Amicus Curiae Brief — Stanford v. Kentucky

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NOS. 87-6026 & 87-5666

IN THE oe

SUPREME COURT OF THE UNITED STATES

October Term, 1987

HEATH A. WILKINS, Petitioner

- versus -

STATE OF MISSOURI, Respondent

JOSE MARTINEZ HIGH, Petitioner

- versus -

WALTER ZANT, WARDEN, Respondent

On Writs Of Certiorari To The Supreme Court Of

Missouri And United States Court Of Appeals

For The Eleventh Circuit

>. BD

BRIEF OF AMICI CURIAE FOR RESPONDENTS MISSOURI AND

GEORGIA BY KENTUCKY AND ALABAMA, ARIZONA, ARKANSAS,

CONNECTICUT, FLORIDA, INDIANA, MISSISSIPPI, MONTANA,

NEVADA, OKLAHOMA, PENNSYLVANIA, SOUTH CAROLINA,

—______ SOUTH DAKOTA, VIRGINIA, AND WYOMING _

FREDERIC J. COWAN

KENTUCKY ATTORNEY GENERAL

ELIZABETH ANN MYERSCOUGH

ASSISTANT ATTORNEY GENERAL

*DAVID A. SMITH

ASSISTANT ATTORNEY GENERAL

STATE CAPITOL BUILDING

FRANKFORT, KENTUCKY 40601

(502) 564-7600

COUNSEL FOR AMICI CURIAE

“Counsel of Record

—F Aw —_

Honorable Don Siegelman

Attorney General of Alabama

Honorable Robert K. Corbin

Attorney General of Arizona

Honorable John Steven Clark

Attorney General of Arkansas

Honorable John J. Kelly

Connecticut Chief State's Attorney

Honorable Robert A. Butterworth

Attorney General of Florida

Honorable Linley E. Pearson

Attorney General of Indiana

Honorable Michael C. Moore

Attorney General of Mississippi

Honorable Michael T. Greely

Attorney General of Montana

Honorable Brian McKay

Attorney General of Nevada

Honorable Robert H. Henry

Attorney General of Oklahoma

Honorable LeRoy S. Zimmerman

Attorney General of Pennsylvania

Honorable T. Travis Medlock

Attorney General of South Carolina

Honorable Roger A. Tellinghuisen

Attorney General of South Dakota

Honorable Mary Sue Terry

Attorney General of Virginia

Honorable Joseph B. Meyer

Attorney General of Wyoming

—-

TABLE OF CONTENTS

TABLE OF COREE Bs ccc cc ccc ccreseeesecseees

TABLE OF AUTHORITIES. . wc ccccescvssssvceces

INTERESTS OF AMICI CURIAE ...........2000,

SUMMARY OF ARGUMENT... 1... 2.2 cece eee nn nvness

Il.

IV.

MURDERERS

ARGUMENT

THE EIGHTH AND FOURTEENTH AMENDMENTS DO

NOT IMMUNIZE }6 and 17 YEAR OLD

FROM CAPITAL PUNISHMENT SIMPLY

BY REASON OF THEIR CHRONOLOGICAL AGE.

THOMPSON V. OKLAHOMA IS NOT

DISPOSITIVE OF THESE CASES.........

PUNISHMENT IS A QUESTION OF

LEGISLATIVE POLICY AND ANY EIGHTH

AMENDMENT ANALYSIS MUST GIVE

APPROPRIATE DEFERENCE TO THE

LEGISLATURE. .ccccccccccesseseevece

IT IS UNIVERSALLY AND NECESSARILY

PRESUMED THAT LEGISLATURES ARE AWARE

OF THEIR OTHER ENACTMENTS, AND OF THE

PRIOR INTERPRETATIONS GIVEN TO SUCH

STATUTES, WHEN ENACTING A SUBSEQUENT

STATUTE cccccccccvessereseseeececes

THE LAWS OF NON-DEATH PENALTY STATES

SHOULD BE COUNTED AS SUPPORTIVE OF

RESPONDENTS, RATHER THAN PETITIONERS,

IN DECIDING WHETHER A NATIONAL

CONSENSUS EXISTS ON THE PUNISHMENT

OF JUVENILE MURDERERS...........+4.46.

NO SOCIETAL CONSENSUS EXISTS THAT

16 AND i7 YEAR OLDS SHOULD BE

EXEMPTED FROM TO THE DEATH PENALTY...

iii-wxiii

1-3

11-18

18-25

25-31

VI.

VIL.

VIIL.

IX.

XI.

THE INTERNATIONAL TREATIES RELIED

UPON BY THE PETITIONERS AND THEIR

AMICI HAVE NO APPLICATION WHATSOEVER

IN THESE CASES... . 2... cece ec ceees

THE LAWS AND CUSTOMS OF FOREIGN

COUNTRIES ARE IRRELEVANT TO THE

QUESTION OF WHETHER THE EIGHTH

AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION

PROHIBIT CAPITAL PUNISHMENT OF

JUVENILE MURDERERS........ eC cceee

THE DELUGE OF ANTI-DEATH PENALTY

BRIEFS FILED BY PETITIONERS' AMICI

1S NOT A RELIABLE INDICATOR OF

NATIONAL CONSENSUS ON THE PARTICULAR

ISSUE PRESENTED HERE...............

THIS COURT SHOULD NO MORE DRAW A

“BRIGHT LINE” FOR CAPITAL PUNISHMENT

INELIGIBILITY THAN PRESCRIBE A

UNIFORM AGE RANGE FOR JUVENILE

JURISDICTION, PROHIBIT TRANSFER

THEREFROM, OR RIGIDLY DEFINE THE

CIRCUMSTANCES UNDER WHICH INDIVIDUAL

EXCEPTIONS THERETO COULD BE MADE...

THE APPROPRIATENESS OF A DEATH

SENTENCE SHOULD CONTINUE TO BE

DETERMINED ON AN INDIVIDUAL BASIS..

SIXTEEN AND 17 YEAR OLD CRIMINALS

WHO ARE TRIED AS ADULTS RECEIVE THE

BENEFIT OF INDIVIDUALIZED

CONSIDERATION TWICE, WHEN TRANSFERRED

FROM THE JUVENILE COURT AND AGAIN

WHEN THEY ARE TRIED AS ADULTS......

CONCLUSION. 2... ccc ee eee eee nee STEERER EELEEE EE

ii.

32-33

33-35

36-38

39-41

41-43

44-45

TABLE OF AUTHORITIES

Cases

Air Transport, Etc. v. Profess. Air

Traffic, Etc., 667 F.2d 316

Tr Ges GPa cacenceesecosecécoceses

Anderson Seafoods, Inc. v. Graham,

529 F.Supp. 512 (N.D. Fla.

L9GZ) nce ccccccseccesesesesecsceecessees

Anderson v. Black & Decker, 597 F.Supp.

ZOO CBee Eile BODE cc ccccccccccccccese

Arbegast v. Board of Ed. of South

New Berlin Cent. School, 490 N.Y.S.2d

751, 65 N.Y.2d 161,

460 N.E.20 365 (1985)... 2. cece ecccecce

Barclay v. Florida,

ee i ebeeeee

Boulder City v. General Sales

Drivers, etc., 101 Nev. 117,

ee ee cece media eeeses

Brown-Forman Distillers Corp. v. Olsen,

Tenn.App., 676 S.W.2d 567 (1984).......

