Amicus Curiae Brief — Stanford v. Kentucky

Octroser Term, 1988 CLERK

No. 87-5666/87-6026 Supreme Court, US. ‘|

JOSE MARTINEZ HIGH,

Petitioner.

Vv.

WALTER ZANT, WARDEN,

Respondent.

HEATH A. WILKINS,

Petitioner,

Vv.

STATE OF MISSOURI,

Respondent.

On Writs of Certiorari to the United States Court of Appeals

for the Elewenth Circuit and the Supreme Court of the State of Missouri

BRIEF OF THE CHILD WELFARE LEAGUE OF AMERICA,

NATIONAL PARENTS AND TEACHERS ASSOCIATION,

NATIONAL COUNCIL ON CRIME AND DELINQUENCY,

CHILDREN’S DEFENSE FUND, NATIONAL ASSOCIATION

OF SOCIAL WORKERS, NATIONAL BLACK CHILD

DEVELOPMENT INSTITUTE, NATIONAL NETWORK OF

RUNAWAY AND YOUTH SERVICES, NATIONAL YOUTH

ADVOCATE PROGRAM, AND AMERICAN YOUTH WORK

CENTER AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Ranpy Herrz*

MarTIN GUGGENHEIM

Attorneys for Amici Curiae

New York University School of Law

715 Broadway — 4th Floor

New York, New York 10003

(212) 998-6430

* Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTERESTS OF AMICI

SUMMARY OF ARGUMENT

ARGUMENT

I. The Eighth Amendment Sel f-Evident-

ly Prohibits the Execution of

Children, and There Is No Constit-

utionally Acceptable Basis For

Drawing The Line Of Adulthood At

Any Point Other Than Age Eighteen...

A. Examination of the Reasons Why

Execution of Very Young Children

Is Self-Evidently Unconstitu-

tional Reveals the Factors

That This Court Should Consider

in Determining the Minimum Age

for Eligibility for Capital

Punishment

The Attributes of Childhood

That Render Ten-Year-Olds Exempt

From Execution Are Generally

Shared By The Class of Minors

Below The Age of Eighteen

1. The Prevalence of Impulsi-

vity and Poor Judgment Among

Adolescents Below the Age of

Eighteen Renders Inapplicable

The Goals of Deterrence and

Retribution

2. Adolescents’ Vast Capacity

for Growth and Rehabilita-

tion Renders Unjustifiable

the Use of the Ultimate and

Irrevocable Penalty of Death..

Cc. There is No Constitutionally

Acceptable Basis for Drawing the

Line of Adulthood At Any Point

Other Than Age Eighteen .........

l. The Objective Manifestations

of Modern Values Militate

For Drawing the Line At

Age Eighteen ......cceeeeeeees

2. This Court's Prior Analyses

of Children's Rights and

Disabilities Also Militate

for Treating Children as A

Coherent Class and Drawing

the Line at Age Eighteen......

II. Assuming Arguendo that There Were

A Principled Basis for Distinguish-

ing Among Juveniles in the Capital

Sentencing Context, the Mechanisms

for Doing So in Georgia and

Missouri Do Not Provide a Constitu-

tionally Acceptable Basis for

Such Decisionmaking .......eeeeee8.

A. Although The Georgia Statute

Sets A Minimum Age For Death-

Eligibility, It Fails To Provide

Adequate Procedural Safeguards

For Minors Like Petitioner

Jose High Who Are Above The

Statutory Minimum Age ..........

18

30

33

40

47

48

B. Missouri's Use of Transfer to

Determine Death-Eligibility

Suffers From the Same Flaws As

The Oklahoma Scheme Considered

In Thompson And Results In

Irrational And Inconsistent

Imposition of the Death Penalty.

1.

The Missouri Statute Suffers

From The Same Defects That

Led This Court To Strike

Down The Death Sentence In

By Relying on Transfer As

A Mechanism For Determining

Eligibility For Capital

Punishment, The Missouri

Statute Results In "Freakish"

And Unusual Application of

The Death Penalty ...........

Geico cccocoocececes re, eee eeeeememUc rhc mC eC ee

- iii -

54

54

TABLE OF AUTHORITIES

CASES

, 258 Ga. 188,

367 S.E.2d 36 (1988) ..ceseeeeccccveees

, 443 U.S.

G22 (1979) wee eccceeneeeereereseeeeesees

, 421 U.S.

519 CADTOP cocececoeceeeeeeeoes eee eeee

Cabana v. Bullock, 474 U.S 376 (1986)..

, 455 U.S.

104 CASES) coccccececceceeocs *senereneneeeeeee

, 458 U.S.

782 CASSS) cocccececceceecces ef fe ff *-r-e

, 108 S. Ct. 2320

(1988) see ete eeeeeneneneneneneneneeneneneeneeneeeeeee

, 408 U.S.

238 TEOTSD coccccccoceeeeeoeesoes ef fe © ©

, 390 U.S.

G29 (1969) .ccccccccccccccesssccsececes

, 428 U.S.

153 + ., FRPPPPPTTirrrrrreirreisTrreeseeeeree

, 450 U.S.

398 0) ST TTrTrerere+r+rrrfrrrsee rf © ©

, 332 U.S.

596 TADOOP coccececeseeeoceeeeeees *e © ©

46,49

45

24

53

16-18,

23,37

12,38-

39,52-

53

19

63,64

43-44

9,11,

13,17,

36,63

45

17

, 240 Ga. 327,

240 S.E.2d 833 (1977) ccc ewww nnvccccces 49

Jurek v. Texas. 428 U.S.

262 (1976) sere eeeneneneneneneeneneneeneeeeeeeee 18-19

Lewis v. State, 246 Ga. 101,

268 S.E.2d 915 (1980)... cece nnnecnvvees 49,52

, 438 U.S.

586 TARTS P cocccccecceeeseces re fe ee eeeee 30

Parham v. J.R., 442 U.S.

584 CADRE ovocccococecccceeeseees re ef fe © © 42

Danforth, 428 U.S. 52 (1976).....eee5:. 45

, 467 U.S.

253 0 |) rTTrrTere++Teree re fe fe fe ee ee 41,42

, 476 U.S

1 (1986) see eeeeeeeeeeeeeeeeeeeeeeeenee 19

State v. Kemper, 535 S.W.2d 241

St Ge Sbtecetuedéssceescoscscces. OC

State v. Mouser, 714 S.W.2d 85

St Se “Scecus cecdenoeeecenesod<e 62

State v, Owens, 582 S.W.2d 366

ak Gr Minced cneeedneecsesacecee 57-58

State v. Tate, 637 S.W.2d 67

i Sn Miinn6é6nceedsnssectotes ea

, 108 S. Ct. 2687

Thompson v. Oklahoma

CASGS) crccccccccecccccececeseceecess passim

, 107 S. Ct. 1676

(1987) *eeeeeeeeveeeeveeeeeeeeeeereeeeereereeee

374 (Ky. 1968) .. ce eeeeeeeeees *eeseseeeee

Col. Rev. Stat. § 16-11-103(1) (a)

(1986) wc cee e ener newer ener enneeeeeeee ‘

Ga. Code Ann. § 17-9-3 (1982)..---++e5.

Ga. Code Ann. § 17-10-14 (Supp. 1987)..

Ga. Code Ann. § 39-l-1l(a) (1992).....--

Ind. Code Ann. § 35-50-2-3

(Supp. 1987) “ene eeeeeeeeeneneneeeeeeneeeeee

Ky. Rev. Stat. Ann. § 640.040(1)

(1987) *eeerieeeeeeeeeeeeneeeneeeeneeeneeeee

Md. Code art. 27, § 412(f) (1988) .....

Mo. Ann. Stat. § 211.021 (Supp. 1988)..

