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Abstract

In 1988, the Supreme Court outlawed death penalty for juvenile offenders below 16, while a 1989 decision in STANFORD V. KENTUCKY declined to outlaw capital punishment for juveniles aged between 16 and 18. In ROPER V. SIMON (2005), the constitutionality of death penalty for juveniles was challenged. The United States Supreme Court ruled that the death penalty for juveniles aged between 16 and 17 was unconstitutional since it was cruel and unusual. This did not, however, lead to a complete ban on juvenile death penalty for youngsters below the age of 18 (Bradley, 2006). Those who advocate for the death penalty for juvenile offenders insist that punishment should be based solely on the nature of the offence committed regardless of age. Those who oppose the death penalty for juveniles argue that juveniles are at the transitional, turbulent adolescent stage of life and are yet to develop full cognitive abilities, impulse and emotional control. Their brain is not fully developed, and they are faced with identity crisis and self-esteem issues (Bradley, 2006). This paper reviews both sides of the argument on why the death penalty should be retained and why it should be abolished. The discussion reaches the conclusion that the death penalty for juveniles should be outlawed.

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Introduction

The first juvenile offender was executed in the United States in 1692. Since then, almost 362 juvenile convicts have been sentenced to death row at both the state and the federal levels. To date, juvenile executions account for 1.8% of the total convictions carried out by the United States since the year 1968 (Fabian, 2010). In 1899, Jane Addams, having recognized the vulnerable nature of juvenile offenders as compared to adult offenders, started a separate justice system for juveniles in Illinois. The objective of the initiative was to save children from the destructive nature of punishments given by the mainstream courts and to rehabilitate them individually. Jane Addams was of the opinion that children were of less cognitive ability, mental capacity, capability of judgment and emotional control than adults. A juvenile justice system, which rehabilitated and deterred juveniles from committing crimes, was started.

 

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The movement suffered a blow from 1973 to 2001, an era during which juveniles were subjected to stringent punishments, including executions. There was a movement pushing for the treatment of juveniles as adults, and in 1999, 11 year old Nathaniel Abraham from Michigan was charged with murder and executed (Flexon et al., 2009). The measures put in place to ensure that juvenile offenders were treated as adults included statutory exclusions, direct filing by the prosecutor, presumed waiver by the juvenile, and mandatory waiver under state laws. This movement focused entirely on the gravity of the crime and totally disregarded age as a mitigating factor.

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Opinions in Favor of Juvenile Death Penalty

Supporters of the juvenile death penalty call for punitive measures against juveniles who commit offences. The majority of citizens in the United States favor the death penalty as the best form of punishment for anybody who is guilty of committing a murder (Aronson, 2007). The support for executing juveniles is lower than that of adults, but it is still considerable. According to them, the main purpose of a justice system is to protect the safety of the public above any other interest (Vito & Kiel, 2006). A Gall-Up survey reported that the juvenile death penalty is likely to be supported by upper-class white males, while females, black people, low-income people, and minorities in general are likely to oppose it (Kubiak & Allen, 2008). Philosophies on the death-penalty are categorized into offender based and offence based. Proponents of the death penalty are in the offence based camp, which propagates the view that punishment should be based on the severity of the offence committed. Opponents of the juvenile death penalty, on the other hand, are in the offender-based camp.

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On April 20, 1999, two teenagers planted bombs and shot their colleagues to death in the infamous Columbine massacre that claimed fifteen lives. These incidents heightened the public outrage by creating the impression that a juvenile crime was not properly controlled (Fabian, 2010). In a Gall-Up poll, those interviewed did not distinguish juveniles from adults when the case involves punishment for a violent crime. Proponents of the death penalty for juveniles acknowledge the fact that the basic foundations of criminal law recognize that children carry diminished responsibility for their acts (Johnson & Tabriz, 2011). However, in case of violent crimes such as murder and sexual offences, many are reluctant to embrace the doctrine of diminished responsibility. They emphasize the fact that “justice demands that heinous crimes regardless of the age of the accused be dealt with to the full extent as the law provides” (Aronson, 2007).

