Discrimination With Regard to the Death Penalty

¶ … 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 Italian constitution guaranteed the right to life "as an inviolable human right," and did not believe that this right would be honored in the United States justice system (Brillante 2004, 1305). A more dire example of the crippling effect that the United States.'s refusal to ratify certain death penalty-related treaties is in the obstacles to international investigation that may be posed by nations who are reluctant to cooperate with a non-signatory. In the case of Zacarias Moussaoui, a French citizen, France and Germany have been notably reluctant to share information regarding the September 11 attacks in which Moussaoui played a significant role, due to prohibitions such as the one in the German Constitution which "forbids submission of any material that could lead to the death penalty" (ibid. 1300). Such roadblocks to international cooperation are a significant problem with the United States' death penalty policies.

The international pressure is certainly not the only reason that the Supreme Court, in its last session, overturned the judicial history which upheld the juvenile death penalty. The United States. has always prided itself -- sometimes foolishly -- on its independence from international government. However, this international consensus most definitely played a part in the Court's decision to strike down capital punishment for individuals under the age of eighteen at the time of their commission of their crimes. The opinion noted that although the international norms were not the sole basis for the decision, it had to be considered that "the United States now stands alone in a world that has turned its face against the juvenile death penalty," (540 U.S. 1160).

Aside from these international issues, the efficacy of the death penalty as applied to juveniles has been questioned by the medical community. As will be explored in the section that follows, one of the major rationales for the death penalty is its deterrent capability; in other words, if an individual knows that the punishment for a crime is likely to be enforced, he or she is less likely to commit the crime in the first place -- especially if that punishment is death. This deterrent quality of capital punishment is, in theory, intended and understood to prevent the commission of capital crimes.

Many medical experts have argued, however, that juveniles are not as subject to the effects of deterrence as a fully matured adult would be. In the same way that youths make poor decisions as described in the introduction, they lack the mental capacity to see the consequences of their actions with regard to heinous crimes. As a jumping-off point in examining the appropriateness of capital punishment, this essay will stipulate that "punishment should be directly related to the personal culpability of the criminal defendant," (Izutsu 2005, p. 1000). Atkins v. Virginia established this culpability to punishment relationship in assessing whether a mentally retarded individual can be executed for the commission of a capital crime (536 U.S. 304). In this case, the Court found that these individuals could not be expected to function at a level equal to other members of society with regard to knowledge of right and wrong or in assessing consequences to their actions; in applying the Eighth Amendment to cases involving individuals with reduced mental capacity, the Court has established that "the death penalty has little deterrent force against defendants who have reduced capacity for considered choice" (Skipper v. South Carolina, 1986, 476 U.S. 1)

This diminished capacity results in the death penalty's imposition having no retributive effect for those individuals unable to understand its cause as well as no deterrent effect for individuals unable to judge consequences or cause/effect relationships; while the Atkins decision related these criteria to individuals who suffer from mental retardation, one can apply these same emotional tendencies to juveniles. One study submitted as evidence against the policy found that "juveniles had less developed cognitive skills that did adults, were less likely to fear death and exhibited more signs of immaturity and irresponsibility," (cited in Stanford v. Kentucky at 377). Another noted the likelihood of the recognition of the consequences of a capital crime were "so remote as to be virtually nonexistent" in minors, much as Atkins determined that the lack of this capability in the mentally retarded to "control their conduct based upon the possibility of execution as a penalty" (Martin 2005, p. 718).

Another physiological factor in determining culpability and cognizance is what Martin describes as "the lack of uniformity in individual juveniles' maturity rates" (Martin 2005, p. 719). She cites Justice Powell in his dissent from Fare v. Michael:

Minors who become embroiled with the law range from the very young up to those on the brink of majority. Some of the older minors become fully street-wise, hardened criminals, deserving no greater consideration than that properly accorded all persons s suspected of crime. Other minors are more of a child than an adult. (1979, 442 U.S. 707, at 734)

Essentially, Powell is observing that setting an age of majority is a difficult task, for either a legal or a medical professional. Although the age of eighteen is not necessarily a flawless one for determining adult reasoning capabilities, it has been proven preferable to younger ages as a determinant of adulthood, at least in legal terms.

In sum, the death penalty as applied to minors has faced problems with regard to international acceptance, legal coherence when compared with other groups (i.e., mentally retarded individuals) with diminished mental capacities, and a lack of a definitive precedent (changing standards during the 1970s and 1980s). Opponents of the juvenile death penalty ban assert that a strong criminal justice system requires that a criminal act be punished in terms of its own merits, not the merits of the offender. However, the established international law as well as Supreme Court jurisprudence suggest that there are certain groups of individuals with diminished mental maturity and/or capacity, i.e. youth and the mentally retarded, for whom capital punishment serves no worthwhile purpose. In the following section, we will examine the theories behind this school of thought more thoroughly as well as an international human rights theory that asserts that the juvenile death penalty is inherently unjust.