Mo. Stat. Ann. § 211.071 (Supp. 1988)..

Mo. Ann. Stat. § 404.007(14)

(Supp. 1988) . cc ceessssveses “ener vreeeeeee

Mo. Ann. Stat. § 431.055 (Supp. 1988)..

Mo. Ann. Stat. § 475.010(11)

i, PP pccccdeéeeeseuecs a ae

Mo. Ann. Stat. § 507.115

(Supp. 1988) .. ce wenccces *e ewweweeenenrnernereee

- vi-

48,49

50-51

46

59

59

35

54

54-55

47

46

Mo. Ann. Stat. § 565.020 (Supp. 1988)..

Mo. Ann. Stat. § 565.030--565.040

(Supp. 1988) ere eteeeeeeeneneeeeneeeeeeee#ese#e«

Neb. Rev. Stat. § 28-105.01 (1985).....

Nev. Rev. Stat. § 176.025 (1987).......

N.J. Stat. Ann. § 2A:4A-22(a) (1987)...

N.J. Stat. Ann. § 2C:11-3f (Supp.

it YS PPUTELITLTILTILTTTTTT Tee ne ef feeee#*

Ohio Rev. Code Ann. § 2929.02(A)

CASSSD ccccccesceseceeceereeeees ef ff fe fe © ©

Ore. Rev. Stat. § 161.620 (1987).......

Ore. Rev. Stat. § 419.476(1) (1987)....

OTHER AUTHORITIES

American Bar Association Report No.

117A (approved in August, 1983).......

American Convention on Human Rights,

Article SEED cocecocoeseceeeeseeeeeoecs

American Law Institute, Model Penal

Code § 210.6 (Official Draft 1980)....

California Youth Authority,

Offender-Based Institutional

Tracking System (1987).....eeeeeeecees

Fagan, Rudman & Hartstone,

“Intervening with Violent Juvenile

Offenders: A Community Reintegration

- vii -

54

54

35

59

35

35

35

35

35

37

39

36

21

Model," in Violent Juvenile Criminal Law, Final Report of the

Offenders: An Anthology (1984)........ 28 New Federal Code § 3603 (1971)........ 36

Fattah, "Call and Catlytic Response: National Council of Juvenile and

The House of Umoja," in Violent Family Court Judges, Resolution of

: July 14, ery TTT TT TrTrrerT Terre 37

(29S4) cccccccececcesceeeeeeeee *eeeeeee 27

Streib, The Eighth Amendment and

Geneva Convention for the Protection Capital Punishment of Juveniles

of Civilians in Time of War, 34 Cleve. St. L. Rev. 363 (1987)..

Article Be eeeeeeeseeeeeeeeeeee *e @eeee 39 ante, care st aa

Twentieth Century Fund Task Force on

P. Greenwood & F. Zimring, One More Sentencing Policy Toward Young

Chance: The Pursuit of Promising Offenders, Confronting Youth

Intervention Strategies for Chronic Crime 1978 see eee eee eeeeeeeeeseeeeeeenee

Juvenile Offenders (1985).....++++-++- 29 22223

M. Guggenheim & A. Sussman, The Rights United Nations, Economic and Social

of Young People (2d ed. 1985)......+.+.. 46 Council, Report of the Secretary

General, Capital Punishment (1973).... 40

D. Hamparian, R. Schuster, S. Dinitz

& J. Conrad, The Violent Few (1977)... 22 R. Woodson, A Summons to Life:

Mediating Structures and the

Hartman, "Unusual" Punishment: The Prevention of Youth Crime (1981)...... 26

Domestic Effects of International

the Death Penalty, 52 Cin. L. Rev. :

655 CAGES) ccccccsesecccseseceesesesese 40

International Covenant on Civil and

Political Rights, Article 6(5)........ 39

Krisberg, “Preventifig and Controlling

Violent Youth Crime: The State of

the Art," in I. Schwartz, Violent

Youth Crime: What Do We Know About

It and What Can Be Done About It

OC) YA PPT ETELIELELELELELELILLLLTTeeeeee 29

National Commission on the Reform of

- viii - - is «

INTERESTS OF AMICI CURIAE?}

The Amici who have joined in submit-

ting this brief are linked by their special

concern for children and their extensive

experience in working with troubled youth.

It is the hope of Amici that their insights

into the unique nature of childhood and the

attributes of children will be of assistance

to the Court in resolving the difficult

issues raised in these cases.

The Child Welfare League of America is

an association of approximately 450 leading

child welfare agencies in the United States

and Canada and 1,200 affiliates in twenty-

seven state associations, devoted to improv-

ing services for deprived, neglected, and

abused children. The Child Welfare League

1/ This brief is being filed with the

consent of all parties. Copies of the

consent letters are on file with the

Clerk of the Court.

includes in its membership both public and

voluntary, as well as both religious and

non-sectarian agencies.

The National Parents and Teachers

Association (PTA) is the nation's largest

child advocacy organization, comprising 6.4

million members in 50 state congresses and

26,000 local units nationwide and in Europe.

A 501(c)(3) non-profit corporation, PTA is

devoted to the education, health, protec-

tion, and welfare of children and youth.

The national PTA pursues child-related

federal legislation, prepares educational

materials, and promotes parental involvement

in the lives of children.

The National Council on Crime and

Delinquency is a non-prefit corporation that

conducts research, recommends national

juvenile justice standards, and works with

correctional and juvenile court profession-

als and citizens' groups to improve the

quality of the criminal and juvenile justice

systems.

The Children's Defense Fund (CDF) is a

national public charity that represents and

advocates on behalf of low-income, mincrity

and handicapped children. CDF strives for

preventive intervention before youth drop

out of school, suffer family break-down or

get into trouble. CDF also addresses the

special needs of troubled youth in the child

welfare, juvenile justice, and mental health

systems.

The National Association of Social

Workers (NASW), a non-profit professional

association with over 115,000 members, is

the largest association of social workers in

the United States. NASW is devoted to

promoting the quality and effectiveness of

social work practice ard to improving the

quality of life through utilization of

social work knowledge and skills.

The National Black Child Development

Institute (NBCDI) is a non-profit organi-

zation dedicated to improving the quality of

life for Black children and youth. NBCDI's

network of affiliates provides services such

as finding adoptive homes for Black children

and providing tutoring and leadership

training for youth, and its volunteers help

educate their communities about national,

state, and local issues facing Black youth.

The National Network of Runaway and

Youth Services, Inc. is a membership

organization of approximately 1000

community-based youth-serving agencies,

which serves as a communication, information

and public education exchange on issues

affecting youth, advocates on behalf of

vulnerable youth and their families, and

conducts research and demonstration

projects.

The National Youth Advocate Program,

Inc., is a private non-profit youth advocacy

and direct-service organization, which is

responsible for developing and providing a

range of individualized, flexible and

innovative community-based programs for very

troubled and needy youth as an alternative

to institutionalization, and which has had

considerable success in working with older

adolescents with very serious needs and

behavior problems.

The American Youth Work Center, a

Washington-based organization that promotes

improvement of services to children at risk,

holds national and international training

conferences and prepares reports on issues

relating to youth services.

SUMMARY OF ARGUMENT

Amici's lengthy experience in coun-

seling and rehabilitating troubled youth

compels the conclusion that no person should

ever be executed for an offense committed

while under the age of eighteen years.

In Part I of this brief, amici

demonstrate the unavoidability of the

conclusion that the Eighth Amendment

establishes safeguards against the execution

of children who were under eighteen at the

time of the offense. Amici draw on their

knowledge of adolescents to show that the

same factors that render capital punishment

unconstitutional for very young children

render it equally improper for all children

below the age of eighteen. In particular,

amici call on their knowledge of youthful

offenders to show that even extremely

violent youth are capable of rehabilitation

when provided with appropriate services. It

would not only be senseless, but fundamen-

tally inhumane, to extinguish the lives of

young people who could grow into productive

and responsible members of society.