The dissenting judges in ROPER V. SIMMONS, which outlawed the death penalty for juvenile offenders, opined that, while executing juvenile offenders was cruel, exceptions should be made whereby the juvenile in question had committed a heinous atrocity. Juvenile offenders could not be compared to mentally retarded people, because mentally retarded people lacked moral and cognitive capabilities, whereas juveniles were able to differentiate between right and wrong. The dissenting judges held that the discretion on whether to send a juvenile offender to death row should rest with the jury or the presiding judge (Benekos & Merlo, 2005). The murder of another human being is profoundly wrong regardless of the age of the offender.

In the case under consideration, 17 year old Christopher Simmons had contemplated murdering someone for a long time. He had discussed together with his friends a plan to break into somebody’s house, tie the victim, and push her or him down a bridge. He convinced his friends that nothing could be done to them because they were juveniles. Following this, he burgled the home of Shirley Crook together with his friend. They blindfolded her and bound her with a tape. They then took her to a railway yard, tied her limbs with electrical wire, filled her whole face with duct tape, then threw her into a river whereby she drowned. Simon later bragged about the murder to his friends. He confessed and was convicted for the crime in Missouri.

Those in support of the death penalty accorded to juveniles argue that the leniency of the juvenile system ingrains a perception that juvenile offenders will not be held responsible for the crimes they commit. The system has a lot of faults; the fact that proceedings are held in camera means that judges do not have access to criminal records of juveniles since they are protected from stigmatization. This creates a loophole as people who have already served sentences in juvenile institutes or probation are deemed to be first offenders when they are presented before criminal courts, which may lead to their release, causing a lot of trauma for the victim’s family (Aronson, 2007).

Those who support the death penalty insist that the juvenile system has failed to realize its rehabilitative objective. In the wake of the Columbine attacks, it came to public attention that the offenders Dylan Keloid and Eric Harris had been previously charged with breaking into a van (Benekos & Merlo, 2005). They had been put in a juvenile diversion program. If they could successfully complete the program, the event would be purged away from their records. Within eleven months, they were able to convince everyone that they were apologetic by speaking to counselors, attending workshops, and participating in volunteer programs. Meanwhile, the whole time they were making plans for a large scale brutal attack in their school that resulted in a massacre (Flexon et al., 2009). If their criminal records had been kept, they would have been deterred from committing another crime, especially within such a short span. Moreover if they had been sentenced to death, they would not have been in a position to mastermind the Columbine massacre.

Those who root the death penalty further argue that the extent of violence demonstrated by juveniles in the United States is higher than in other developing and developed countries. The measures taken by other states to outlaw the juvenile death penalty cannot be compared to or applied in the United States because the scenario is more drastic. Whereas the rate of homicides committed by adults was declining, the rate of homicides committed by juveniles was escalating at an alarming rate in the 1990s, creating the need for more stringent measures, including the death penalty, to be put in place (Bradley, 2006). To the public, the juveniles seem to lack conscience as they are portrayed in reports by the media about the heinous offences that they commit.

The juvenile death penalty is a cheaper and quicker alternative as opposed to rehabilitation efforts, which are lengthy and costly to the taxpayer. Rehabilitation may fail, and the juvenile may commit the same offence again; therefore, an exercise is in vain. Retributive results from the juvenile death penalty are immediately visible to the public, because the offender in question is completely incapacitated from committing another offence. The results achieved from rehabilitation take time to become apparent to the public, and they are based on a trial and error approach since it is not guaranteed that rehabilitation will result in reform of the offender (Fabian, 2010).