Buchanan v. Kentucky, 483 U.S. ,

BGT B.C. SOOO CEPSE Pcccccccvcccccceces

Buffington v. Buffington, 69 N.C.

App. 483, 317 S.E.2d 97 (1984).........

California v. Brown,

GVe Gebc BES CEOEe Peccceceesecoeceseeses

13-14

California v. Ramos,

OU.B. DOS ChPSSpeccccccesevesesseces

v. University of Chicago, a

463

Cannon _|

0B. CIT CISTD). cc cccccccccsssccees

P=)

cio

Capwell v. State, Wyo.,

OM Bt Bel | rrr

Commonwealth v. Milano,

300 Pa. Super. 251,

GGG B.S FEO CEPSSPccccvcccccecccceceseos

Daou v. Harris, 139 Ariz. 353,

SFO Pi. BS SOS CESS Pc ccccccccesccecescess

Director, OWCP v. Perini North

River Assoc., 459 U.S. 297 (1983).......

Douglas County v. State, 210 Neb. 762,

BLG B.H.26 FET CAPSS) eo cccccccccceseseses

Driscoll v. Har ounty Com'rs. Court,

Tex.App., 688 S.W.2d 569 (1985).........

Eddings v. Oklahoma,

GES D.B. BOS CEPSSdcccccccccesceccceces

Fare v. Michael C.,

GES GeBe FOU CES Opcccceccecesecceccece

Florida Nat. Gu v. Federal

Labor Rel. Authority, 699 F.2d 1082

CRBED Ghee BOOED ce cccceecceeeesesececeess

Garrison v. Safeway Stores, 102 N.M. 179,

GOS FP. 26 ASSO CEPSEpccccccccccccsccesseces

Giuricich v. Emtrol Corp., Del.,

GED B.S SES CESS cccccccccsevceseeesee

14-15

14 .

Gregg v. Georgia, 428 U.S. 153,

LTT CUDTE) ccc veces ccenesesseesevevees

Haven Point Enterprises, Inc. v.

United Kentucky Bank, Inc.,

Ky., 690 S.W.2d 393 (1985)..........4..

High v. Kemp, 819 F.2d 988

[on ns) PMc rs ceasesesaeeecoencoces

Holt v. Burlington Northern R. Co.,

Mo.App.. 685 S.W.2d 851 (1984)........

Ingram v. Cooper, Colo.,

Fos BR i eo

In Interest of P., 119 Wisc.2d

' BA B, > Bet. |) SPP

In Re Gault, 387 U.S. 1 (1967)........

in re Misener, 213 Cal.Rptr. 569,

38 C.3d 543, 698 P.2d 637 (1985)......

Kent v. United States,

363 U.S. SOI (1966)... ees eens veevvees

Kilowatt Organization (TKO), Inc.

v. Dept. of Energy, Planning and

Development, Minn., 336 N.W.2d

S29 (1963). ccc ccc vscvesccceeveveseeses

Leonard v. Benjamin, 253 Ga. 718,

324 S.B.20 1865 (1985)... ce cscnsesvees

Lewis v. United States, 445 U.S.

Mahwah Tp. v. Bergen County Bd. of

Taxation, 98 N.J. 268, 486

A.2G Bl1S (19BS). ccc eevee csvevscsscsees

11,34,38,42

39,44

Marsland v. Pang, 5 Hawaii App. 463,

701 P.2d 175 (1985)..

Martin v. Luther, 689 F.2d 109

(7th Cir. 1982)......

Mayor and City Council of Baltimore

v. Hackley, 300 Md. 277, 477

A.2d 1174 (1984).....

Murray City v. Hall, Utah

663 P.2d 1314 (1983).

People v. Palmer, 84 I11.Dec. 658,

104 111.2d 340, 472 N.E.2d 795 (1984)...

People v. Smith, Mich.,

378 N.W.2d 384 (1985)

Pullano v. City of Bluefield, W.Va.,

342 S.E.2d 164 (1986)

Roberts v. Louisiana,

428 U.S. 325 (1976)..

Roche Products v. Bolar Pharmaceutical Co.,

*erereeeeeeeeete## *# *# * *# © *# @

733 F.2d 858 (D.C. Cir. 1984)...........

Shapiro v. United States,

335 U.S. 1 (1947)....

State v. Clark, N.D.,

367 N.W.2d 168 (1985)

State v. Dunmann, Fla.,

oe Sgt Ee

State v. Dupree, 196 Conn. 655,

fe @ ye, " CER ere ree ne

State v. Feiok, S.D.,

364 N.W.2d 536 (1985)

State ¥.

———_—_—

Thiel v. Taurus Drilling Ltd.,

. 100 Wash.2d

710 P.2d 33 (1985).....

Thompson v. Oklahoma U.S. 4

108

Tison v. Arizona,

107 $.Ct.

S.Ct.

2687 (1988)..

1676 (1987)..

788,

463 U.S. _,

United States v. Professional Air

Traffic Controllers, 653 F.2d 1134

Vem Get. Fee advccoccess

Wilkins v. State, Mo.,

736 S.W.2d 409 (1987)..

Woodson v. North Carolina,

428 U.S. 280 (1976)....

Zant v. Stephens,

462 U.S. 862 (1983)....

CONSTITUTIONAL PROVISIONS:

Eighth Amendment

United States Constitution..............6..

Fourteenth Amendment

Umited States COMStitUtieoR. ...cccccccccecses

STATUTES AND COURT RULES

Ala.Code §12-15-34(a)(Repl.1982)...........

Ala.Code §13A-5-51(7) (Repl.1982)..........

Alaska Stat.

§410.06C..

§12:55:125

-£ RR BRR ARARARR BARR ES

Passim

34,42

Passim

Ariz.Rev.Stat.Ann. §8-202 (1974)...........

i. ee ea” i.) Mace. pepe egecceseses

Ariz.Rev. Stat.Ann.§13-703(G(5)

Ss BUP Pete beseeceoeeeocooseeecoceseeses

Ark.Code Ann. §5-4-605(4)(1987)............

Ark. Code Ann. §§885-1-116(b),

BS—-BO- 80) CEPET Pe cccccccscccsescssecccccsecse

Cal .Pem.CeGe $290.5 (2968)... ccccccccsscces

Cal.Penal Code §190.05(h)(9)

CWBGE BOGS) occ cccccccsesescicsesesccsessecs

Col.Rev.Stat.§16-11-103(5) (a)

Te PPE ee reese seen eee eeeeoesecocoecoseces

Col.Rev.Stat.§16-11-103(1)(a)

wee ees ees

Conn. Gen.Stat.Ann. §53a-46a(g)(1)(1987)...

10 Del.Code Ann. §938(a)(1)(1975)...........

ll Del.Code Ann. §§636, 4209 (Repl. 1987)...

Fla.Stat. Ann.§92Z1.141(6)(g)(1985)..........

Fla.Stat.Ann. §39.02(5)(c)(1)(Supp. 1988)..

Ga. Code Ann. §17-9-3 (1982).........cc2eeee

Hawaii §§ 571-22, 706-656...........5008. tee

Se PMO cn 6 cece cece cece ceseenseeeseceeonse

Idaho Code 8616-1806 (1)(a)(supp. 1988)......