Part II demonstrates that even assuming

arguendo that viable distinctions could be

drawn between sub-classes of children for

purposes of capital punishment, the

statutory schemes of Georgia and Missouri

fail to serve that classification function

in a constitutionally acceptable manner.

Last Term, all the members of this

Cour*. “agree[d) on (the) . fundamental

proposition . . that there is some age

below which a juvenile's crimes can never be

constitutionally punished by death."

Thompson v. Oklahoma, 108 S. Ct. 2687, 2706

(1988) (O'Connor, J., concurring). See id.

at 2695 (plurality opinion); id. at 2718

(Scalia, J., dissenting).

The hypothetical employed by the

plurality in Thompson in describing this

preposition as “self-evident” -- the

execution of a ten-year-old (see id. at 2695

& n.27) -- is worth considering in order to

extract the factors that render it compel-

ling. As this hypothetical makes apparent,

the execution of a child does not contribute

measurably to either of the “two principal

social purposes" of capital punishment:

“deterrence of capital crimes by prospective

offenders" and “retribution.” Gregg v.

Georgia, 428 U.S. 153, 183 (1976) (plurality

opinion).

This Court concluded in Gregg, supra,

that “the death penalty undoubtedly is a

significant deterrent" for many criminals.

428 U.S. at 185-86. In speaking of the

quintessential type of murderer who might be

deterred by capital punishment -- the

“murder(er) for hire” who engages in a "cold

calculus .. . precedfing) the decision to

act,” id. at 186, the Court presumably was

envisioning a sophisticated adult. With

respect to adult murderers, it seems quite

clear that the expansion of the range of the

death-eligible population to include ten-

year-olds would not contribute even margin-

ally to the goal of deterring adults from

committing capital crimes. Adults are not

likely to view the execution of a ten-year-

old as having any relevance to then.

Thus, the only population that could

even conceivably be affected by the

inclusion of ten-year-olds in the death-

eligible population would be children in the

same general age range. But, in fact, the

execution of a ten-year-old would not deter

other young children from homicide, for such

children do not have the ability to make

rational judgments about their behavior.

Ruled by their feelings, extraordinarily

dependent upon their parents for protection

and guidance and survival, and emotionally

bound to their families, young children's

"judgments" are the products of family

dynamics and emotion, rather than the

considered assessment of alternative courses

of behavior. Thus, a ten-year-old might

kill someone (or at least attempt it) if the

homicide seemed necessary to the aid and

- 10 -

comfort of his family or if it seemed that

the family would condone or approve it. The

threat of death would no more deter such a

child than it would "those [adults] who act

in passion for whom the threat of death has

little or no deterrent effect." Gregg v.

Georgia, supra, 428 U.S. at 185.

Similarly, the execution of a ten-year-

old would not satisfy society's need for

retribution. Ten-year-olds do not yet have

the capacity to function as moral beings,

able to evaluate their behavior in light of

socially accepted values. They simply do

not yet know the appropriateness of behavior

within the society in which they live.

Instead, ten-year-olds are profoundly

dependent upon their parents and their

family to define for them the boundaries of

the appropriate. Ten-year-olds have no

independent ability to evaluate the appro-

-ill-

priateness of their own behavior and thus

cannot be held personally responsible for

that behavior, even if it transgresses the

criminal law. For that reason, condemnation

of ten-year-olds makes no contribution to

society's need for retribution.

As this Court has stated, "retribution

as a justification for [the death penalty]

- « »« Very much depends upon the degree of

[the defendant's} culpability.” Enmund v.

Florida, 458 U.S. 782, 800 (1982). The

“critical facet of the individualized deter-

mination of culpability required in capital

cases is the mental state with which the

defendant commits the crime." Tison v.

Arizona, 107 S. Ct. 1676, 1687 (1987). The

ultimate sanction of death is reserved for

those who engage in acts of "intentional

wrongdoing” (Enmund, supra, at 800) and

“purposeful .. . criminal conduct" (Tison,

- 12 <-

supra, at 1687): those individuals who

intentionally kill or who "knowingly

engag(e) in criminal activities known to

carry a grave risk of death." Id. at 1688.

But ten-year-olds lack the ability to under-

stand the moral implications of their beha-

vior, and thus cannot form the "highly culp-

able mental state(s)" (id.) that warrant the

retributive imposition of the death penalty.

Finally, the execution of a ten-year-

old is not warranted by the penological

justification of incapacitation. The need

for incapacitation arises only if the like-

lihood that an offender will kill again is

so great that imprisonment will not suffice

to protect other people. See generally

Gregg v. Georgia, 428 U.S. at 183 n.28. It

is unthinkable that such a need could exist

with respect to a ten-year-old. Such a

child is hardly more than a hint of what he

or she will become as an adult. The poten-

tial to grow into a morally responsible,

productive adult is unlimited in such a

child. With positive support and education,

a ten-year-old child can as fully leave

behind the emotions and behaviors that led

that child to kill as the butterfly leaves

behind the cocoon. There simply cannot be a

legitimate need to incapacitate a ten-year~

old child with the finality of death. As

observed by the Supreme Court of Kentucky

with respect to a child older than ten:

(I}ncorrigibility is inconsistent

with youth; . . . it is impossible

to make a judgment that a fourteen-

year-old youth, no matter how bad,

will remain incorrigible for the

rest of his life.

Workman v. Commonwealth, 429 S.W.2d 374, 378

(Ky. 1968).

- 14°

_

In resolving the difficult question of

where the Eighth Amendment draws the line

between the class of clearly exempt young

children and those individuals eligible for

capital punishment, the foregoing analysis

of the characteristics of a ten-year-old

provides guidance. The line must be drawn

in such a way as to reliably guard against

execution of children whose impulsivity and

lack of judgment render inapplicable the

goals of deterrence and retribution, and

whose capacity for growth renders inapplic-

able the goal of permanent incapacitation.

1. The Prevalence of Impulsivity and

Poor Judgment Among Adolescents

Below the Age of Eighteen Renders

inapplicable the Goals of Deterrence

and Retribution

As the Thompson plurality noted, social

scientific literature overwhelmingly sup-

ports the conclusion that adolescence is a

period characterized by impulsivity and poor

judgment. Thompson, supra, 108 S. Ct. at

2699 n.43 (plurality opinion). The experi-

ence of Amici in working with adolescents

amply supports these observations about the

period of adolescence. The stage of devel-

opmental growth known as adolescence fre-

quently is characterized by: impulsivity and

inability to exercise self-restraint; inabi-

lity to consider the future consequences of

one's actions; the false confidence gener-

ated by feelings of omnipotence; inadequate

judgment, in part because of the lack of

sufficient life experience to provide a

perspective or broader context for evaluat-

ing events; and susceptibility to the influ-

ence of peers, partly because of the lack of

sufficient confidence in one's own identity.

This Court has repeatedly recognized

these aspects of adolescence. For example,

in Eddings v. Oklahoma, 455 U.S. 104 (1982),

- 16 -

the Court observed that minority "is a time

and condition of life when a person may be

most susceptible to influence and to psycho-

logical damage" and that adolescents "gener-

ally are less mature and responsible than

adults." Id. at 115-16. Similarly, in

Haley v. Ohio, 332 U.S. 596, 599 (1948),

this Court referred to the “period of great

instability which the crisis of adolescence

produces."

