: Mississippi
: Georgia

North Carolina
Oklahoma
Pennsylvania
South Carolina
Arizona

Ohio

Virginia
Missouri
Indiana
Kentucky
Maryland
Nevada
Arkansas
Nebraska

New Jersey
Washington

Totals:

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Asian Black Latin White Male

TABLE ONE
STATE-BY-STATE BREAKDOWN OF JUVENILE DEATH SENTENCES,
JANUARY 1, 1973, THROUGH DECEMBER 31, 2002

Race of Offender

Sex of

Offender

Age at Crime

Female 15

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more such sentences.

17
2
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0
0
1
0
0
0
3
0
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0
0
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0
2
0
0
0
0

25

14

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158

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224

Texas (57 sentences) is the clear leader in this practice, followed at quite a distance by
Florida (31 sentences) and then Alabama (24 sentences). These 3 states together account for
exactly half (112/224) of all juvenile death sentences. Only 7 states have imposed 10 or

Juvenile death sentences for black and white juvenile offenders appear to be spread around

the sentencing jurisdictions fairly evenly, but the 24 of the 25 Latin offenders are in Texas,
Arizona, Florida and Nevada.

Almost all (98%) juvenile offenders sentenced to death were males. The 5 cases involving
female juveniles were in the deep south (Mississippi, Alabama, and Georgia) and in Indiana.

The 13 very young offenders (age 15 at crime) were scattered across 10 different states.

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JUVENILE OFFENDERS ACTUALLY EXECUTED

Actual execution of juvenile offenders sentenced to death began in 1642 (Thomas Graunger,
Plymouth Colony, Massachusetts).’

In the over three and one-half centuries since that time, at least 365 juvenile offenders have
been executed, an average of almost exactly one per year.

These 365 juvenile offender executions have been imposed by 38 states and the federal
government, and they constitute less than 2% of the total of about 20,000 confirmed
American executions since 1608.

Twenty-one of these 365 executions for juvenile crimes have been carried out during the
current era (1973-2002). They constitute 2.6% of the 820 total executions during this period,
an execution rate only slightly higher than had been experienced prior to 1973. These 21
executions are listed in Table Two on the next page.

All but one of these executed juvenile offenders were age 17 at the time of their crimes, with
only Sean Sellers (Oklahoma) being age 16.

Only 43% of executed juvenile offenders have been white, while 56% of executed adult
offenders have been white.

The periods on death row awaiting execution for these executed juvenile offenders ranged
from 6 years to over 20 years, resulting in the age at execution ranging from 23 to 38.

Even if juvenile executions were to disappear altogether, Texas could still carry out 95% of
its executions and Virginia could continue 97% of its executions. In the rest of the entire
United States, 99% of all executions are of adult offenders.*

>For a history of juvenile executions, see VICTOR L. STREIB, DEATH PENALTY FOR JUVENILES

(Indiana University Press, 1987).

4 See Victor L. Streib, Executing Juvenile Offenders: The Ultimate Denial of Juvenile Justice, 14 STANFORD

LAW & POLICY REVIEW (2003).

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TABLE TWO
EXECUTIONS OF JUVENILE OFFENDERS,
JANUARY 1, 1973, THROUGH DECEMBER 31, 2002