Ind.Code Ann. §35-50-2-9(c)(7)

CC. DE. BOOO Pc cee cece cece eee secesecesccces

10,16

10,16,17

0. ST ee Pe ae RR me OF tlt a ill linia Sina glen nc

Ind. Code Ann.§ 35-50-2-3(b)

CU. EPMO P cece ccc ccescscessccccescscccces

38 LllL.Amn.Stat. 9-1(b)(Supp. 1988)........

i ee SUE Bocce ccc eeeeeccceces

Kan.Stat.Ann.§§21-3611,

38-1602(b)(3)(4)(6): 38-1604(a).........546.

Kan.Stat.Ann. §45-21-4501(a)..... ccc cee cne

Ky.Rev.Stat. §640.040(1)(Supp. 1987).......

Ky.Rev.Stat.Ann. §532.025(2)(b)

(OB) (Cum. SUPP. LOSS). wee cree essesesessens

La.Code Crim. Proc., art. 905.5(£)(1984)....

La. Rev.Stat.Ann. §§614.30,

LOS LS7O(A) (5) (1986)... ccc cee eee eee

Maine 503 §15-3101, 51 §17A-1152...........

Md. Code §412(f)(Repl. 1988).........25555-

27 Md.Code §413(g) (5)(Repl.1988)..........

Mass.Gen.Laws Ann. 119 §21

Mich.Laws Ann. §712A.2(d)

SCADS SPSS. FRG. wc cccccccsccceseseessseseees

Minn.Stat.Ann. §260.125(1)(3)(3a)..........

Miss.Code Ann. §99-19-101(6)

CPCS. BUR. BOS Pe cc cece ccccccceusrsrawes

Miss. Code Ann. §43-21-151(3)

EUs BUMP Pec ceesecesscecececeseceeeeesess

10,17

ee Mee

Mo.Rev.Stat. §565.032.3 (7)(1986)........... 45

Mo. Rev. Stat. $211.071.1 (€19O6)... cc cccceccs 10,17

Mont. Code Ann. §§41-5.206(1)(a)(i),

45-5-102 (1987)...... ee ee 10,17

Mont.Code Ann. §46-18-304(7)(1987).......... 45

Nebr. Rev. Stat. §28-105.01 (1985).......... 17

Nebr.Rev.Stat. §29-2523(2)(d)(1985)......... 45

Nev. Rev. Stat. §176.025 (1987).........e06. 10,17

Nev.Rev. Stat.$200.035.6 (1987)... ccccccecs 45

N.H. Rev. Stat. Ann. §§21-B:1, 630.1

(V). 630.5 (XII1I)(1986, Supp. 1987)......... 10,17

N.H.Rev.Stat.Ann. §630.5(II1)(b)

PPP eieneedebeeeontbaneceacecebeetbiscceacece 45

N.J. Stat. Ann. §§2A:4A-22(a),

2C:11-3(g)(Repl. 1987, Supp. 1988).......... 17

N.J.Stat.Ann. §2C:11-3 (c)(5)(c)

CRs EWE Pe ec cecceeeececesoneseeceescecens 45

N.M.Stat.Ann. §31-20A-6 (1)(Repl.1987)...... 45

N.M. Stat. Ann. §§28-6-1(A),

es ee re ee 17

N.C. Gen.Stat.§16A-2000(f)(7)

Ps | nn 2.o ears eee ee 66 6606606 6462606 45

N.C. Gen.Stat. §§74-608, 14-17

CRs SOE Dee eeeceweseeesceeeeeeeesecsarves 10,17

N.D. Cont.Code §27-20-34(1),

EE Ry a 22-23

N.Y.Fam.Ct.Act §301.2(1)(b)

DP Me c<chetiaweceocesceseseeeueences 22

RB.

N.Y. Penal Law §§10(18), 30(2)

Ca [. DU Rccocecccocetovcoecese

N.Y.Crim.Pro.Law §§180.75, 190.71,

210.43, 220.10(5)(g) (McKinney 1982

SRG SEse. BGGTIS CuobeeBe BIO. GB cccccecsecocs

Ohio Rev. Code Ann. §2929.02(A)(1986)......

Ohio Rev.Code Ann. §2929.04(B)(4)(1986)....

10 Okla. Stat.Ann. §§1104.2,

iin. cepa eeeeeeeseeocoescooooces

Ore. Rev. Stat. §§161.620,

tt hha. <ceageececeeeceseeoeoores

Ore.Rev.Stat. §163.150(1)(b)(B)

Ss BED ooceecocoececeoeeseeeeesesoeees

42 Pa. Cons.Stat.Ann. §§6322(a)(1978),

Ee a

42 Pa.Cons.Stat.Ann. §9711(e).

Pes RE Does eeeseseocecosoeeeoeceoeeces

R.I. Gen.Laws Ann. §§14-1-7,

eS EE PTT TTT errerererTee

$.C.Code Ann. §16-3-20(C)(b)(7,9)

| | TTT TLE PELEPLrTrrrrrreTe

$.C. Code Ann.§20-7-430(6)(1985).........

$.D. Cod.L.Any. §§26-8-7,

ean ei 2 gore ane es 66s hO e600 460608

Tenn.Code Ann. §32-2-203(}j)(7)(1982)......

Tenn. Code Ann.§§37-1-102(3),

ed et | |) eee

Tex. Pen.Code Ann. §8.07(d)

CU. BOOP cc ce seccesccesccceceeecscees

xi.

10,17

10,17,18

10,18

United States Supreme Court Rule

Te) Pe rere Pere Tee ee. CRETE eTERTeTe 32

Utah Code Ann. §76-3-207

CRP PEse BOOP cee ccvcceccccececoseoes 45

Utah Code Ann. §78-3A-25(1)(1987)........ 10,18

Vt.Stat.Ann. Title 33 §§632(a)(1),

a ER | 23-24

Va. Code Ann. §16.1-269(A)

(REPL. 1988)... cre cecescvescvesssesvesess 10,18

Va.Code Ann. §19.2-264.4(B)

EPR GOEs BUDO P cco cee ecseeecocesescccecceoce 45

Wash.Rev. Code §§9A.32.030(2),

10.95.020, 13.40.11041)(a)(Supp. 1988)... 10,18

Wash.Rev.Code §10.95.070(7)

CGcEs BUMP ct ccccoeeeeesoecncccoceoes 45

W.Va. Code Ann. §49-5-10(c)(d),

SE a er ee a ee a a 23

Wisc. Code §§939.50(3)(a), 940.01......... 23

Wyo.Stat. §$14-6-237 (1986).....ccececcees 10,18

Wyo.Stat.§6-2-102(j)(vii)(1988).

Ala.Code §12-15-34(a)(Repl.1982)........... 16

xii.

OTHER AUTHORITIES:

Ferdinand, “Crime Statistics: Historical

Trends in Western Society”, 1 Encyclopedia

of Criminal Justice (1983).........6cccues 35

Juveni » 19865, Vol.36,

No.2: “The Juvenile & Serious Habitual

Offenderc/Drug Involved Program: A Means To

Implement Recommendations Of The National

Council Of Juvenile & Family Court Judges... 29,30

Juve .