The typical attributes of adolescence

have an obvious bearing on the assessment of

whether executions of juveniles could

possibly serve the penological goals of

capital punishment. Because many adoles-

cents act impulsively without a "cold calcu-

lus .. . precedfing) the decision to act,"

Gregg v. Georgia, supra, 428 U.S. at 186,

they are no more subject to deterrence than

are their ten-year-old counterparts. The

-17<-

retribution rationale is equally inapplic-

able: adolescents "'deserve less punishment

because (they) may have less capacity to

control their conduct and to think in long-

range terms than adults.'" Eddings v.

Oklahoma, supra, 455 U.S. at 116 n.1l

(quoting Twentieth Century Fund Task Force

on Sentencing Policy Toward Young Offend-

ers). The retribution rationale also is

less applicable to juveniles because "'youth

crime as such is not exclusively the offend-

er's fault; offenses by the young also

represent a failure of family, school, and

the social system, which share responsi-

bility for the development of America's

youth.'" Id.

As this Court recognized in Jurek v.

- 18 -

Texas, 428 U.S. 262 (1976), and again in

Skipper v. South Carolina, 476 U.S. 1

(1986), the determination of the suitability

of the use of the ultimate penalty of death

inevitably involves a "'predict{fion] ..

[of the] convicted person's probable future

conduct.'" Skipper, supra, 476 U.S. at 5;

Jurek, supra, 428 U.S. at 275. Accordingly,

just as Jurek approved the use of evidence

that "a defendant would in the future pose a

danger to the community if he were not

executed... as... an ‘aggravating

factor’. . .{,]) (Skipper held that] evidence

that the defendant would not pose a danger

if spared (but incarcerated) must be consi-

dered potentially mitigating." Skipper,

Supra, 476 U.S. at 5. See also Franklin v.

Lynaugh, 108 S. Ct. 2320, 2329 (1988)

(describing Skipper as holding that the

“defendant's likely future behavior" is a

- 19 -

relevant consideration in a capital senten-

cing determination).

While adults may have widely varying

degrees of potential for rehabilitation, the

class of adolescents shares a common trait

of vast potential for rehabilitation. As

the Thompson plurality observed, adolescence

is a period marked by “capacity for growth."

108 S. Ct. at 2699. It has been the experi-

ence of amici, in working with adolescents,

that they have boundless capability for

change, since the personality that the

individual will have as an adult is still in

the process of being formed. And, precisely

because adolescents are so malleable and may

develop very different personalities and

values as they gain experience and perspec~-

tive, it is impossible to conclude defini-

tively that a particular youth must be

executed in order to incapacitate him or her

- 20 -

from committing future crimes. Indeed, as

the following discussion will show, the

social scientific literature and the

experience of amici demonstrate that many

violent adolescents can be rehabilitated.

Social scientific literature is replete

with evidence that even the most violent

adolescents are capable of dramatic change

and rehabilitation. A two-year follow-up

study of homicide offenders paroled from the

California Youth Authority (CYA) in 1984

showed that 76.7 % of these offenders

successfully completed their period of

parole, while CYA parolees who had been

convicted of non-homicide offenses had a

parole success rate of only 41.9 %.

California Youth Authority, Of fender-Based

Institutional Tracking System (1987). A

study of chronic and violent juvenile

offenders in Ohio similarly found that

approximately 60 % of youths who were

charged with murder in juvenile court were

not subsequently re-arrested as adults. D.

Hamparian, R. Schuster, S. Dinitz & J.

Conrad, The Violent Few (1977).

The experience of Amici in working with

young people confirms these social science

findings on the malleability and inherent

rehabilitative potential of violent youth.

The populations served by amici range from

extremely young, neglected children to

violent delinquents on the verge of

adulthood. Amici have repeatedly found that

these children can be taught to adopt

society's norms, precisely because juvenile

crimes grow out of the “(ajdolescent('|)s ...

vulnerab(ility], ... impulsivi(ty), and ...

flack of] self-discipline[)." Twentieth

Century Fund Task Force on Sentencing Policy

Toward Young Offenders, Confronting Youth

- 22 -

Crime 7 (1978) (quoted in Eddings v.

Oklahoma, supra, 455 U.S. at 115 n.11l).

An examination of a few actual case

histories provides the clearest possible

illustration of the rehabilitative potential

that even extremely violent youth possess:

(i) A girl whom we will call Dora

(real name withheld to preserve confiden-

tiality), grew up in Washington D.c.,

raised by parents who were drug sellers

and addicts. Starting when Dora was eight

years old, her parents used her as a

courier in their drug trade. When Dora

was fourteen-years-old, she killed her

boyfriend, by shooting him in the back.

When Dora was seventeen, she committed an

armed robbery, in which she pistol-whipped

the victim. At the age of eighteen, Dora

committed another homicide, again of a

boyfriend. Dora was removed from her

community, and sent to a residential

facility in California. She graduated

successfully from the program and has

remained crime-free for the past seven

years. Today she is twenty-seven years

old, still living in California, living

with a man who is gainfully employed as

the manager of a small store, and raising

two children.

(ii) Kevin, a sixteen-year-old who

resided in the Roxbury section of Boston,

committed a series of robberies while

armed with a knife. During one of these

armed robberies in 1974, he gratuitously

stabbed a senior citizen. Kevin was

convicted in juvenile court of armed

robbery and assault and battery by means

of a dangerous weapon, and then, pursuant

to the procedure that prevailed in

Massachusetts at the time, the Common-

wealth attempted to transfer him to adult

court for re-prosecution as an adult. The

transfer was prevented by this Court's

intervening decision in Breed v. Jones,

421 U.S. 519 (1975). Kevin was sent to a

community-based non-residential treatment

program for juveniles. The program

provided intensive special educational

services appropriate for his mild mental

retardation, and provided counseling to

deal with his low self-esteem, inadequate

home life, and negative peer group. Kevin

successfully graduated from the program

after one year. Since that time, he has

remained crime-free.

(iii) Michael, a fifteen-year-old boy

who lived in Washington, D.C., killed his

step-mother with an axe, dismembered her

body and put it in the dust-bin. He was

convicted in juvenile court in 1964, and

sentenced to the juvenile detention

facility for an indeterminate period. He

remained in the facility for 4 years and

was released when he was nineteen years

old. While he had been incarcerated in

the facility, he received a variety of

rehabilitative services and, most signifi-

cantly, established a relationship of

trust with a recreation counselor, with

whom he maintained contact even after

leaving the facility. Upon returning to

the community, Michael finished school and

- 24 -

then obtained employment in an air-

conditioning installation Ag He

subsequently married, settled in a working

class apartment project, and raised a

child. As of his last contact with the

recreation counselor, which occurred in

1980, he had remained crime-free and was

still employed and happily married.

(iv) Edward Harrison (real name b

used with consent) was seventeen ca ann

when he committed a felony murder,

shooting the victim with a sawed-off shot-

gun during the commission of a robbery.

The crime took place in Washington D.C. in

March of 1960. Eddie was charged as an

adult with first-degree murder, convicted

and sentenced to death. While Eddie was

on death row awaiting execution, having

waived his right to appeal, it was

discovered that his trial attorney had

been practicing law without a license.

Accordingly, Eddie's conviction was

reversed and he was re-tried. He was once

again convicted, but because the death

penalty was no longer in effect, Eddie was

sentenced to life imprisonment. The

conviction was again overturned on appeal

Eddie was again re-tried and again

sentenced to life imprisonment. However

@uring the eight-and-a-half years that j

Eddie had spent in prison pending appeals

and re-trials, he had become involved in

arranging rehabilitative programs for

himself and other inmates. Through the

support of prison staff and a local judge

Eddie was released pending appeal and

became involved in designing rehabili-

tative programs for delinquent youth. His

conviction was eventually upheld on

- 25 =

1, but, as a result of the progress

yr achieved, his sentence was commuted

by President Nixon. Since Mr. Harrison's

release from prison in 1968, he has

devoted his life to programs for youth.