Date of Place of Race & Sex of Ageat Age at
Name Execution Execution Offender/Victim Crime Execution
Charles Rumbaugh 9-11-1985 Texas WM / WM 17 28
J. Terry Roach 1-10-1986 So. Car. WM / WM,WF 17 25
Jay Pinkerton 5-15-1986 Texas WM / WE,WF 17 24
Dalton Prejean 5-18-1990 Louisiana BM / WM 17 30
Johnny Garrett 2-11-1992 Texas WM / 17 28
Curtis Harris 7-1-1993 Texas BM / 17 31
Frederick Lashley 7-28-1993 Missouri BM / 17 29
Ruben Cantu 8-24-1993 Texas LM / 17 26
Chris Burger 12-7-1993 Georgia WM / 17 33
Joseph John Cannon 4-22-1998 Texas WM / 17 38
Robert A. Carter 5-18-1998 Texas BM / LF 17 34
Dwight A. Wright 10-14-1998 Virginia BM / BF 17 26
Sean R. Sellers 2-4-1999 Oklahoma WM / WM,WM,WE 16 29
Christopher Thomas 1-10-2000 Virginia WM / WF 17 26
Steve E. Roach 1-19-2000 Virginia WM / WF 17 23
Glen C. McGinnis 1-25-2000 Texas BM / WF 17 27
Gary L. Graham 6-22-2000 Texas BM / WM 17 36
Gerald L. Mitchell 10-22-2001 Texas BM / WM 17 33
Napoleon Beazley 5-28-2002 Texas BM / WM 17 25
T.J. Jones 8-8-2002 Texas BM / WM 17 25
Toronto Patterson 8-28-2002 Texas BM / BF 17 24

JUVENILE OFFENDERS ON DEATH ROW AT THE END OF 2002°

(37) As of December 31, 2002, a total of 80 persons were on death row under death sentences
received for juvenile crimes. These 80 condemned juvenile offenders constituted 2% of the
total death row population of 3,697.

(38) Although all were ages 16 or 17 at the time of their crimes, their current ages range from 18
to 41.

(39) Alljuvenile offenders currently under death sentences are male and have been convicted and
sentenced to death for murder.

>For a complete list of these death row prisoners and information about their cases, see Victor L. Streib, The
Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973 — December31,
2002 (Jan. 9, 2003) (available at http://www.law.onu.edu/faculty/streib/juvdeath.pdf (or .htm)).

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These 80 juvenile offenders currently are under death sentences in only 14 of the 23 states
which authorize the death penalty for juvenile offenders, and they have been on death row
from only a few weeks to over 22 years. Texas has by far the largest death row for juvenile
offenders, holding 28 (35%) of the national total of 80 juvenile offenders

In the past, only about 15% of those juvenile offenders on death row have been actually
executed. However, this percentage appears to be increasing.

DOMESTIC LAW CONCERNING THE
DEATH PENALTY FOR JUVENILE OFFENDERS

In Thompson v. Oklahoma (1988),° the United States Supreme Court held that executions of
offenders age 15 and younger at the time of their crimes are prohibited by the Eighth
Amendment to the United States Constitution.

In Stanford v. Kentucky (1989),’ the United States Supreme Court held that the Eighth
Amendment to the United States Constitution does not prohibit the death penalty for crimes
committed at ages 16 or older, regardless of state statutory provisions.

In Atkins v. Virginia (2002),* the United States Supreme Court held that the United States
Constitution prohibits the death penalty for mentally retarded offenders, based upon
reasoning closely analogous to the arguments concerning juvenile offenders.

Given the reasons why mentally retarded offenders are not eligible for the death penalty, it
is nearly impossible to distinguish juvenile offenders from this death penalty exclusion.”

In Patterson v. Texas (2002),'° the United States Supreme Court denied a stay of execution
and petition for certiorari from Toronto Patterson, a juvenile offender about to be executed.
However, Justice Stevens dissented (joined by Justices Ginsburg and Breyer), stating that the
Court should revisit the issue of the death penalty for crimes committed while under age 18.

6487 U.S. 815 (1988).
7492 U.S. 361 (1989).
8536 U.S. 304 (2002).

° See Victor L. Streib, Adolescence, Mental Retardation, and the Death Penalty: The Siren Call of Atkins v.

Virginia, 33 NEW MEXICO L. REV. (2003).