1986, Vol.37, No. 5:

Serious Juvenile Offenders”................. 27-28

Landau, “Trends in Violence and

Aggression: A Cross-Cultural Analysis”,

22 Annales Internationales de

Criminologie (International Annals

GC GD ID codcdecocecebesccocéss 34

Strasburg,

Report to The Ford Foundation............... 27

National Advisory Committee For Juvenile

Justice And Delinquency (NAC)............6.. 29

S BWeScetse Demme Bese Beebe ccccocccoeooecseseos 33

Wolfgang and Zahn, “Homicide: Behavorial

Aspects,” 2 Encyclopedia of Criminal

SB rr er ee ae 34

xiii

INTERESTS OF AMICI CURIAE

IN SUPPORT OF RESPONDENTS,

THE STATES OF GEORGIA AND MISSOURI

The amici curiae represented here are

States having an interest in whether or not the

Eighth and Fourteenth Amendments automatically

exempt 16 and 17 year old murderers from capital

punishment by reason of those killers’ age.

Amici submit this brief in support of

respondents, the States of Georgia and Missouri,

through their Attorneys General or Chief State

Attorneys pursuant to United States Supreme Court

Rule *5.4.

SUMMARY OF ARGUMENT

The courts below correctly held that the

Eighth Amendment does not endow teenaged murderers

with an automatic exemption from capital

punishment. Wiikins v. State, Mo., 736 S.W.2d 409 .

(1967); High v. Kemp. 819 F.2d 988 (lith Cir.

1987). To cule otherwise would substantially

depart from the longstanding premise of this Court

that capital cases must be given individualized

consideration. It would also interfere with the.

prerogative of State legislatures whose function

is to determine public policy concerning crimes

and punishments.

All the States consider the special

mitigation of youth in assessing criminal

responsibility, but recognize there are many

exceptions to the general rvle. This commonsense

approach is reflected by legislative recognition

of an age range in which the presumption of

immaturity may be rebutted in a particular case.

State legislatures set the maximum age for

juvenile court jurisdiction as high as they do to

benefit every arguably immature offender, even at

the obvious expense of including many individuals

who do not deserve such protection. By reaching

safely beyond the common denominator of

chronological immaturity, the States are justified

in examining each such offender individually to

determine whether an exception should be made in

his orc her particular case. Doing so tends to

avoid the obvious unfairness of exposing virtually

indistinguishable killers to vastly different

potential punishments.

There is no societal consensus against the

execution of 16 and 17 year old murderers. Of the

36 States having the death penalty, 25 authorize

that punishment for 16 and 17 year old capi*al

offenders. Even the 14 non-capital States subject

killers of this age to their most severe

penalties. Thus, 50% of all States expose this

age group to capital punishment, 69% of all death

penalty States do so, and 78% of all States impose

theic most severe authorized penalty upon such

offenders. A non-capital State's failure to

authorize the death penalty for persons of any age

cannot reasonably be interpreted as a policy

conferring leniency upon teenagers.

Neither would it be logical to assume that

any State has unwittingly exposed its juveniles to

capital punishment. All the death penalty States

have enacted or amended their juvenile

jucisdiction transfer statutes after they

authorized capital punishment. It is a universal

and necessary cule of statutory construction to

assume that the legislature is cognizant of its

prior enactments.

GUBEN.

THE EIGHTH AND FOURTEENTH AMENDMENTS DO NOT

IMMUNIZE 16 and 17 YEAR OLD MURDERERS

CAPITAL PUNISHMENT SIMPLY BY REASON OF

CHRONOLOGICAL AGE ._

THOMPSON V. OKLAHOMA

1S NOT DISPOSITIVE OF THESE CASES

The question at issue is whether or not the

legal execution of 16 and 1? year old murderers

would, by reason of their birthdates, amount to

cruel and unusual punishment per se under the

Eighth and Fourteenth Amendments.

In urging the Court to draw a “bright line”

exempting all killers under the age of 18 years

from capital punishment, petitioners and their

amici rely primarily upon Thompson v. Oklahoma, __

U.S. _, 108 S.Ct. 2687 (19868)(plurality

decision). They attach significance to the fact

that all eight of the Justices who sat on the

Thompsou Court either found (four), or at least

expressly assumed (four), the existence of some

age limit for the death penalty. Petitioners now

contend that the same considerations which led to

the result in Thompson should likewise control the

decision here.

For various reasons, however, Thompson is

not at all dispositive of these cases. First,

less than a majority of this Court found that a

“national consensus" of any kind exists on the

subject of limiting capital punishment according

to age. Although the four-Justice plurality in

Thompson found the existence of a national

consensus on the subject, neither the concurring

opinion of Justice O'Connor nor the three-Justice

dissent concluded that such agreement on the

matter exists among the States.

Thus, less than a majority of this Court

actually declared a specific minimum age limit for

capital punishment, and in drawing their “bright

l.ne” at below age 16 even the plurality expressly

left open the question concerning killers above

that age:

[Thompson's] counsel and various amici

curiae have asked us to “draw a line”

that would prohibit the execution of any

person who was under the age of 18 at

the time of the offense. Our task

today, however, is to decide the case

before us; we do so by concluding that

the Eighth and Fourteenth Amendments

prohibit the execution of a person who

was under 16 years of age at the time of

his or her offense.

Thompson at 2700 (plurality opinion).

ofie

Next, as explained at greater length in

Argument V of this brief, those who in Thompson

were able to divine a national consensus against

the capital punishment of i5 year old murderers

will find substantially less evidence to support

that conclusion where 16 and 17 year olds are

concerned. A significantly larger number of

States authorize such legal executions, hence the

relatively greater number of 16 and 17 year old

killers being sentenced to death by judges and

juries throughout the country.

The presumption of a 16 or 17 year old's

immaturity is more easily rebutted than that of a

younger person who, unlike the petitioners in

these cases, is neither emancipated nor stands at

’

the threshhold of adulthood. */ The greater ease

i/. Jose High was still living at home (Habeas

Corpus 52, 54) but had been traveling across the

country to New Jersey and Philadephia with two

fellow criminals whom he considered his subservient

“family.” (Trial 564, 775, 790). Filed after the

granting of certiorari in his case, Georgia's

suggestion of mootness raises a serious question as

to whether High was even a juvenile when he executed

ll year old Bonnie Bulloch.

with which this presumption may be reliably

rebutted acises from common human experience and

observation that is reflected by State juvenile

transfer statutes. States universally recognize,

as well they should, that some individuals of this

age deserve to be treated as aduits*’ while

others do not. This is why State legislatures

take the precaution of drawing the line for

juvenile court jurisdiction at an age high enough

to include every offender who might reasonably

deserve a presumption of immaturity. Then, having

obviously reached beyond the common denominator

with such arbitrary line-drawing, States are

justified in identifying the true adults among

that group and punishing them as such on a

case by case basis.

Petitioners also seek support from Justice

O'Connor's concurring opinion in Thompson.

attempting to characterize it as a view that any

capital sentencing statute is invalid for want of

2/. So does this Court. See, e.g..

C., 442 U.S. 707, 734, n.4 (1979)(Justice Powell

dissenting); Eddings v. Oklahoma, 455 U.S. 104, 116

(1982).

speciticity unless the particular provision itself

sets an age Limit. 2/ They would interpret Justice

O'Connor's Opinion as a constitutionally required

format for arranging the provisions of each State

penal code.