Now 45 years old, he is the executive

director of a Baltimore-based program for

pre-trial diversion for delinquent youth,

which Mr. Harrison himself created and

initiated with the aid of a federal grant,

and which now is an established Maryland

state program. Mr. Harrison also is the

vice-chairman of the Maryland Juvenile

Justice Advisory Council, and has

testified before Congress on issues

relating to youth and delinquency.

The same remarkable transformation that

occurred in each of these cases has been

replicated in numerous other cases of

— serious crimes as well as less

serious crimes. The successes are usually

due to the quality and creativity of the

rehabilitative facility. For example, the

House of Umoja in Philadelphia has experi-

enced remarkable successes in reforming

members of violent youth gangs, for more

than a decade. See R. Woodson, A Summons to

Life: Mediating Structures and the Preven~

- 26 -

tion of Youth Crime (1981); Fattah, "Call

and Catalytic Response: The House of Umoja,"

in Violent Juvenile Offenders: An Anthology

231 (1984). The Glen Mills School in

Concordville, Pennsylvania, has also had

remarkable successes in reforming extremely

violent delinquents, through a combination

of excellent academic and vocational

training and athletic programs, as well as a

variety of creative measures designed to

build self-esteem. For example:

Richard, a fifteen-year-old who was

convicted of first-degree felony-murder in

the West Virginia juvenile court, was

placed in the Glen Mills School in March

of 1984. During the period of almost

three years that Richard remained at Glen

Mills, he received special education

classes and vocational training in a

variety of marketable skills, and he

participated in student government and

varsity sports. During his final seven

months at the school, Richard was placed

in a day-time job in a local furniture

store, where he could apply the wood-

working skills he had learned at the

school. Richard was released in January

of 1987 and is now living with his sister

in Ohio and complying with all of the

- 27 «

conditions of his probation. He is

presently looking for employment in the

furniture construction trade, and, in the

interim, is working in a restaurant.

Developments in corrections policies in

recent years provide the promise of contin-

ued and increased success in the reformation

of violent youth. In January of 1980, the

Federal Office of Juvenile Justice and

Delinquency Intervention initiated a nation-

wide research and development effort to

identify the most effective intervention

strategies for rehabilitating violent

juvenile offenders. See Fagan, Rudman &

Hartstone, “Intervening with Violent Juven-

ile Offenders: A Community Reintegration

Model," in Violent Juvenile Offenders: An

Anthology, supra at 207-09. The preliminary

results of this national research effort

indicate that recidivism can be signifi-

cantly reduced through a regimen of short-

term confinement in a small secure facility

- 28 -

with intensive staff support, followed by

the provision of carefully planned services

upon the youth's re-entry into the

community. See Krisberg, "Preventing and

Controlling Violent Youth Crime: The State

of the Art," in I. Schwartz, Violent Youth

Crime: What Do We Know About It and What Can

Be Done About It (1987). See also P.

Greenwood & F. Zimring, One More Chance: The

Pursuit of Promising Intervention Strategies

for Chronic Juvenile Offenders (1985).

The available empirical evidence thus

refutes popular assumptions about the

"street-wise" or "hardened" nature of

juvenile criminals. It suggests instead

that adolescents, regardless of whether they

committed very violent offenses or less

serious crimes, are capable of rehabilita-

tion. Thus, with respect to a crucial

element of capital sentencing -- the

- 29 «-

likelihood of commission of future crimes --

juveniles as a class are distinguishable

from adults. Given the irrevocable nature

of capital punishment which calls for a

requirement of heightened reliability in

capital sentencing, see, e.g., Lockett v.

Ohio, 438 U.S. 586, 604-05 (1978), the

Eighth Amendment cannot tolerate the risk of

executing young persons who, with time,

stand a great chance of maturing into

productive members of society.

C. There Is No Constitutionally Acceptable

Basis For Drawing The Line Of Adulthood

At Any Point Other Than Age Eighteen

Certainly it cannot be said that every

person under the age of eighteen necessarily

shares in precisely the same degree the

qualities which typify the period of adoles-

cence. Individual adolescents vary markedly

in their degree of maturity, self-control,

and judgment. The attainment of adult

- 30 -

levels of maturity and judgment may occur at

different ages, depending upon the indivi-

dual youth's prior experiences, education,

and support network of parents and friends.

The question that must be resolved,

then, is whether there is a principled basis

for distinguishing among the class of

adolescents in administering the death

penalty.2 As the discussion in preceding

2/ In essence, there are three distinct

issues of criminal responsibility that

may arise when a child is prosecuted

for a crime. The first of these is

whether the child is criminally

responsible at all. As Justice Scalia

noted in his dissenting opinion in

, the common law absolved

children under the age of seven from

any criminal responsibility whatsoever.

108 S. Ct. at 2714. It is evident that

the common law's concept of the minimal

degree of maturity necessary to be

prosecuted at all is a very different

consideration from the question of the

degree of maturity necessary to justify

the ultimate punishment of death. The

second question that must be asked

regarding prosecution of a child is

- 3l1-

sections has demonstrated, children under

the age of eighteen, as a class, share

certain qualities that render the use of

capital punishment unjustifiable. In the

present section, amici will show that given

the commonality of qualities such as impul-

sivity and poor judgment among adolescents,

the only principled distinction between

children and adults in the context of

capital punishment is the age of majority.

This conclusion is supported by the

whether that child, once subjected to

criminal liability, should be

prosecuted as an adult. The third and

discrete question is whether that

child, having been found mature enough

to be transferred to adult court for

prosecution as an adult, should be

exposed to the ultimate punishment of

death. A positive answer to that final

question necessarily requires a greater

level of culpability and thus maturity

than that needed to render a child

criminally responsible or even subject

to transfer to adult court.

- 32 -

"objective manifestations" of society's

views -- legislative pronouncements and jury

verdicts -- and also by this Court's

analysis of children's rights in prior

caselaw.

1. The objective manifestations of

the line at ade eighteen

There are only six States that have

consciously and clearly chosen to sanction

the use of the death penalty for defendants

who were under the age of eighteen at the

time of the offense. See Thompson, supra,

108 S. Ct. at 2696 n.30. Fifteen States and

the District of Columbia prohibit capital

punishment of adults and juveniles alike.

Twelve States, although tolerating capital

punishment for adults, have consciously

chosen to set the minimum age of eligibility

for capital punishment at eighteen. See id.

Although twenty-three more jurisdictions

- 33 -

fail to specify a minimum age limit for

capital punishment, it can hardly be said

that these jurisdictions have consciously

and clearly sanctioned executions of child-

ren under the age of eighteen since, as

Justice O'Connor explained in her concur-

rence in Thompson, there is no evidence that

these States "realizefd} that [their]

actions would have the effect of rendering

‘children below the age of eighteen)

death-eligible or. [gave] the question

the serious consideration that would have

been reflected in the explicit choice of

some minimum age for death-eligibility."

108 S. Ct. at 2711.

Even more significant to the assessment

of the evolution of national standards of

decency is the fact that recent state leg-

islative proceedings demonstrate a clear

trend of increasing recognition of the

- 34 <

unconscionability of executing children.

Nebraska and Ohio established prohibitions

against the execution of children under the

age of eighteen in 1982. See Neb. Rev.

Stat. § 28-105.01 (1985); Ohio Rev. Code

Ann. § 2929.02(A) (1984). Colorado and

Oregon followed suit in 1985, and New Jersey

in 1986. See Colo. Rev. Stat. § 16-1ll-

103(1)(a) (1986); Ore. Rev. Stat. §§

161.620 & 419.476(1) (1987); N.J. Stat.

Ann. §§ 2A:4A-22(a) (1987) & 2C:11-3g (Supp.