GETTING REVENGE VS. GETTING RESPECT:

Balancing the need for proportionality with international standards

An essential facet of the criminal justice system is the concept that punishment is neither arbitrary nor excessive. To do otherwise would be to move away from the democratic ideals which are so treasured in our nation. The proportionality analysis for analyzing the policies of the criminal justice system examines the methods of assigning punishment to acts. The proportionality analysis has two prongs; the first determines harm and blame, essentially assessing the punishment that the crime warrants:

Along the culpability axis, the Court determines whether the criminal defendant is less culpable than, or as culpable as, a paradigmatic first-degree murderer. Age at the time of the crime, mental retardation, or lack of intent to kill could all indicate lower culpability, while 'reckless indifference to the value of human life,' for example, could indicate culpability equal to that of a first degree murderer. Along the harm axis, the Court examines whether the criminal defendant has committed a crime less serious than murder, such as rape or robbery. (Lee 2005, 690-91)

This idea of different levels of blame for different situations is what separates accidents such as vehicular manslaughter from intentional, planned murder. This prong of the proportionality analysis determines if the crime warrants consideration of the death penalty at all, regardless of the condition of the accused -- in this analysis, the harm and blame tests must be met before the second prong is employed.

Assuming that the harm and blame associated with the crime are assessed as deserving of capital punishment, the second prong of the probability test moves to examining retribution or deterrence, the primary purposes of the capital punishment option. Retribution may serve as an equalizer between victims and assailants, or, in the case where no victims are living, serves a stabilizing purpose in a society that desires justice. Lee notes that "the retribution prong of this inquiry is frequently redundant, given that the Court has not given us any reason to think that its assessment of relative harm and culpability of the class of criminals will differ in any way from its assessment of whether these people will get their 'just deserts' by being punished to death" (Lee 2005, p. 691).

Other examinations of these portions of the proportionality analysis assert that "some capital defendants may not be culpable enough to warrant the death penalty" and that "crimes that do not involve the taking of human life are per se ineligible for the death penalty because such a sentence would be excessive" (Izutsu 2005, p. 1000). If these situations are the case, the proportionality test fails to justify capital punishment. However, there is an occasional case in which all of these criteria -- harm, blame, and a need for retribution -- are met, the final prong of the proportionality analysis is utilized. It is this fourth step, of deterrence, that is most affected by the mental competence or cognitive abilities of the accused, and as such, it is this step is the most difficult to assess and is the most controversial.

The concept of deterrence is the most-often cited positive effect of capital punishment. Proponents of capital punishment claim that the knowledge that the death penalty is an option if punished for a crime, the urge to commit a capital offense will be negated by the instinct toward self-preservation and as such, will deter crimes which warrant such punishment. As Lee notes, "capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation," otherwise it is "nothing more than the purposeless and needless imposition of pain and suffering" (Lee 2005, p. 691). Izutsu also notes that this concept assumes that penological justification "such as retribution or deterrence" in order to prevent the "gratuitous infliction of suffering" (Izutsu 2005, p. 1000).

This theory, as a justification for the capital punishment, is a strong one. However, we are examining this theory as a justification for the execution of juveniles -- and in doing so, the fallibility of the proportionality theory becomes evident. One of the primary objections of opponents to the ban on capital punishment for minors is that eliminating the death penalty as an option for certain groups will lessen its deterrent capabilities. This argument has been employed by critics who cite the rare case in which a defendant successfully appeared to be mentally retarded or acted insane for purposes of an insanity defense, or otherwise disqualified himself from consideration for the death penalty.

The problem with this claim of reduced deterrence by eliminating capital punishment options for certain groups is fairly obvious; "exempting a group of criminals from the possibility of capital punishment will not reduced the deterrence value of capital punishment for other groups" (Lee 2005, p. 692). This argument is especially faulty with regard to deterrence among minors, since it is essentially impossible to "fake" one's own age, as opposed to insanity or mental retardation, which are difficult to pretend, but possible by a well-informed individual. Opponents who claim that the removal of the capital punishment option will encourage minors to commit capital offenses ignore the above evidence regarding the lack of such cognitive, mature thinking, reasoning, and premeditation skills possessed by minors.