Some extremists even argue that young criminals should be treated more severely than adults to deter them from the future illegal activity. The approach used in states where the juvenile death penalty is legal is based on the declaration of juvenile offenders as “legal adults” and placing them outside the jurisdiction of the juvenile court. The criminal nature of delinquency allows state authorities to declare that some offenders are beyond control and cannot be treated as children (Johnson & Tabriz, 2011). The recognition is the basis of the waiver policy, which involves transferring legal jurisdiction of the most serious and experienced juvenile offenders to the adult court for criminal prosecution (Fabian, 2010)

An ABC poll indicated that 55% of citizens believed that crime and not the age of the perpetrator should be the main determinant of the sentence accorded (Benekos & Merlo, 2005). The policy of waiver embraces the concept that serious juvenile offenders should face the same repercussions as adults. The rehabilitation dimension is, thus, done away with. It is reserved for those who commit the most heinous crimes such as murder or rape.

Various transfer methods are used to transfer juveniles to adult jurisdiction. Judicial waiver gives the judge jurisdiction to determine whether the minor should be transferred. Under discretionary waiver, the judge is personally allowed to make the waiver after evaluating the various aspects pertaining to the case. Under mandatory waiver, a statute sets out that certain crimes must be transferred; while under presumptive waiver, the burden of proof that he or she is amenable to treatment in the juvenile rather than the adult court is placed on the juvenile (Arison, 2007).

The Supreme court listed the grounds for transferring juveniles in KENT V. UNITED STATES. They are: the risk that the offender posed to the community; the severity of the offence committed; whether the offence was premeditated or violent; whether the offense was committed to persons or property with greater weight being given to persons; sophistication of the maturity and character of the juvenile; the juvenile’s criminal history; and the likelihood that the juvenile can be rehabilitated (Fabian, 2010).
The other form of transfer is a direct file, whereby the prosecutor is the one with discretion to charge a minor who commits certain offences in an adult court. Statutory exclusion, on the other hand, involves complete removal of certain offences from the jurisdiction of the juvenile court. It is reserved for serious felonies committed by older juveniles or juveniles who have prior adjudications for felonies in juvenile court (Benekos & Merlo, 2005)


The people in the camp advocating for the juvenile death penalty base their claims on the premise that children today develop capabilities and become sophisticated at a young age and are, therefore, in a capacity to understand the consequences of their crimes. They argue that due to various deficiencies, the juvenile system should be done away with and children should be granted due process rights and go through a full trial just like adults because a crime is a crime, no matter who committed it; and a criminal is a criminal regardless of his or her age. Releasing Jon Venables and Robert Tompson, murderers of the two year old James Bulger, on parole even before eight years had expired was outrageous and did nothing to deter the two delinquents (Johnson & Tabriz, 2011). If they had been subjected to an adult system, they would have appreciated the consequences of their actions.

Grounds for Opposition of the Juvenile Death Penalty

Those who oppose the death penalty for juveniles are collectively known as progressives. In ROPER V. SIMMON case above, Simmons’s advocate argued that, since Simmons was not yet an adult and could not watch pornographic movies, vote, serve on a jury or drink, he could not also be sentenced to death like an adult. The lawyer then petitioned for reversal of the death sentence conviction that had been meted out against his client (Kubiak & Allen, 2008). The majority of the Supreme Court declared that the death penalty was unconstitutional based on the following grounds. They considered the fact that in the 12 states that completely prohibited the death penalty and the 30 states that prohibited the juvenile death penalty, only 3 states had executed a juvenile offender in the past ten years. The court interpreted this to mean that there was very little federal support and enthusiasm for the death penalty.

The court further stated that it is generally agreed that capital punishment should be limited to those offenders who commit the most heinous crimes and who have extreme culpability to the extent that no other punishment can be meted out on them. The majority of the bench went ahead to note that a scientific research had concluded that the sense of responsibility of adolescents is diminished and they cannot be said to be culpable for the offences they commit. They noted that it would be a great injustice to equate the offences committed by an adult with those committed by a minor since it is very likely that an adult cannot reform, but a minor can always reform (Bradley, 2006). The court relied on the statement by The American Psychiatric Associations prohibiting declaration of juveniles as sociopaths and psychopaths. The association issued this declaration because it is impossible for psychiatrists to distinguish between teenagers whose behavior was irreparable and those whose conduct was out of immaturity. Jurors could not be expected to make a decision that psychiatrics could not make, and it would be unfair to execute such a minor (Fabian, 2010).