1988). In 1987, the Maryland legislature

joined the growing trend by also adopting

age eighteen as the minimum age for capital

punishment. See Md. Code art. 27, § 412(f)

(1988). Thus, it seems clear that the half-

dozen States that have consciously sanc-

tioned execution of children below the age

of eighteen constitute a dwindling minority.

Model legislation and criminal justice

- 35 -

standards also reflect a contemporary judg-

ment to ban executions of children below the

age of eighteen. The Model Penal Code,

which the Court considered in gauging the

constitutionality of capital punishment in

Gregg v. Georgia, supra, 428 U.S. at 191,

193, recommends that children below the age

of eighteen be deemed ineligible for capital

punishment. See American Law Institute,

Model Penal Code § 210.6 (Official Draft

1980). The National Commission on the

Reform of Criminal Law similarly called for

a prohibition against execution of children

below the age of eighteen. National Commis-

sion on the Reform of Criminal Law, Final

Report of the New Federal Code § 3603

(1971). The American Bar Association, which

has never before taken a formal position on

any aspect of capital punishment, adopted a

resolution in 1983 opposing "the imposition

- 36 -

of capital punishment upon any person for

any offense committed while under the age of

eighteen." American Bar Association Report

No. 117A (approved in August, 1983). The

National Council of Juvenile and Family

Court Judges similarly adopted a resolution

on July 14, 1988, declaring that the Council

“is opposed to capital punishment of those

who committed an offense while under the age

of eighteen years."

Accurate assessment of jury verdicts is

complicated by the fact that prior to this

Court's decision in 1982 in Eddings v. :

Oklahoma, supra, some states unconstitution-

ally prevented the sentencer in a capital

proceeding from giving meaningful considera-

tion to the youth of the defendant as a

mitigating factor. Nonetheless, jury

verdicts in the present decade show an

overwhelming trend against capital punish-

- 37 «-

ment when the defendant was a minor. As of

December, 1983, children under age eighteen

constituted only 2.9 % of the death row

population of 1,289 persons. Streib, The

Eighth Amendment and Capital Punishment of

Juveniles, 34 Cleve. St. L. Rev. 363, 384

(1986). Significantly, in the wake of

Eddings, as the number of death sentences

imposed upon adults has multiplied, the rate

of death sentences for minors has decreased.

From December 1983 to July 1986, the adult

population of death row increased by 42 %

(from 1,250 to 1,770), while the juvenile

population decreased by 16 % (from thirty-

eight to thirty-two); juveniles accounted

for only 1 % of the approximately 700 death

sentences imposed from December, 1983, to

March, 1986. Id.

The consensus of modern values is also

evident in the "'climate of international

- 38 -

opinion.'" Enmund v. Florida, supra, 458

U.S. 796 n.22. Three major international

human rights treaties expressly prohibit the

death penalty for children below the age of

eighteen. See International Covenant on

Civil and Political Rights, Article 6(5), in

Multilateral Treaties Deposited With the

Secretary General of the United Nations, at

124, U.N. Doc. ST/LEG/Ser. E/3 (1985);

American Convention on Hyman Rights, Article

4(5), in Handbook of Existing Rules

Pertaining to Human Rights in the Inter-

American System, OEA/Ser. L/V/II, 65, Doc.

6, July 1, 1985, at 63; Geneva Convention

for the Protection of Civilians in Time of

War, Article 68. Over eighty nations,

including the vast majority of western

European countries, have either abolished

the death penalty altogether or have

forbidden it for children and adolescents.

- 39 -

Hartman, "Unusual" Punishment: The Domestic

Effects of International Norms Restricting

the Application of the Death Penalty, 52

Cin. L. Rev. 655, 666 n.44 (1983). Even

among the eighty-one nations that do permit

executions of children, there were only two

juveniles who were actually put to death -

during the decade from 1972-82. Id. at 666-

67 n.44. Reports of the Secretary General

of the United Nations confirm that "the

great majority of Member States report never

condemning to death persons under eighteen

years of age." See United Nations Economic

and Social Council (UNESCO), Report of the

Secretary General on Capital Punishment at

10, UN. Doc. E/5242 (1973).

This Court's decisions concerning the

- 40 -

legal rights and disabilities of minors

repeatedly treat juveniles as a coherent

class, without distinguishing between mature

and immature minors. Significantly, in

these cases, the Court did more than simply

defer to legislative line-drawing. The

Court in each case examined the justifica-

tions for drawing a line between childhood

and adulthood, and upheld legislative

actions because the Court itself concluded

that minors' reduced capacity for mature

decisionmaking provided a justification for

treating them differently from adults.

In rejecting a challenge to the

constitutionality of a statute authorizing

preventive detention for juveniles, this

Court in Schall _v. Martin, 467 U.S. 253

(1984), employed a due process analysis that

was based upon the Court's perception of the

differences between childhood and adulthood.

- 4l1 =

The Court ruled that the right to liberty

enjoyed by all adults is "qualified" (id. at

265) when applied to a juvenile, because

"rcjhildren, by definition, are not assumed

to have the capacity to take care of

themselves." Id. Without distinguishing

between mature and immature minors, or

between differing age groups of minors, the

Court broadly concluded that juveniles’

immaturity and lack of judgment justify the

State in employing preventive detention to

protect "'the juvenile from his own folly.'"

Id. at 265; see also id. at 266.

The Court similarly applied a class-

wide assumption of immaturity in Parham v.

J.R., 442 U.S. 584 (1979), to reject a due

process challenge to a Georgia civil commit-

ment statute that authorized third-party

commitment of children under the age of

eighteen. In curtailing children's liberty

- 42 -

interests in this context, the Court relied

upon the generalization that "[mjost

children, even in adolescence, simply are

not able to make sound judgments concerning

many decisions." Id. at 603.

When the Court in Ginsberg v. New York,

390 U.S. 629 (1968), rejected a First

Amendment challenge to a state statute

prohibiting the sale of sexually explicit

(albeit non-pornographic) material to

minors, the Court's analysis rested upon its

conclusion that the State can take steps to

ensure that children "are ‘safeguarded from

abuses' which might prevent their ‘growth

into free and independent well-developed men

and citizens.'" Id. at 640-41. Ina pass-

age that has often been reiterated by this

Court, Justice Stewart expressed the gener-

alization that children are "not possessed

of that full capacity for individual choice

- 43 -

which is the presupposition of First Amend-

ment guarantees." Id. at 649-650 (Stewart,

J., concurring) (footnotes omitted).

As the plurality observed in Thompson,

"rijt would be ironic if these assumptions

that we so readily make about children as a

class -- about their inherent difference

from udults in their capacity as agents, as

choosers, as shapers of their own lives --

were suddenly unavailable in determining

whether it is cruel and unusual to treat

children the same as adults for purposes of

inflicting capital punishment." 108 S. Ct.

at 2693 n.23. There can be no justification

for employing a "ratchet" analysis that

forbids case-by-case decisionmaking for the

sake of expanding juvenile rights while

employing that very same form of decision-

making for the sake of extinguishing the

- 44 -

—

greatest of all rights, the right to life.3

3/ The decisions addressing a young

woman's privacy right to an abortion

constitute the only factual context in

which this Court has tolerated any

line-drawing on the basis of the rela-

tive maturity or immaturity of

individual youths. See Planned

, 428

Parenthood of Missouri v. Danforth

U.S. 52 (1976); Bellotti v. Baird, 443

U.S. 622 (1979); H.L. v. Matheson, 450

U.S. 398 (1981). However, the Court

has permitted line-drawing only in

order to avoid irrevocable harm to

mature minors. This Court struck down

certain types of burdens on pregnant

minors because of the "grave and

indelible" consequences to a minor if

she is forced to have a child. See

, Supra, 443 U.S. at

642 ("considering her probable

education, employment skills, financial

resources, and emotional maturity,

unwanted motherhood may be

exceptionally burdensome for a minor").