Respondents’ amici do not view the Thompson

concurrence quite so simplistically. The concern

expressed by Justice O'Connor was not how 4 State

manifests its intention to capitally punish 15 year

old murderers. Rather, her concern was whether the

State had actually intended to do 60:

Oklahoma has enacted a statute that

authorizes capital punishment for

murder, without setting any minimum

age at which the commission of murder

may lead to the imposition of that

penalty. The State has also, but

quite separately, provided that

15-year-old murder defendants may be

treated as adults in some

circumetances. Because it proceeded

in this manner,

that its actions would have the

effect of rendering 15-year-old

ma eel —_

3/. Carried to its logical conclusion, the

petitioners’ interpretation of the Thompson

concurrence would uphold the specified execution of

a 16 year old while at the same time invalidating

the unspecified execution of a4 17 year old killer.

defendants 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.

Thompson at 2710-2711 (concurring opinion),

(emphasis added).

Absent “the earmarks of careful consideration”,

Justice O'Connor chose to err on the side of caution

in “this unique situation.” Id. at 2711. Such

reasoning presumably would not apply where a State

in one way or another has demonstrated that it

considered a minimum age for capital punishment. As

detailed in Argument III of this brief, neither

should such a result Obtain where it may safely be

assumed that thetlegislature was cognizant of the

death penalty statute's reach.

Il.

PUNISHMENT IS A QUESTION OF LEGISLATIVE

POLICY AND ANY EIGHTH AMENDMENT

ANALYSIS MUST GIVE APPROPRIATE

DEFERENCE TO THE LEGISLATURE .

The plurality, concurring, and dissenting

Opinions in Thompson all agree that views of

society and contemporary moral standards are

reflected by the enactments of legislative

bodies.

It will rarely if ever be the case

that the members of this Court will

have a better sense of the evolution

in views of the American people than

do their elected representatives.

Thompson at 2715 (Justice Scalia dissenting).

Twenty tive states *’ authorize the

execution of 16 and 17 year old murderers. In order

to accept petitioners’ argument that evolving

standards of decency proscribe execution of any

person under 18, the standards of decency as

evidenced by the legislative enactments of half of

these United States must flatly be rejected.

4/. Ala.Code §12-15-34(a); Ariz.Rev.Stat.Ann.

§8-202 and Ariz.Rules of Proc. for Juvenile Court

12 & 14; Ark.Code Ann.§§5-1-116(b) & 5-10-101: 10

Del.Code Ann.§938(a)(1) and 11 Del.Code Ann. §§636

& 4209; Fla.St.Ann.§39.02(5)(c)(1): Ga.Code Ann.

§17-9-3; Idaho Code §16-1806(1)(a): Ind.Code Ann.

§35.50.2-3(b); Ky.Rev.Stat. §640.040(1);:

La.Rev.Stat.Ann.§§14:30 & 13:1570(A)(5): Miss.Code

Ann. §43-21-151 (3); Mo.Rev.Stat.§211.071.1;

Mont.Code Ann. §41-5-206(1)(a)(i) & §45-5-102:

Nev.Kev.Stat. §176.025; N.H.Rev.Stat.Ann.§§21-B:1,

630.1(v) and 630.5(K111); N.C.Gen.Stat.§74-608 &

13-17; 10 Okla.Stat.Ann.§1104.2 & LL12(b): 42

Pa.Cons.Stat. Ann.§§6322(a)(1978), 6355(a)(2);

$.C.Code Ann.§20-7-430(6); S.D. Coditied Laws Ann.

§$§26 8-7 & 26-11-4; Tex.Penal Code Ann. §8.07(d);

Utah Code Ann. 78-3a-25(1): Va. Code Ann.

$16.1 269(A); Wash.Rev.Code §9A.32.030(2).

10:95.020 & 13.40.110(1)(a): Wyo.Stat.§14-6-237.

-10-

;

The deference we owe to the decisions

of the state legislature under our

federal system [citation omitted) is

enhanced where the specification of

punishments is concerned, for “these

are peculiarly questions of

legislative policy.” [citations

omitted).

Gregg v. Georgia, 428 U.S. 153, 177 (1976).

Therefore. in assessing a punishment

selected by a democratically elected

legislature against the

constitutional measure, we presume

its validity. We may not require the

legislature to select the least

severe penalty possible so long as

the penalty selected is not cruelly

inhumane or disproportionate to the

crime involved. And a heavy burden

rests on those who would attack the

judgment of the representatives of

the people.

Id. at 176.

If petitioners’ brignt-line ctandard is

adopted, this “heavy burden” is ignored.

IIl.

IT IS UNIVERSALLY AND NECESSARILY

PRESUMED THAT LEGISLATURES ARE AWARE OF

THEIR OTHER ENACTMENTS, AND OF THE PRIOR

INTERPRETATIONS GIVEN TO SUCH STATUTES.

WHEN ENACTING A SUBSEQUENT STATUTE.

Contrary to the assertions of the

petitioners, these cases do not turn on the

organizational structure of the States' capital

=\=

sentencing schemes. While their chief contention

is that juveniles are invariably too immature for

capital punishment despite any and all

countervailing indicia, they alternatively posit

the one-Justice Thompson concurrence as

presccibing the only constitutional means by which

a juvenile death penalty statute may be enacted.

According to the petitioners and their amici.

juveniles cannot be subjected to the death penalty

unless the capital sentencing statute itself

specifies a minimum age. Otherwise, they claim, by

setting the minimum age in a separate juvenile

waiver statute without mentioning it again in the

capital sentencing provision, the legislature

might not realize that such youthful killers would

be subject to the death penalty.

The fallacy of such reasoning is

self-evident. Some State legislatures, for

example, have arranged their penal codes so that

crimes are defined in one chapter while the

various penalties and defenses therefor are

provided in another. Presumably, not even the

petitioners would seriously allege that such an

oii

organizational format renders the entire penal code

invalid toc failure of one provision to

specifically refer to another.

lt is always appropriate to assume that

our elected repres#ntatives, like other

citizens, know the law. . . we are

especially justified in presuming both

that those representatives were aware of

the prior interpretation. . . and that

their interpretation reflects their

intent.

Cannon v. University of Chicage, 441 U.S. 677,

696-698 (1979). See also, e.g., Director, OWCP v.

Perins North River Assoc., 459°U.S. 297, 319 ~

(1983); Shapiro v. United States, 335 U.S. 1, 16

(1947); Lewis v. United States, 445 U.S. 55, 61-64

(1980); Roche Products v. Bolar Pharmaceutical

Co., 733 F.2d 858 (D.C. Cir. 1984); Florida Nat.

Guard v. Federal Labor Rel. Authority, 699 F.2d

1082 (llth Cir. 1983); Martin v. Luther, 689 F.2d

109 (7th Cir. 1982); United States v. Professional

Airc Traffic Controllers, 653 F.2d 1134 (7th Cir.

1981); Aic Transport, Etc. v. Profess. Air

Traffic, Etc., 667 F.2d 316 (2nd Cir. 1981);

Anderson Seafoods, Inc. v. Graham, 529 F.Supp. 512

(N.D. Fla. 1982); Anderson v. Black & Decker, 597

si®s

F.Supp. 1298 (B.D. Ky. 1984); Daou v. Harris, 139

Ariz. 353, 678 P.2d4 934 (1984); In re Misener, 213

Cal.Rptr. 569, 38 C.3d 543, 698 P.24 637 (1985);

Ingram v. Cooper, Colo., 698 P.24 1314 (1985);

State v. Dupree, 196 Conn. 655, 495 A 24 691

(1985); Giucicich v. Emtrol Corp.. bel . 449 A.2¢

232 (1982); State v. Dunmann. Fla., 427 So.2d 166

(1983); Leonard v. Benjamin, 253 Ga. 718, 324

S.E.2d 185 (1985); Marsland v. Pang. 5 Hawaii App.

