# Amicus Curiae Brief — Stanford v. Kentucky

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 492 U.S. 361

## Text

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.

- 56 -

[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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1465%3A19. Public record. Not legal advice.