Thus, the Court ruled that the

Constitution requires States to recog-

nize a distinction between mature and

immature minors only where the

deprivation of certain rights and

privileges would result in "grave and

indelible consequences." The present

cases certainly do not fall within this

exception which the Court has carved in

its general approach of treating all

minors as a coherent class. Unlike the

- 45 =

The only principled line between child-

ren and adults in the context of capital

punishment is the same line that this Court

has repeatedly drawn in defining the rights

of minors: the age of majority. For this

reason, the Court should rule that children

who were below the age of eighteen* at the

abortion cases, there are no "grave or

indelible" consequences to anyone --

not the State and certainly not the

minor -- in preventing minors from

being executed.

4/ Although the States vary somewhat in

the age designated as the "age of

majority", virtually all States employ

age eighteen. See M. Guggenheim & A. —

Sussman,

187, 290-91 (2a ed. 1985) (listing the

age of majority for every state). This

includes Georgia. See Ga. Code Ann. §

39-l-l(a) (1982). Missouri has not

established a uniform age of majority;

although eighteen is designated as the

age of majority for most matters (see,

e.g., Mo. Ann. Stat. § 431.055 (Supp.

1988) (competency to contract); Mo.

Ann. Stat. § 475.010(11) (Supp. 1988)

(trusts and estates); Mo. Ann. Stat. §

507.115 (Supp. 1988) (for purposes of

- 46 -

time of the offense cannot be executed.

If.

The plurality and the dissent in

Thompson agreed that the key considerations

in determining the suitability of execution

for a young person are maturity and

responsibility. As the following discussion

will show, neither Georgia nor Missouri

requires a determination of maturity or

moral responsibility as a prerequisite for

sentencing to death an individual whose

offense was committed prior to age eighteen

civil suits)), twenty-one is still the

age of majority for some purposes (see,

e.g., Mo. Ann. Stat. § 404.007(14)

(Supp. 1988) (transfer of property to a

minor).

- 47 -

or even prior to age sixteen. Indeed,

neither State even provides the minimal

protection suggested by the dissent in

Thompson: "a rebuttable presumption that

[the defendant] . . . is not mature and

responsible enough to be punished as an

adult." 108 S. Ct. at 2712.

A. Although the Georgia Statute Sets a

The Georgia statutory scheme, unlike

the Oklahoma statute considered in Thompson,

establishes a statutory minimum age, prohi-

biting capital punishment for a defendant

who was under the age of seventeen at the

time of the offense. See Ga. Code Ann.

§ 17-9-3 (1982).5 Under Georgia law, all

5/ Although the State of Georgia took the

- 48 -

seventeen~-year-olds are eligible for capital

punishment.

As Part I.B of this brief demonstrated,

seventeen~-year-olds share many of the

qualities of adolescence that render capital

punishment unjustifiable for younger child-

ren. The almost universal selection of age

eighteen as the age of majority in this

country attests to the widespread recogni-

tion that many seventeen-year-olds are

unable to exercise adult judgment. That

perception of the differences between

position for several years that the

actual minimum age of eligibility for

capital punishment was thirteen, see,

@.g., Lewis v. State, 246 Ga. 101, 107,

268 S.E.2d 915, 920-21 (1980) (Hill,

J., concurring); Hawes v. State, 240

Ga. 327, 337-41, 240 S.E.2d 833, 840-42

(1977) (concurring opinions of Hall,

J., and Hill, J.), the Georgia Supreme

Court made clear in ,

258 Ga. 188, 367 S.E.2d 36 (1988), that

Ga. Code Ann. § 17-9-3 establishes an

absolute minimum-age of seventeen.

seventeen- and eighteen-year-olds also is

reflected in the selection of age eighteen

as the minimum age of eligibility for

capital punishment in most of the states

that have consciously set a minimum age of

death-eligibility. Even the Georgia

legislature has recognized that significant

developmental differences distinguish

seventeen-year-olds from the class of adults

whose adulthood begins on their eighteenth

birthday: Ga. Code Ann. § 17-10-14 (Supp.

1987) provides that youths transferred to

adult court and convicted of a crime

(including a capital crime) can be impri-

soned only in a juvenile facility and that

placement in an adult correctional facility

cannot take place until the youth reaches

the age of eighteen. °

6/ This statute provides: .

"Notwithstanding any other provisions

- 50 -

Yet, for defendants who are seventeen

of this article, in any case where a

person under the age of 17 years is

convicted of a felony and sentenced

as an adult to life imprisonment or

to a certain term of imprisonment,

such person shall be committed to the

Division of Youth Services of the

Department of Human Resources to

serve such sentence in a detention

center of such division until such

person is 18 years of age at which

time such person shall be transferred

to the Department of Corrections to

serve the remainder of the sentence."

Ga. Code Ann. § 17-10-14 (Supp. 1987).

The conclusion that the Georgia

legislature recognized the developmental

distinction between the ages of seventeen

and eighteen is not inconsistent with its

enactment of a statute forbidding capital

punishment for crimes committed before age

seventeen. This minimum-age statute

expresses the legislature's determination

that no child under the age of seventeen can

possibly be culpable enough to warrant

imposition of the death penalty. It does

not, however, preclude the conclusion that

the developmental differences between ages

seventeen and eighteen might result in some

seventeen-year-olds being too immature to be

eligible for the death penalty.

= 81 -

at the time of the offense, the only proced-

ural protection afforded on account of the

defendant's youth is the same procedural

protection afforded young adults over the

age of eighteen: consideration of the youth

of the defendant as a mitigating factor.

See, e.g., Lewis v. State, 246 Ga. 101, 104,

268 S.E.2d 915, 919 (1980). It is evident

that such a system, which treats youth as

simply one mitigating factor to be weighed

against aggravating factors, does not pro-

vide for specific findings of the character-

istics deemed important by every member of

this Court in Thompson: maturity and culpa-

bility. That conclusion is demonstrated by

Enmund v. Florida, 458 U.S. 782 (1982),

where, notwithstanding Florida's providing

for consideration of the defendant's minor

participation in the crime as a statutory

mitigating circumstance, see id. at 806

- 52 -

(O'Connor, J., dissenting), this Court

created a rule requiring that "at some point

in the process, the requisite factual

finding as to the defendant's culpability

- « (be) made." Cabana v. Bullock, 474

U.S 376, 387 (1986).

In failing to provide any procedural

safeguards such as a specific determination

of culpability despite their youth or "a

rebuttable presumption that [they]

+ « are

not mature and responsible enough to be

punished as an adult," Thompson, supra, 108

S. Ct. at 2712 (Scalia, J., dissenting), the

Georgia system insufficiently guards against

execution of defendants who were immature,

non-culpable seventeen~-year-olds at the time

of the offense. Even if this Court does not

establish a categorical minimum-age of

eighteen, the Court should rule at the very

least that a statutory scheme such as this

- 53 -

violates the Eighth Amendment.

B. Missouri's Use of Transfer to Determine

Death-Eligibility Suffers from the Same

Inconsistent Imposition of the Death

Penalty

1. The Missouri Statute Suffers from

entence in

The Missouri statutory scheme for

determining juveniles' eligibility for the

death penalty suffers from precisely the

same flaws as the Oklahoma statute

considered by this Court in Thompson. In

Missouri, as in Oklahoma, the death penalty

statute fails to establish any minimum age.

See Mo. Ann. Stat. §§ 565.020 & 565.030-

565.040 (Supp. 1988). For children under

the age of seventeen (the age limit for the

jurisdiction of the juvenile court, Mo. Ann.

