Newletter Masthead
September 2001 · Vol. 26, No. 3, pp. 9-10

Juveniles and the death penalty

Diane H. Schetky MD

Child and Adolescent Committee
The U.S. Supreme court in Thompson v. Oklahoma (1988) decided that the Eighth Amendment prohibited the execution of persons younger than 16 at the time of their crimes. However, in the U.S. we continue to execute 16 and 17 year olds. Of the thirty eight death penalty states, twenty four permit the death penalty for individuals who committed crimes prior to the age of 18. The minimum age at the time of the crime is 16 in 12 states, 17 in 4, and many states do not specify an age. Fourteen states and the Federal system hold a minimum age at time of crime of 18 .

Currently, there are about 70 death row inmates who were sentenced as juveniles and 37 % of them are in Texas. Seventeen have been executed for crimes committed as juveniles since the reinstatement of the death penalty in 1976 and three of these executions occurred earlier this year. Only four other nations, Iran, Nigeria, Pakistan, Saudi Arabia and Yemen have executed juveniles in the past decade and there is almost global consensus on the need to eliminate the death penalty for crimes committed as juveniles. The U.S. has been the only country to refuse to sign the UN Convention of the Right of the Child, an international treaty which bars the execution of persons committing crimes before age 18.

Opposition to the death penalty, especially for use with juveniles, is mounting. The death penalty is unlikely to have any deterrent value on juveniles as many young juvenile offenders are impulse ridden, highly stimulus reactive and have difficulty planning ahead. Adolescents tend to live in the present, view themselves as invincible and many are easily swayed by peers in their antisocial behavior with little heed to consequences. Some do not value their lives and may even be suicidal. It is precisely because of their emotional and cognitive immaturity and difficulty with decision making that they are not afforded full adult status under the law. Hence, they are not considered old enough to vote, serve as jurors, sign a contract, purchase alcohol, serve in the military or, in some states, marry.

Many youths within the juvenile justice system have treatable but undiagnosed psychiatric disorders. The rates of affective disorders, Post Traumatic Stress Disorder, Attention Deficit Disorder and Learning Disabilities are consistently high in this population. In addition, some have neurological impairment as a result of exposure to drugs or alcohol in utero, early childhood physical abuse or their risk-taking life styles. Because of poverty and minority status, many of these youths have been disproportionately diverted into the juvenile justice system rather than to mental hospitals.

Legal representation is likely to be inadequate for youths facing the death penalty. The ABA notes that jurisdictions that have the death penalty have been unwilling to provide adequate legal services to these defendants who end up with unqualified or indifferent attorneys. Often these cases are assigned to the lowest bidders who invest little time in these cases and are unlikely to request a forensic evaluation or consider issues unique to adolescent development which might have bearing on issues of culpability. Even well intended attorneys may have difficulty getting the courts to authorize payment for forensic evaluations and investigations. In addition, prosecutors may lack adequate training in avoiding constitutional violations. As noted by the ABA, this situation literally spells death to the defendant.

Yet another argument against the death penalty is the well publicized risk of error, reported to be as high as 68% (Coyle), which has resulted in a moratorium on the death penalty in the state of Illinois.

Numerous organizations have come out with position statements opposing the use of the death penalty for crimes committed as juveniles including the American Academy of Child and Adolescent Psychiatry, the American Bar Association, the National Mental Health Association and most recently the APA. In addition, the ABA has called for a moratorium on capital punishment until each jurisdiction implements policies and procedures consistent with longstanding ABA policies intended to "1) ensure that death penalty cases are administered fairly and impartially in accordance with due process and 2) minimize the risk that innocent persons may be executed." Opposition is also coming from an unlikely source - some of the families and loved ones of victims have spoken up because they believe that the death penalty only serves to perpetuate the cycle of violence and failed compassion and they realize it will not take away their loss and grief.

The philosophy of the juvenile court has always been rehabilitation, yet, this is being eroded in an atmosphere of getting tough on juvenile crime and the increasing practice of waiving juveniles to the adult court. It is hard to justify this trend in an era where serious juvenile crime continues to decline and the goal of rehabilitation is closer than ever before with new and effective innovative treatments and community interventions available to populations at risk. We know that juveniles who are transferred to the adult correctional system have a very high risk of being victimized, are less likely to have their educational needs met and, if released, recidivate more rapidly than those who remain in the juvenile justice system. Our country continues to pour money into new and more prisons and executions rather than into efforts at preventing juvenile crime, providing psychiatric services for at-risk youths, and strengthening the juvenile justice system so that it can effectively respond to dangerous and/or repeat offenders to ensure public safety. AAPL members are urged to consider a position paper in support of banning the death penalty for crimes committed prior to age 18.

References

ABA: House of Delegates Moratorium on Capital Punishment, 1997.

Coyle M: 68% Error rate found in death case study. National Law Journal 6/19/00

Schetky D: Juveniles and the Death Penalty. AACAP News, July/Aug 2000