Even in light of the proportionality analysis utilized by the opponents of a ban on the juvenile death penalty, the benefits of capital punishment are not sufficient to justify its implementation. Even if the crime fulfills the harm and blame prongs and is determined to deserve equal retribution, the deterrent prong of the analysis cannot be fulfilled when applying the theory to juveniles. A medically asserted diminished capacity for judging consequences as well as the increased feelings of invulnerability and immortality associated with youth negate any deterrent effect that capital punishment might have.

Having discounted the theory most often used by proponents of capital punishment for minors, we will shift to analyzing the theory most often utilized in favor of the prohibition codified by Roper. International law norms, including treaties to which the United States is a signatory, prohibit the use of capital punishment against minors. In terms of human rights, the United States is in the company of nations such as Pakistan, Nigeria, Saudi Arabia, the Democratic Republic of the Congo, Iran, and China as these nations are the only ones in which a report of juvenile capital punishment has been made since the early 1990s, and in each case only once (Brillante 2004). These nations either "adamantly denied any execution took place or that a minor was sentenced to death...[meaning that] only the United States has not accepted the norm against the execution of juvenile offenders" (ibid., p. 1291). While Brillante's article was published before the Roper ban on juvenile capital punishment in the United States., it highlights an important distinction with regard to international human rights norms. It is also valid to remember that in light of the Supreme Court's past vacillation in death penalty jurisprudence, the issue is far from settled.

International law is not seen as a binding precedent in our Supreme Court's jurisprudence; in fact, in the Roper case, one of the Supreme Court cases most reliant on international law thus far, the opinion made a point on various occasions to note that although there were international norms which were a factor in the decision, these international standards were not being seen as binding or as judicial precedent (540 U.S. 160). With that in mind, the United States has a long relationship with international law, starting years before the vital role played in the founding of the United Nations and in the Universal Declaration of Human Rights, issued as international standards in 1948.

As early as 1895, the Supreme Court acknowledged the influential role that international law played in United States jurisprudence, especially in the federal realm: "International law...is part of our law, and must be ascertained and administered by the courts of justice, as often as such questions are presented in litigation between man and man, duly submitted to their determination" (Hilton v. Guyot, 1895, 159 U.S. 113 at 163). From this determination through the Universal Declaration of Human Rights in the post-World War II era to the controversies surrounding potential United States ratifications of international human rights treaties during the late twentieth century, international law has played an important role in United States jurisprudence for over a century.

Despite the Supreme Court's repeated claims that international law cannot bind the decisions issued by the United States' highest interpreters of the law, the fact remains that international law is a highly influential tool in affecting policy and its interpretation. Rules of war, prohibitions against genocide, explicit discrimination based on gender, race, or ethnicity, and "crimes against nature" are all applicable -- and obeyed -- in the United States. Consequences of not complying with international laws include those outlined in the above section, from noncooperation in international relations matters to international scorn and disdain.

Despite the late ratification of the ICCPR and the lack of ratification of the Convention on the Rights of the Child by the United States, there does exist customary international law know as "jus cogens." It is defined as "a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character" (Vienna Convention, supra note 33, at art. 53). Jus cogens laws are not simple international norms, but are distinguished from such because they are "based on natural law propositions applicable to all legal systems, all persons, or the system of international law.." (Cited in Brillante 2004, p. 1296) As such, they are not detrimentally effected by judicial spats over paternity, or employment discrimination, or tax law, but instead, jus cogens laws concern themselves with the most noble of the international laws, the natural laws that apply to all humans and are best regulated by and examined in the international sphere.

Article 53 of the Vienna Convention sets out four criteria for identifying peremptory norms, which are considered to be law in themselves whether or not a nation has specifically acknowledged them as such (jus cogens norms): that the norm is (1) one of general international law; (2) accepted by the international community as a whole; (3) immune from derogation; and (4) modifiable only by a new norm having the same status. (Vienna Convention article 53 note 264). How do these four criteria match up to the current international standard of prohibiting minor executions? Let's examine the United States' prohibition on the juvenile death penalty in the framework for a jus cogens norm.

The first step is to establish the law as a general norm in international law; the juvenile death penalty has met the four criteria as follows: the original issue, the prohibition on juveniles tried and punished as adults, has become a norm of general international law; treaty law, decisions by the IACHR and the United Nations General Assembly. Resolutions passed and ratified assert that there may be no derogation from this treaty; it is binding. The second step, of gaining acceptance from the international community as a whole,.has also been accomplished. Only eight countries have gone through with a juvenile execution in the past fourteen years. As mentioned earlier, the states that have a claim of juvenile execution in their state vehemently deny it -- aside from the United States. This refusal to admit complicity or participation in juvenile executions supports the second step of creating a jus cogens norm by proving that prohibiting juvenile executions are accepted by the international community as a whole.