Stat. § 211.021 (Supp. 1988)), eligibility

for capital punishment is determined by the

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process of transfer to adult court.

Missouri law authorizes transfer of children

“between the ages of fourteen and seventeen

(who have) . . . committed an offense which

would be considered a felony if committed by

an adult." Mo. Stat. Ann. § 211.071(1)

(Supp. 1988). Since the capital punishment

statute specifies no minimum age, any child

who is transferred to adult court for a

capital offense is subject to the death

penalty.

In Missouri, as in Oklahoma, there is

no reason to believe that the state

legislature "deliberately concluded that it

would be appropriate to impose capital

punishment" on the children subjected to

transfer to adult court. Thompson, supra,

108 S. Ct. at 2707 (O'Connor, J., concur-

ring). Because the legislature "proceeded

in this manner, there is a considerable risk

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that the . . . [Missouri] legislature either

did not realize that its actions would have

the effect of rendering (all transferred

children] .. . death-eligible or did not

give the question the serious consideration

that would have been reflected in the

explicit choice of some minimum age for

death-eligibility." Id. at 2711 (O'Connor,

J., concurring).

A review of Missouri caselaw on

transfer to adult court amply supports the

conclusion that "[t]here are many reasons,

having nothing whatsoever to do with capital

punishment, that might [have] motivate([d)]

[the Missouri] legislature to provide

as a general matter for some [16-year-olds])

. to be channeled into the adult crimi-

nal process," such as a legislative judgment

that "(t]he length or conditions of confine-

ment available in the juvenile system.

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[are] inappropriate for serious crimes or

some recidivists." Id. at 2707 (O'Connor,

J., concurring). See, e.g., State v. Tate,

637 S.W.2d 67, 71-72 (Mo. App. 1982)

(fifteen-year-old one week short o}' his

- sixteenth birthday, charged with murder,

transferred to adult court; in approving

transfer, appellate court stresses that it

was “reasonable for the juvenile court to

conclude that from a practical standpoint

only two years of rehabilitative confinement

was available and that based upon the crime

and defendant's past history such a period

was not adequate to rehabilitate defendant

and more important, to protect society from

him"); State v. Owens, 582 S.W.2d 366, 371,

375 (Mo. App. 1979) (primary factor in

justifying transfer of fifteen-year-old

charged with rape was the restriction upon

the length of confinement that could be

- 57 «-

ordered through the juvenile justice

system); State v. Kemper, 535 S.W.2d 241,

250-51 (Mo. App. 1976) (although fifteen-

year-old charged with murder was a first

offender who had been diagnosed as suffering

from mental problems which could be treated

in a secure wing of a State Hospital which

included adults, transfer ordered because

"there was no exclusively juvenile facility

available to the court which would provide

the treatment which might be required by the

child and still afford the security which

the court deemed essential in the handling

ofa youth such as appellant" and because

the length of confinement through the

juvenile justice system would not provide

sufficient time for rehabilitation).

The only factor that prevents

petitioner Heath Wilkins from benefitting

from the rule this Court adopted in Thompson

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is of course that petitioner is sixteen, and

the facts of the Thompson case did not

require this Court to consider the applica-

bility of its holding to children over the

age of fifteen. The evidence of a national

consensus against execution of sixteen-year-

olds is virtually as strong as the evidence

considered by this Court in Thompson with

respect to fifteen-year-olds, and certainly

strong enough to justify the type of precau-

tion adopted in Thompson. Fifteen of the

eighteen states that have specified a mini-

mum age for capital punishment prohibit

execution of sixteen-year-olds.’ Thus, only

three state legislatures in this country

7/ The only states that have established a

minimum-age of sixteen are: Indiana

(Ind. Code Ann. § 35-50-2-3 (Supp.

1987)); Kentucky (Ky. Rev. Stat. Ann. §

640.040(1) (1986)); and Nevada (Nev.

Rev. Stat. § 176.025 (1987)).

- 59 -

have expressly and consciously chosen to

classify persons who committed an offense

while sixteen as eligible for the death

penalty. Jury verdicts of death in cases in

which the defendant was sixteen at the time

of the crime appear to be almost as rare as

verdicts of death for fifteen-year-olds.

See Streib, supra, at 384-86. Finally, the

social scientific evidence shows that

sixteen-year-olds share with fifteen-year-

olds and younger children the qualities of

impulsivity, lack of judgment, and potential

for change that render inapplicable the

societal purposes for the death penalty.

See Part I supra.

Accordingly, even if the Court does not

create a categorical minimum-age limit of

eighteen, as amici have urged in Part I of

this brief, the Court ceeuké. ot the very

least, strike down petitioner Heath Wilkins’

- 60 -

death sentence on the ground that it was

imposed “under the authority of a capital

punishment statute that specifies no minimum

age at which the commission of a capital

crime can lead to the offender's execution."

Thompson, supra, 108 S. Ct. at 2711

(O'Connor, J., concurring).

2. By Relying on Transfer as a

There is a second and independent

reason for finding that Missouri's statutory

mechanism for determining eligibility for

capital punishment violates the Eighth

Amendment. The transfer system in Missouri

is so unrelated to the necessary inquiry in

capital punishment cases that its use as the

determinant for death-eligibility results in

freakish and unusual application of the

death penalty.

- 61 -

The plurality, concurrence, and dissent

in Thompson agreed that the critical

consideration in determining juveniles’

eligibility for capital punishment must be

maturity. But Missouri transfer caselaw

reveals that maturity is not the central

determinant of which children are transfer-

red to adult court and rendered eligible for

capital punishment. See, e.g., State v.

Mouser, 714 S.W.2d 851, 858 (Mo. App. 1986)

(sixteen-year-old charged with capital

murder transferred despite evidence of

“immaturity and tendency to make decisions

emotionally rather than intellectually” and

despite lack of criminal history, because

defendant was intellectually average and

because the rehabilitative facilities

available through the juvenile court were

not “sufficiently secure and available").

As demonstrated in the previous

- 62 -

section, transfer in Missouri is frequently

predicated on the need for a longer period

of rehabilitation than could be provided

through the juvenile justice system. But

the need for longer rehabilitation (which

necessarily encompasses an assessment that

the individual is amenable to rehabilita-

tion) not only fails to further the inquiry

necessary for death-eligibility; it is

directly inconsistent with the use of

capital punishment.

Thus, Missouri's transfer system does

not ask the questions necessary for ration-

ally "'distinguishing the few cases in which

(the death penalty) is imposed from the many

cases in which it is not.'" Gregg v.

Georgia, supra, 428 U.S. at 188 (quoting

Furman v. Georgia, 408 U.S. 238, 313 (1972)

(White, J., concurring)). The factors that

render a child transferable and thus death-

- 63 -

eligible bear no connection whatsoever to

the considerations that this Court has

deemed relevant to capital punishment. In

short, the use of transfer as a mechanism

for defining the death-eligible population

of children renders the death penalty "cruel

and unusual in the same way that being

struck by lightning is cruel and unusual."

Furman v. Georgia, supra, 408 U.S. at 309

(Stewart, J., concurring).

CONCLUSION

Amici respectfully submit that a

society bounded by an injunction not to

inflict cruel and unusual punishment, as

measured by evolving standards of decency,

should recognize as a categorical rule of

law that no person may be executed for an

offense committed while under the age of

eighteen years. Amici urge this Court to

reverse the judgments of the Supreme Courts

of Georgia and Missouri insofar as they

uphold the imposition of petitioners’

sentences of death.

Dated: New York, New York

August 31, 1988

Respectfully submitted,

RANDY HERTZ

MARTIN GUGGENHEIM

New York University

School of Law

715 Broadway -- 4th Floor

New York, New York 10003

(212) 998-6430

Attorneys for Amici Curiae

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