463, 701 P.24 175 (1985); People v. Palmer. 84

Ill.Dec. 658, 104 I11.2d4 340, 472 N.E.2d 795

(1964); Haven Point Enterprises, Inc. v. United

Kentucky Bank, Inc.. Ky., 690 S.W.2d 393 (1985);

Bunch v. Town of St. Prancisville, La.App., 446

S$o.2d 1357 (1984); Mayor and City Council of

Baltimore v. Hackley, 300 Md. 277, 477 A.2a 1174

(1984); People v. Smith. Mich., 378 N.W.2d 384

(1985); Kilowatt Organization (TKO), Inc. v. Dept. —

of Energy, Planning and Development, Minn., 336

N.W.24 529 (1983); Holt v. Burlington Northern R.

Co., Mo.App... 685 S.W.2d 851 (1984); Thiel v.

Taurus Drilling Ltd., Mont., 710 P.2d4 33 (1985);

Douglas County v. State. 210 Neb. 762, 316 N.W.2d

-14-

767 (1982); Boulder City v. General Sales Drivers,

etc.. 101 Nev. 117, 694 P.2d 4986 (1965); Mahwah

Tp. v. Bergen County Bd. of Taxation, 98 N.J. 268,

486 A.2d 618 (1985); Garrison v. Safeway Stores.

102 N.M. 179, 692 P.2d 1328 (19864); Arbegast v.

Board of Ed. of South New Berlin Cent. School, 490

N.Y¥.S.2d4 751, 65 N.Y¥.2d 161, 480 N.E.2d 365

(1985); Buffington v. Buffington. 69 N.C. App.

483, 317 S.E.24 97 (1984); State v. Clark, N.D.,

367 N.W.2d 168 (1985); Commonwealth v. Milano, 300

Pa. Super. 251, 446 A.2d 325 (1982): State v.

Feiok, S.D., 364 N.W.2¢ 536 (1985); Brown-Forman

Distillers Corp. v. Olsen. Tenn.App.. 676 S.W.2d

567 (19864); Deiscoll v. Harris County Com'rs.

Court, Tex.App.. 688 S.W.2d 569 (1985); Murray

City v. Hall, Utah, 663 P.2¢ 1314 (1983); State v.

Peterson, 100 Wash.2d 768, 674 P.2d i251 (1984);

Pullano v. City of Bluefield, W.Va., 342 S.E.24

164 (1986); In Interest of P., 119 Wisc.24 349,

349 N.W.24 743 (1984); Capwell v. State, Wyo.. 686

P.2d 1148 (19864).

Carried to its logical conclusion, the

petitioners’ interpretation of the Thompson

~"s

concurrence would exempt juvenile murderers from

non-capital punishments as well as from the death

penalty. According to their analysis, a teenaged

killer could not even be sentenced to life in

prison unless the homicide statute itself

epeciftied a minimum age limit. Such an approach

is neither reasonable nor required by the Eighth

Amendment.

It would be unrealistic to conclude from

Statutory format alone that a State has failed to

appreciate or seriously consider the scope of its

death penalty law. Indeed, all 36 of the death

penalty States2’ have either passed or amended

in some manner their juvenile waiver statutes

after they authorized capital punishment: Ala.Code

§12-15-34(a)(Repl.1982); Ariz.Rev.Stat.Ann. §8-202

(1974), Aciz. R.P. Juv.ct. 12, 14; Ark. Code Ann.

5/. Alabama, Arizona, Arkansas, California,

Colorado, Connecticut, Delaware, Georgia, Florida,

Idaho, Lllinois, Indiana, Kentucky, Louisiana,

Maryland, Mississippi, Missouri, Montana, Nebraska,

Nevada, New Hampshire, New Jersey, New Mexico, North

Carolina, Ohio, Oklahoma, Oregon, Pennsylvania,

South Carolina, South Dakota, Tennessee, .Texas,

Utah, Virginia, Washington and Wyoming.

o* « =

offen

§$§885. 1 116(b). 5-10-1101 (1987); Cal.Pen.Code §190.5

(1988); Col.Rev.Stat.§16-11-103 (1)(a)(Repl.1986);

Conn. Gen.Stat.Ann. §53a-46a(g)(1) (1987); 10

Del.Code Ann. §938(a)(1)(1975), 11 Del.Code Ann.

$$636. 4209 (Repl. 1987); Ga. Code Ann. §17-9-3

(1982); Fla.Stat.Ann. $39.02(5)(c¢)(1) (Supp. 1988);

idaho Code §8616 1806 (1)(a)(Supp. 1988); 38

1ll.Ann.Stat. §9-1(b)(Supp. 1988); Ind. Code Ann.§

35-50. 2-3(b) (Supp. 1968); Ky.Rev.Stat.

§640.040(1)(Supp. 1987); La. Rev.Stat.Ann. §§614.30,

13:1570(A)(5)(1986); 27 Md. Code §412(f)(Repl.

1988); Miss. Code Ann.§43-21-151(3)(Supp. 1987);

Mo.Rev. Stat. §211.071.1 (1986); Mont. Code Ann.

§$41 5. 206(1) (a) (i). 45-5-102 (1987); Nebr. Rev.

Stat. §28-105.01 (1985); Nev. Rev. Stat. §176.025

(1987); N.H. Rev. Stat. Ann. §§21-B:1, 630.1 (V),

630.5 (KLI1)(1986, Supp. 1987); N.J. Stat. Ann.

§§2A:4A-22(a),. 2C:11-3(g)(Repl. 1987, Supp. 1988);

N.M. Stat. Amn. §§28-6-1(A), 31-18-14(A)(Repl.

1987); N.C. Gen.Stat. §§74-608, 14-17 (Supp. 1987);

Ohio Rev. Code Ann. §2929.02(A)(1986); 10 Okla.

Stat.Ann. §§1104.2, 1112(b)(1987); Ore. Rev. Stat.

§§161.620, 419.476(1) (1987); 42 Pa. Cons.Stat.Ann.

s\ >

§$6322(a)(1978) & §6355(a)(1)(1982); S.C. Code

Ann.§20 7-430(6)(1985); S.D. Cod.L.Ann. §§26-8.7,

26-11 4 (19864); Tenn. Code Ann.§§37-1-102(3),

37-1-134(a)(1); Tex. Pen.Code Ann. §8.07(d)(Supp.

1988); Utah Code Ann. §78-3A-25(1)(1987); Va. Code

Ann. §16.1-269(A)(Repl. 1988); Wash.Rev. Code

SS9A.32.030(2), 10.95.020, 13.40.110(1)(a)(1988,

Supp. 1988); Wyo.Stat. §14-6-237 (1986).

It is a necessary rule of statutory

construction to assume that one legislative hand

knows what the other has done, and this is an

especially safe assumption given the relative timing

of the enactments and revisions at issue here. In

view of all the foregoing, it would be less than

credible to assert that any State has unwittingly

exposed youthful murderers to capital punishment.

IV.

THE LAWS OF NON-DEATH PENALTY STATES

SHOULD BE COUNTED AS SUPPORTIVE OF

RESPONDENTS, RATHER THAN PETITIONERS,

IN DECIDING WHETHER A NATIONAL

CONSENSUS EXISTS ON THE PUNISHMENT OF

JUVENILE MURDERERS .