Brain imaging evidence produced by the defense in the Simmon’s trial clearly indicated that the parts of the brain that make decisions and control impulses are not fully developed in adolescents as they are in adults; therefore, adolescents cannot have full a culpability for the crimes that they commit. Execution of juveniles, thus, amounted to a breach of eight amendment rights. It emerged that adolescents lack the emotional, biological, and intellectual culpability for violence. It is, therefore, unfair to make them pay for consequences of actions that they do not have the impulses to control (Vito & Keil, 2004)

A review of high school shootings indicated that the reasons for the attacks were not cultural, neither were they caused by exposure to violent media (Bradley, 2006). Scientists offered the biological stage of advancement of the adolescent brain as the main reason. The Simmons case was the first case in which neuro-scientific evidence was produced in court. The scope of admissibility of such evidence is still very limited (Aronson, 2007). The brain evidence used in the court provided a strong ground for stopping transferring juveniles from juvenile courts to adult courts. Adolescents are also more likely to succumb to stress or peer pressure in the face of decision making than adults. Frequent hormonal changes and short-term decisions undermine their ability to make sound decisions. The immaturity gap experienced by adolescents has been described as a difference in hot cognition (making hasty decision under hormonal and external influence) and cold cognition (making rational decisions in a relaxed environment). The hot cognition phase of decision making tends to last longer in adolescents.

The court then focused its attention on international law and international jurisdictions. It considered that, since 1990, only Pakistan, Nigeria, Saudi Arabia, Iran, China, Yemen, and the Democratic Republic of Congo had executed juveniles (Bradley, 2006). At the time when the court was considering the Simmons case, the above mentioned countries had also outlawed the death penalty. It was, therefore, tragic that the United States was the only country permitting the death penalty. The justices ruled that the standards for the death penalty had been in a constant state of evolution all over the world, and the United States should, thus, follow suit (Vito & Keil, 2004). These findings are the basic foundations for the grounds on which the death penalty is opposed.

In ATKINS V. VIRGINIA, a case involving persons with mental retardation, the Supreme Court ruled that executing mentally retarded persons amounted to the breach of the Eighth Amendment Rights against unusual and cruel punishment. In arriving at the decision, the court considered that while mentally retarded persons could distinguish from right and wrong, their culpability was significantly reduced by the mental illness. This provision can also be applied to children who may be in a position to distinguish between right and wrong but cannot fully appreciate the consequences of their actions (Vito & Keil, 2004).

Opponents of treating child offenders as adults irrespective of the crime committed base their argument on the progressive theory which proposes that children lack the mental state of mind to possess criminal intent and lack the capacity to stand trial as accused persons. They are not capable of understanding the consequences of their actions. Children can intentionally steal cars and know very well that the act is illegal, but they may be incapable of fully understanding the consequences of the behavior and the harm it may cause (Flexon et al., 2009). Recent studies have suggested that the brain’s prefrontal lobe, which scientists think plays a crucial role in preventing undesirable behavior, may not reach full development until the age of 20 years (Bradley, 2006)
Juveniles cannot be fully blamed for the offences that they commit (Flexon et al., 2009). Proliferation of gangs, accessibility of guns, parental abuse, and neglect are the main factors that push children to crime. Adults who avail weapons to children are the ones who should be held accountable. They further argue that since juveniles are deemed not to have the capacity to have sex, vote or even drive, they should equally be deemed not to have the capacity to commit crimes and they should be treated differently from adults (Fabian, 2010).

Juvenile delinquency stems from family problems, rejection, and socialization issues. Therefore, rather than to be condemned by prosecution as adults, such juveniles require treatment and rehabilitation services to mould them into better adults with the possibility of enjoying a successful and fruitful future without criminal labels. The death penalty does not serve its deterrent purpose when it comes to juveniles. Juveniles are influenced by the popular culture and media and may come to perceive themselves as immortal after watching certain movies where the star never dies (Flexon et al., 2009). Their view of death is distorted, and the threat that they may be killed for killing someone cannot deter them from committing a crime if they intend to do so (Fabian, 2007). Opponents also emphasize on the need for the United States to conform to international human rights standards that abhor subjecting minors, or any other human being, to the death penalty.