10193 S.Ct. 24 (2002).

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In In re Stanford (2002),'', the United States Supreme Court decided not to hear arguments
in the case, over a strong dissent by Justice Stevens (joined by Justices Breyer, Ginsburg, and
Souter). These four Justices not only wanted to revisit the juvenile death penalty issue but
were ready to declare it unconstitutional:

“The practice of executing such [juvenile] offenders is a relic of the past and is
inconsistent with evolving standards of decency in a civilized society. We should put
an end to this shameful practice.”

Despite being within one vote in October 2002 of doing away with the American death
penalty for juveniles, the United States Supreme Court has not yet taken that last step. As
of April 2003, this practice remains permissible under the United States Constitution.

Most recently, the Court refused to hear the case of Scott Hain, age 17 at the time of his
crime.'? As of this writing, Hain is scheduled for execution in Oklahoma on April 3, 2003.

The Florida Supreme Court in Brennan v. State’ interpreted its own Florida Constitution to
prohibit the death penalty for 16-year-old offenders as well. Other states also have
considered imposing a higher minimum age than is mandated by the Federal Constitution,
using their own State Constitution as the mandating authority.

Currently, 38 states and the federal government (both civilian and military) have statutes
authorizing the death penalty for capital crimes, almost all of which are forms of murder.
Of those 40 death penalty jurisdictions, 18 jurisdictions (45%) have expressly chosen age 18
at the time of the crime as the minimum age for eligibility for that ultimate punishment.
Another 5 jurisdictions (13%) have chosen age 17 as the minimum. The other 17 death
penalty jurisdictions (42%) use age 16 as the minimum age, either through an express age
in the statute (5 states) or by court ruling (12 states). Table Three on the next page lists the
individual states in each category

*7123 S.Ct. 472 (2002).

+2193 S.Ct. at 475.

13Hain v. Mullin, 123 S.Ct. 993 (Jan. 27, 2003).
14754 So.2d 1 (Fla. 1999).

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TABLE THREE
MINIMUM DEATH PENALTY AGES

BY JURISDICTION AS OF DECEMBER 31, 2002

Age Eighteen

Age Seventeen

Age Sixteen

California Florida Alabama
Colorado Georgia Arizona
Connecticut New Hampshire Arkansas
Illinois North Carolina Delaware
Indiana Texas Idaho
Kansas Kentucky
Maryland 5 states Louisiana
Montana Mississippi
Nebraska Missouri
New Jersey Nevada
New Mexico Oklahoma
New York Pennsylvania
Ohio South Carolina
Oregon South Dakota
Tennessee Utah
Washington Virginia
Federal Civilian Wyoming
Federal Military

17 states

16 states and
2 federal jurisdictions

Some political consideration of Jowering the statutory minimum age to 16 has occurred in
the past few years, but it has been minimal. No state has done so during the current death
penalty era, and no record has been found of this occurring at any other time in American
history.

Conversely, considerable legislative activity can be seen to raise the statutory minimum age
eighteen. When Kansas and New York reenacted their death penalties in 1994 and 1995,
respectively, their new statutes included minimum ages of 18 as well. Montana enacted
legislation in 1999 to raise its minimum age to 18, and Indiana raised its minimum age to 18
in 2002.

As of the end of 2002, many other states are strongly considering legislative amendments to
raise their minimum death penalty ages to age 18. This legislation has progressed at least
partway to adoption in Arkansas, Florida, Kentucky, South Dakota, and Texas, and bills also
have been introduced in Arizona, Mississippi, Missouri, Nevada, and Pennsylvania. This is
the most legislative attention to this issue in past twenty years.

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Thirteen American jurisdictions remain without the death penalty at all: Alaska, District of
Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode
Island, Vermont, West Virginia, and Wisconsin.

INTERNATIONAL LAW ISSUES

The death penalty for juvenile offenders has become a uniquely American practice, in that
it has been abandoned legally by nations everywhere else due to the express provisions of the
Convention on the Rights of the Child'’ and of several other international treaties.'°

The United Nations Convention (Article 37(a)) provides that:

"Neither capital punishment nor life imprisonment without possibility ofrelease shall
be imposed for offences committed by persons below eighteen years of age.""’

