Discrimination With Regard to the Death Penalty Term Paper

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adults have an episode or two from their youth of which they are not extremely proud. Perhaps it involved sneaking a beer (or several beers) at a social function, or lying about one's plans for the evening to get permission to attend a questionable event. Most kids have learned the hard way on at least a few experiences -- speeding, missing curfew, or cheating on a test. Younger children are taught that taking a pack of gum from the store without paying for it is wrong, and that there are certain words on television that they shouldn't repeat in school. We accept these facts of life fairly easily; minors aren't mentally or socially equipped to know how they should behave all of the time. Children have to be taught about social mores, and teenagers test authority without considering the consequences in a way that most adults would. Lawbreaking -- whether it is noisy parties, underage drinking, or any one of a hundred other risky behaviors -- is usually attributed, in youth, to "growing up." A few minor brushes with the law, teachers, or parents are seen as a part of learning and maturing.

Now imagine that an attempted robbery went wrong, and that the victim was also kidnapped and brutally drowned as a result. Shirley Cook had her hands tied behind her back by her assailant, who then flung her off of a bridge and watched her drown. She knew her assailant; he was her neighbor. He was also seventeen years old at the time of the crime. (Roper v. Simmons 2005, 540 U.S. 1160).

Does the leniency our society tends to grant in the former situations with regard to youth also apply to such heinous crimes as that of Christopher Simmons, the convicted teen in the second paragraph? Are teenagers who commit murder, rape, and other "adult" crimes more accountable for their actions than their counterparts who are sneaking cigarettes and beer? Many in the criminal justice system argue that an "adult" crime deserves an "adult" punishment, and that if minors commit what would otherwise be a capital offense deserving of the death penalty, they deserve no special treatment or bias with regard to their sentencing based solely on their age.

ABSTRACT

This paper will examine the death penalty as applied to juveniles (defined by law, in this case, as individuals under the age of 18). This policy, per the above-cited Supreme Court case, has been declared unconstitutional according to the Eighth Amendment prohibition of cruel and unusual punishment and is consequently illegal today. Opponents of the decision believe that the policy is lax on criminal behavior by minors and that a punishment which is punishable by death when committed at age eighteen should also be punishable by death at age seventeen. Those in favor of the decision, who tend to favor the abolition of the death penalty itself, say that prohibiting the execution of minors helps legitimize the United States justice system in the international community, as well as strengthens cooperation and opinion of the United States in general in this realm. These advocates of banning juvenile executions cite medical evidence as well as societal norms that separate youths from adults in many ways. The tension between these two schools of thought is high, and although Roper has set Supreme Court precedent for the time being, the history of the death penalty and its application in the United States. is erratic and unpredictable. Although the issue is "settled" by precedent for the time being, it is still a very current and germane topic to the criminal justice system and should be examined in more thorough detail.

The application and validity of the juvenile death penalty will be examined here, and the conclusion that the prohibition of juvenile executions is not only constitutional, but pragmatic and effective in influencing international interactions will be demonstrated. First, both sides of the argument will be presented, including each sides' evidence -- both empirical and subjective -- and a brief, general overview of the death penalty as applied in the United States. This overview will include a timeline of international consensus with regard to the death penalty and its application, especially to as applied minors. After exploring the issue and its history, a few points will be made as to why this topic is important to the current criminal justice system and the nation as a whole. Next, an explanation of the competing theories behind the policies of Roper regarding the unconstitutionality of the juvenile death penalty will be introduced -- opponents of the decision cite the retribution and deterrent theory of punishment and criminal justice, while advocates of the decision rely heavily on international law, concepts of punishment being related to culpability and the jus cogens theory.

The impacts of this decision on the criminal justice system as a whole will be examined; specifically the detrimental influence that executing minors had on international opinion of the United States, and, in turn, on international cooperation with regard to criminal justice matters. Limitations of examining the issue solely from a criminal justice or any single disciplinary theory will be demonstrated via the interdisciplinary approach required to fully examine the issue (encompassing the legal and criminal justice system, international relations, medical science and psychology, among other fields), but an attempt will be made to examine this policy in light of all available information. Finally, the rectitude of prohibiting juvenile capital punishment will be asserted.

THE ARGUMENT:

What is Cruel and Unusual, and who decides?

Furman v. Georgia (408 U.S. 238) did not mark the beginning of the debate about capital punishment, but it was definitely a landmark. The case, decided in 1972, made the death penalty -- for anyone -- unconstitutional, and was highly controversial; the Supreme Court found that allowing juries complete discretion with regard to the death penalty was suspect in terms of the Eighth Amendment's "cruel and unusual punishment" prohibition and declared the then-current statutes unconstitutional (408 U.S. 238). Soon states began reshaping their death penalty statutes to protect against the perceived arbitrary nature of juries, which was the primary claim of unconstitutionalism in Furman, and these re-vamped statutes were approved only a few years after the original prohibition (Gregg v. Georgia, 1976, U.S. 153).

Through the 1980s and 1990s, several states adopted capital punishment statutes, and the federal government imposed one as well, for federal crimes such as murdering a federal officer (although the federal death penalty was imposed significantly less than the states'). With the re-imposition of the death penalty came questions about who it could be applied to. In 1988, an Oklahoma case determined that capital punishment for youths fifteen and younger was cruel and unusual based on the Eighth Amendment (Thompson v. Oklahoma, 487 U.S. 815). However, a 1989 case established the constitutionality of execution for sixteen and seventeen-year-olds (Stanford v. Kentucky and Wilkins v. Missouri, 492 U.S. 361). These cases appeared to effectively establish a minimum age limit for capital punishment at sixteen, permitting it when imposed after that age.

However, in 1992, the Covenant on Civil and Political Rights was ratified by the United States -- over thirty years after it was ratified by the United Nations (Brillante 2004). This particular inttreaty, which the United States ratified only with numerous reservations, exceptions, and "understandings," prohibits the imposition of the death penalty on minors, understood as those individuals under age eighteen (ibid. 1273). The ratification made the United States subject to this provision in the international community, much as other international laws provide for multi-state laws such as those regarding treatment of prisoners of war in foreign countries, financial regulations between citizens and corporations in different nations, and war crimes.

In adopting the Covenant (ICCPR), the United States did so with the stipulated reservation that it maintained the right to execute minors (Brillante 2004). In doing so, it became the only nation in the world to have such a stipulation; as of 2004, it remained in the company of only Somalia in refusing to ratify the Convention on the Rights of the Child, which expressly prohibits juvenile execution (Malone 2004). In light of these continued international refusals to prohibit capital punishment for individuals under the age of eighteen, the United States not only incurred international criticism but also harmed the criminal justice system by discouraging cooperation from countries who did prohibit capital punishment, especially for minors. Although it is beyond the scope of this paper to examine the death penalty controversy as a whole in the international community, many nations have refused to extradite individuals accused of crimes in the United States due to their own sovereign prohibitions on the death penalty; intelligence-sharing between nations and the cooperation of international witnesses are detrimentally affected by other nations' unwillingness to cooperate, at least in terms of criminal justice, with a nation which permits capital punishment, especially for minors.

For example, Italy refused to extradite Pietro Venezia, a suspect in a United States criminal case, because the…[continue]

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