Scientific research has established that cognitive, linguistic, social, emotional, and moral capabilities develop rapidly from the moment a child is born to the moment they attain the age of five years (Arinson, 2007). The stage is the foundation of behavior that an individual displays during adolescence. Factors such as exposure to drugs, acute stress, neglect, abuse, isolation, and poor nutrition habits interfere negatively in this stage, causing the child suffering from grief and depression. Loss of a parent, divorce, rejection or any other form of trauma that a child may experience also fall into this category (Benekos & Merlo, 2005). The negative experiences of childhood may lead to the rebellious, criminal, and offensive behavior during adolescence. When a juvenile with such a background commits an offence, taking rehabilitative measures rather than punitive measures such as the death penalty is more recommendable.

A study conducted among juvenile offenders revealed that they suffered from attention deficits, hyperactivity, learning disabilities, and impulsivity. The parts of the brain that coordinate impulses, cognitive ability and judgment are highly impaired when compared with other juveniles in the same age group (Fabian, 2010). The doctrine of proportionality holds that justice is achievable in criminal proceedings only when the punishment issued is proportional to the magnitude of the crime committed.

Those against the death penalty argue that such a measure would nullify any attempts of rehabilitation and would lead to stigmatization of the particular minor. Teenagers are particularly vulnerable because adolescence is characterized by emotional and cognitive immaturity, intense peer pressure, and heightened attitudes towards risk (Vito & Keil, 2004). The evolving standards of decency established in Atkins require that the death penalty should be abolished. The use of death penalty even for adults is on a steady decline worldwide. Prosecutors in various states are reluctant to demand a death penalty; the jury and juries are also increasingly wary of sentencing an offender to death. The enthusiasm for the death penalty has declined tremendously in the wake of the radical human rights activism. Politicians that support the juvenile death penalty in states that execute juveniles do not do so as a matter of personal opinion. They declare support for the death penalty in order to get support from the public, because they require votes to get public positions. This does not offer any justification for the continued practice of executing juveniles.

International law, multi-lateral and bi-lateral treaties prohibit the juvenile death penalty. The American Convention on Human Rights, the United Nations Convention on The Rights of the Child, and The International Covenant on Civil and Political Rights all prohibit the death penalty. When the United States was signing and ratifying the International Covenant on Civil and Political Rights, it included a reservation clause indicating that it would not ban execution of juveniles (Johnson & Tabriz, 2011). It is the only country in the world that expressed such a reservation. The UN Human Rights Committee, which is charged with the obligation of monitoring human rights, requested the United States to withdraw the reservation, but the United States rejected the offer. The reservation and refusal to withdraw it has been viewed by the rest of the UN member states as contempt and gross violation of human rights. The United States and Somalia remain the only countries in the world which have not ratified the Convention on the Rights of the child, which expressly provides that the death penalty or life imprisonment without parole should not be imposed on any person who is below the age of maturity, which the convention sets at 18 years (Benekos & Merlo, 2005).

The United States signed the convention in 1995, having inserted a reservation that allowed it to continue meting out the death penalty on juveniles. Article 68 of the Geneva Convention provides that a civilian who is below the age of 18 cannot be sentenced to the death penalty. The United States, therefore, pledges itself to not execute foreign civilian juveniles in times of war, yet it executes its own juveniles, which is highly ironical. That in itself is the reason enough for the juvenile death penalty to be abolished.

It is inhumane to subject juveniles or anyone else to the death penalty. A life imprisonment sentence without parole serves as a viable alternative sentence measure. In many countries, the life imprisonment sentence is not meted out on juveniles who are mostly committed to custodial institutions; in the United States, over 2,225 juveniles aged between 16 and 18 have been sentenced to life. It is to be noted that most countries prohibit both the death penalty and life imprisonment without parole for juveniles on human rights grounds (Johnson & Tabriz, 2011). Currently, those juveniles sentenced to life imprisonment without parole are treated as adults and housed in adult prisons. This provision should be reversed so that juveniles are remanded separately from adults.