The Convention is the most widely-approved international treaty in history.'* The United
States is the only country in the world that has not yet ratified this international agreement,
in large part because of our desire to remain free to retain the death penalty for juvenile
offenders.

This essentially worldwide ban on the death penalty for juvenile offenders has now evolved
through customary international law to the status of jus cogens, a peremptory norm of
international law.”

15United Nations Convention on the Rights of the Child, G.A. Res. 1386 (XIV), 1 U.N. GAOR, 14" Sess.,

Supp. No. 16, at 19, U.N. Doc, A/4354 (1959).

International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, art. 6(5), 999

U.N.T.S. 171; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 68,
75 U.N.T.S. 286; and American Convention on Human Rights, opened for signature Nov. 22, 1969, art 4(5), 1144
U.N.T.S. 143, 146.

17United Nations Convention on the Rights of the Child, G.A. Res. 1386 (XIV), 1 U.N. GAOR, 14" Sess.,

Supp. No. 16, at 19, U.N. Doc. A/4354 (1959).

18 See www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/iv_12.htm1

*°For an excellent description of this point, see Connie de la Vega, Amici Curiae Urge the U.S. Supreme Court

to Consider International Human Rights Law in Juvenile Death Penalty Case, 42 Santa Clara Law Review 1041 (2002).

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The Inter-American Commission on Human Rights of the Organization of American States

has confirmed that the execution of juvenile offenders violates the international norm of jus
20

cogens.

A very few rogue executions of juvenile offenders in 2 or 3 countries outside of the United
States have occurred in last decade, despite the legal ban on this practice. These rogue
executions are not seen in any way as a rejection either of the international treaties or of the
customary international law (jus cogens) forbidding such executions.”!

Texas is the only jurisdiction in the world that continues to execute juvenile offenders on a
regular, official basis.”

ENDING THE DEATH PENALTY FOR JUVENILES:

The death penalty for juvenile offenders is a failure in the effort to reduce violent juvenile
crime. Clinging to this attractive but ultimately hollow "quick fix" both leaves us with a
false belief that we are reacting rationally to the problem and prevents us from seeking
effective solutions to violent juvenile crime.

Juvenile death penalty advocates argue that such punishments will "send a message" to other
teenagers contemplating violent acts, deterring them from carrying out their acts. They
assume that young teenagers engage in an informed cost/benefit analysis before committing
violent acts. However, it is clear that young teenagers instead act impulsively and without
careful planning, and they do not give serious thought to the threat of the death penalty for
their acts.

The long-term solution is not simply to execute violent teenagers. We must reduce the
probability that teenagers will become violent in the first place. Our primary attention should
be not on 16-year-old Johnny who kills people, but on Johnny's younger brothers who will
grow up to be just like him.

20Report No. 62/02, Case No. 12.285, Michael Domingues, United States (Oct. 22, 2002).

21 See Amnesty International, United States of America: Indecent and Internationally Illegal: The Death

Penalty Against Child Offenders (Sept. 25, 2002) (AMR 51/143/2002).

22 See Amnesty International, United States of America: Indecent and Internationally Illegal: Too Young to

Vote, Old Enough to be Executed: Texas Set to Kill Another Child Offender (July 2001) (AMR 51/105/2001).

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We may have to place violent teenagers in prison for as long as necessary, but we also must
work with families, neighborhoods, and communities to change the lives ofall of these child
offenders. Only then will we be on the path to justice and prevention for juvenile homicide.

As we refocus our concern about juvenile homicide away from punishing the last crime and
toward preventing the next crime, America should join the rest of the world in ending the
death penalty for juvenile offenders. It is unnecessarily harsh punishment for the last
offender and does nothing to prevent the behavior of the next offender.

AIUSA must continue its leadership role in the abolition of the juvenile death penalty. We
need all of you to work with us make this happen. Thank you.

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