Fourteen States adopt a minority position

that capital punishment should never be inflicted

-18-

upon persons of any age. Consequently, the

Thompson plurality did not consider any of the

laws of these 14 States as holding 15, 16, and 17

year olds culpable and accountable for the crime

of murder. Respondents' amici believe such

examination is necessary. It refutes the theory

there is a societal consensus that 15, 16 and 17

year olds are categorically less accountable for

their acts and should therefore be excluded from

imposition of a State's most severe punishment for

its most severe violent crime - murder.

The 14 non-capital States either have no

juvenile court jurisdiction over 16 and 17 year

olds or can waive them to be tried as adults for

the ccime of murder. All 14 allow imposition of

the maximum penalty for murder against persons of

those ages.

1). Alaska has no age limitation

restricting waiver and transfer of individuals

less than 18 years to criminal court. Alaska

Stat. §410.060. Any person waived to stand trial

as an adult is subject to the maximum punishment

of imprisonment for 99 years. Alaska Stat.

§12:55:125.

-19-

2). Hawaii permits transfer of a person 16

or 17 years old to criminal court upon waiver of

jurisdiction by the family court after a hearing.

HRS §571-22. The maximum punishment carries a

penalty of life imprisonment without possibility

of parole subject to commutation after twenty

years to life imprisonment with parole. HRS

§706- 656.

3. lJowa allows waiver of any individual

between 14 and 18 years old. A person waived from

juvenile court is subject to the maximum penalty

of life in prison. 37 ICA §902.1.

4). Kansas permits 16 and 17 year olds to

be waived to adult criminal court. Certain

categories of 16 year olds are exempt from

juvenile court jurisdiction and subject to

prosecution as an adult. Kan.Stat.Ann.§§21-3611,

38-'602(b)(3)(4)(6); 38-1604(a). There is no

restriction for imposing the maximum penalty of

life in prison on this class of individuals.

Kan.Stat.Ann. 45-21-450l(a).

5). Maine has no age limitation in its

Waiver statute. Chapter 503, Title 15-3101. A

-~20-

sentence of life in prison is the maximum penalty

which may be imposed. Chapter 51, Title 17A-1152.

6). Massachussetts juvenile courts have no

jurisdiction over 17 year olds. Mass.Gen.Laws

Ann. 119 §21. Fourteen, 15 and 16 year olds may

be waived to adult criminal courts. Id. The

maximum penalty which may be imposed is life

imprisonment. Id. 265 §2.

7). Michigan treats 17 year olds as adults

with juvenile courts having concurrent

jurisdiction of offenders between i7 and 18 years

of age and charged with certain enumerated

offenses or conduct. Mich.Laws Ann. §712A.2(d).

Waiver is allowed for individuals age 15 and 16

charged with committing felonies. Id. 712A.4(1).

The maximum penaity is life imprisonment. Id.

750.316.

8). Minnesota permits waiver of

individuals aged 14, i5, 16 and 17. Waiver is

mandatory in certain cases and a prima facie case

of nonamenability to treatment within the juvenile

court system is considered established if the

individual is charged with certain enumerated

-21-

offenses. Minn.Stat.Ann. §260.125(1)(3)(3a). The

maximum period of incarceration is life. §609.10.

9). New York juvenile courts have no

jucisdiction over any individual older than 16.

Juvenile court jurisdiction is also excluded for

individuals aged 13 or older charged with second

degree murder and individuals 14 and older charged

with second degree murder or other enumerated

violent crimes. N.Y.Fam.Ct.Act §301.2(1)(b)

(McKinney 1983); N.Y. Penal Law §§10(18), 30(2)

(McKinney Supp. 1987); N.¥.Crim.Pro.Law §§180.75,

190.71, 210.43, 220.10(5)(g) (McKinney 1982 and

Supp. 1987). The maximum penalty for a juvenile

offender (under 16) is life with an indeterminate

sentence of a minimum of not less than 5 years but

not to exceed 9 years and a maximum of at least 3

years. CLS, Penal Law §70.05.

10). North Dakota allows persons 14, 15,

16 and 17 to stand trial as aduits after a waiver

hearing. In the case of 14 and 15 year olds the

charged offense must involve infliction or threat

of serious bodily harm. Sixteen and 17 year olds

may request waiver and transfer. N.D. Cont.Code

-22-

pT.

eo, en He ac I te ee sar ee

§27-20-34(1). The maximum punishment is life

without eligibility for parole for 30 years, less

sentence reduction for good conduct. N.D. Cont.

Code §2.1-32.0l.

11). Rhode Island permits waiver of 16 and

17 year olds charged with indictable offenses.

R.I. Gen.Laws Ann. §14-1-7. The maximum penalty

for murder is life without eligibility for parole.

R.I. Gen. Laws Ann. §§11-23-2, 12-19.2-1.

12). West Virginia permits waiver from

juvenile court of any person charged with murder

regardless of age. W.Va. Code Ann.

§49-5-10(c)(d). The maximum sentence is life

without parole unless the jury recommends mercy.

W.V. Code Ann. §62-3-15.

13). Wisconsin allows persons 16 and 17 to

be waived from juvenile court jurisdiction to

stand trial as adults. The maximum penalty for

first degree murder is life in prison. Wisc. Code

§§939.50(3)(a), 940.01.

14). Vermont has no juvenile court

jurisdiction of delinquents over 16. Vt.Stat.Ann.

Title 33 §632(a)(l1). Waiver is allowed for

atiitin

individuals 10 years of age but less than 14 for

murder and other enumerated crimes. Id. Title 33,

§635A(a). Juvenile courts have no jurisdiction

over persons 14 and 15 charged with murder or

certain other crimes unless the case is

transferred from criminal court to juvenile

court. The maximum penalty for murder in the

first degree is life imprisonment for a minimum

term of 35 years; with a finding of mitigation,

for a minimum of not less than 15 years; up to and

including life without parole. T.123 §2303(a).

The plurality and concurring opinions in

Thompson assume that the 14 States which do not

impose capital punishment contribute to a societal

consensus that the death penalty is inappropriate

for 15 year olds. These States proscribe the

death penalty for all persons regardless of age.

These States reflect a minority view. Even though’

these States prohibit capital punishment, all 14

recognize that some young offenders should be

treated as adults in terms of culpability and

accountability for crimes they commit. Once the

determination is made that teenaged offenders

o24-

should be tried as adults and held responsible for

their violent acts, no limitation is placed on the

maximum penalty which may be imposed. They are to

be treated as any other adult criminal. The

juvenile justice system no longer affords them

protection from punishment merely because of age.

The societal consensus of all 14 non-capital

States is that 16 and 17 year olas®’, by reason

of age alone or the serious nature of the offense

Or other considerations determined by waiver

hearings, should be subject to the most severe

punishment authorized by their statutes. There is

no consensus among these 14 States that 16 and 17

year olds should not suffer maximum penalties.

The consensus shows the contrary.

Vv.

NO SOCIETAL CONSENSUS EXISTS THAT lo

AND 17 YEAR OLDS SHOULD BE EXEMPTED

FROM TO THE DEATH PENALTY ._

Among the 36 States which endorse. capital

punishment, there is no consensus of a minimum age

6/. Since execution of persons committing capital

crimes when age 16 or 17 is before the Court, ages

younger than 16 are not discussed.