Rationale for my Opposition of the Death Penalty for Juveniles

Execution of juveniles is regrettable and has negative implications on morality in the society. Such a method of punishment is not in conformity with international law and implies a total disregard for the internal conflicts that adolescents face as they transit into adulthood (Flexon et al., 2009). The society is responsible for the intellectual, moral, and emotional development of the children until the time they are mature enough to carry out the duties and responsibilities of an adult. Juveniles must be held responsible for committing violent crimes, but their behavior must be judged on the basis of the background of the society that they have grown up in. Especially if to take into consideration the studies that imply that capital crime juvenile offenders are victims of childhood abuse and suffer from chronic psychological disturbances.

The main justification for the death penalty is retribution. Execution of juveniles does not achieve this purpose because minors are not culpable enough to be held responsible for their actions. Studies have shown that the death penalty does not deter juveniles from committing crimes since they have nothing to lose from being killed upon killing a person. Execution of a juvenile is also costly since it costs almost $ 2.5 million for prosecution, maintenance on death row, and execution of a single person. Furthermore, execution of juveniles violates the constitution as was ruled in ROPER V. SIMMONS and it also violates provisions of the international law. Outlawing the death penalty for juveniles would re-establish the rehabilitative purpose of the juvenile justice system, as founded by Jane Addams. Under no circumstances a juvenile should be transferred to the adult criminal system through such provisions as waivers, transfers, and direct prosecutor files. Juveniles should always be charged in a juvenile court having taken into consideration their cognitive and emotional development levels (Bradley, 2006).

Juveniles who are prosecuted and sentenced as adults tend to have a higher rate of recidivism (repeated convictions arising from the same offence) than their counterparts who are confined in juvenile institutions; and they are likely to commit more violent and atrocious crimes due to the interaction and incarceration with adults. Conditions in adult prisons are poor and subject juveniles to abuse and assault by adult prisoners, as has been reported by the Human Rights Watch.

Alternative measures of sentencing need to be adopted. The Texas Offender Program, for instance, takes capital offenders through an intensive sixteen week program where role-playing is used to give the offenders a glimpse into the feelings of victims upon commission of a crime (Johnson & Tabriz, 2011). The program aims at addressing the offender’s emotional detachment with the victim and inability to be culpable and take responsibility for the victim. The offenders re-enact the offence committed first as the victim then as the perpetrator. The program has been found to be quite effective in reforming and rehabilitating offenders.

Conclusion

The nation should embrace a policy that focuses on prevention of commission of crimes by juveniles and early intervention in case of any violent crime committed by a juvenile offender. Such measures would include identifying children at risk of trauma, child abuse and neglect at an early stage. The children should then be counseled, tutored, and assigned adult mentors. Children under care of welfare services such as children in foster homes, custodial institutions, and children care facilities need to be monitored since they are often bitter about the world and tend to resort to violent crime as an expression of the inner anger.

Transferring juveniles from juvenile courts creates confusion since some juveniles are handled in juvenile court, while others are handled in adult court. Risk measures should be minimized and protective measures increased throughout a child’s development cycle from birth to adolescence. Other programs include youth mentoring and pre-natal and Early Childhood Nurse Home Visitation. If a minor is engaging in delinquent behavior, intervention measures should be implemented to ensure that the behavior does not degenerate into full-blown violent crime.

Article 37 of The United Nations Convention on the Rights of the Child stipulates that no child shall be subjected to torture, cruel, degrading or inhuman treatment. It also restricts imposition of capital punishment or life imprisonment without the possibility of release for a person who is aged below 18 years. It is not to be forgotten that international law also prohibits the death penalty for adults and most people in the world oppose the death penalty for anyone. In light of these facts, the death penalty for juveniles must be abolished completely.

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