~26-

at which defendants may be sentenced to death.

Seven States, Arizona, Delaware, Florida, Oklahoma,

Pennsylvania, South Carolina and Wyoming, have no

age timitation. South Dakota specifies a minimum

age of 10 years. Montana specifies age 12;

Mississippi age 13; Alabama, Idaho, Missouri, North

Carolina, and ae 14. Arkansas, Louisiana and

Virginia have a minimum age limitation of 15.

Indiana, Kentucky, Nevada and Washington limit

execution to individuals age 16 or older. Georgia,

New Hampshire and Texas specify a minimum age

limitation of 17. California, Colorado,

Connecticut, Illinois, Maryland, Nebraska, New

Jersey, New Mexico, Ohio, Oregon and Tennessee draw

the line at 18 years of age. (See footnote 4.)

There is no broad agreement among the States

at what age capital punishment can be imposed.

Since no societal consensus can be discerned from

legislative enactments, no bright-line should be

drawn prohibiting the death penalty for any person

under 18 years of age.

Analysis of jury deliberations and verdicts

affords no evidence of consensus as to the

= =

appropriateness of executing 16 and 17 year old

murderers. Petitioners and their amici assume that

Since few 16 and 17 year olds have received the

death penalty or been executed, it must wean there

1S a general abhorrence throughout society of

inflicting the death penalty on persons of those

ages. Petitioners' proposition fails to account for

the realities of the juvenile justice system.

The Office of Juvenile Justice and

Delinquency Prevention recently commissioned a

research, test and demonstration study (The Juvenile

Serious Habitual Offender/Drug Involved Program)

which focused on serious, chronic, violent juvenile

otfenders.

The SHO/DI program found that most juvenile

delinquents:

"., . . dO not even make it into

court. Rather, they are diverted out

of the juvenile justice system, early

in the process, often before they

ever get to court. According to Pé 1

Strasburg:2/ Between 80 and 90

percent of arrested children are

diverted or dropped from the judicial

//. Strasburg is the author of Violent Delinquents,

A Report to The Ford Foundation.

— =

~27~

process with little or no

supervision. Half are diverted by

the police themselves. And up to

two-thirds of the cases left may be

withdrawn, dismissed, or adjourned in

contemplation of dismissal. "3/

Data analysis obtained during the program

revealed that the “serious juvenile population is

very, very small. Overall, they represent less than

one percent of the entire juvenile population. "2

_ The fallacy of Petitioners' reliance on jury

verdicts and the conclusions drawn therefrom become

apparert when other factors such as the following

are considered:

1). The relatively small number of violent

juvenile offenders.

2). The disproportionate number of juveniles

diverted or never brought into the juvenile justice

system, much less the criminal system.

8/. Juvenile & Family Court Journal, 1986, Vol. 37,

No. 5, p.28. "Chronic Serious Juvenile Offenders",

Wolfgang Pindur, Ph.D., and Donna K. Wells. (Pindur

is the National Field Manager of the SHO/DI Program;

Wells is also associated with the progran. )

9/. Id. at 28.

-28-

3). The safeguard of waiver hearings by

juvenile courts before transfer of offenders to

criminal court.

4). The fact that several States have no

death penalty at all.

5). The consideration by juries of the

Mitigating factor of the defendant's youth.

The fact there are few jury verdicts

sentencing 16 and 17 year olds to death does not

indicate a consensus against such penalties. All

indicators suggest instead that there are few

opportunities to even consider them.

The violence of chronic youthful offenders is

recognized as the major problem confronting the

juvenile justice system. 22/ The National Councii

of Family Court Judges attempted to address this

problem by endorsing 38 recommendations. Among the

10/. Juvenile & Family Court Journal, 1985, Vol.36,

No.2, pp. 27-28, “The Juvenile & Serious Habitual

Offender/Drug Involved Program: A Means To Implement

Recommendations Of The National Council Of Juvenile

& Family Court Judges" by Wolfgang Pindur, Ph.D.,

and Donna K. Wells commenting on the March 1984

report of the National Advisory Committee for

Juvenile Justice and Delinquency Prevention (NAC).

~29-

various recommendations, two are particularly

relevant to the issue presented to this Court.

“Recommendation #1: Serious Juvenile

Offenders Should Be Held Accountable By

The Courts. The primary focus of the

juvenile court for the disposition of

serious chronic or violent juvenile

offenders should be accountability.

Dispositions of such offenders should

be proportionate to the injury done and

the culpability of the juvenile and to

the prior record of adjudication if any.

‘In conjunction with this

recommendation, the Council

~acknowledges that “the

principal purpose of the

juvenile justice court system

is to protect the public. '"41/

“Recommendation #13: Offenders

Unamenable To Juvenile Treatment Should

Be Transferred. The judges note that

“there are juveniles for whom the

resources and processes vailable to the

juvenile court will serve neither to

rehabilitate the juvenile nor to protect

the public."

Juvenile court judges face the problem of

violent youths every day. These recommendations

acknowledge actual experience and observation that

persons of any age engaging in violence should and

must be held accountable for their actions. By

ott.

their acts, some youths have placed themselves

beyond the pale of treatment recognized as

appropriate for other individuals of their age

group. The remedy left to society at this point

is to treat these anomalies of the juvenile

justice system as it would any other violent

offender. The individual violent youth's

culpability and society's expectations of

accountability demand nothing less.

The Council's recommendations do not

include a call for abolition of the death penalty

for youths. This non-recommendation becomes

conspicious by its absence. It must be assumed

that juvenile court judges are aware that once a

juvenile is transferred to stand trial on murder

charges as an adult, the State may impose its

maximum penalty. In 25 States, this includes the

possibility of death for persons less than 18

years of age. The Council's silence on this

question lends support to amici's position that no

national consensus exists condemning the death

penalty for persons under 18 years old.

aSi-

vi.

THE INTERNATIONAL TREATIES RELIED UPON BY

THE PETITIONERS AND THEIR AMICI HAVE NO

APPLICATION WHATSOEVER IN THESE CASES. _

The petitioner and several of their amici+4

claim that international treaties, three in

particular, require this Court to exempt 16 and 17

year old murderers from capital punishment aside

from Eighth Amendment grounds.

Such contentions are not fairly included in

the guestion for which certiorari was granted, i.e.,

whether the Eighth and Fourteenth Amendments to the

United States Constitution forbid capital punishment

of such killers. ee United States Supreme Court

Rule 21.1l(a); See also Buchanan v. Kentucky, 483

U.S. ,. 107 S.Ct. 2906, 2908, n. 1 (1987),

refusing to consider claims extraneous to thc

questions for which certiorari had been granted.

Two of the treaties relied upon by the

petitioners' amici are the International Covenant on

Civil and Political Rights, and the American

Convention on Human Rights. Neither has been

12/. Amnesty International, Defense For Children

International, and International Human Rights Law

Group.

-32-

ratified by the United States. The third treaty

they cite is the Geneva Convention Relative to the

Protection of Civilian Persons in Time of War.

Although the United States has ratified that pact,

it applies only during war and even then does not

prevent any country from executing its own

citizens. ee 6 U.S.T. 3516, 3520, 3522.

Vil.

THE LAWS AND CUSTOMS OF FOREIGN

COUNTRIES ARE IRRELEVANT TO THE

QUESTION OF WHETHER THE EIGHTH AND

FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION PROHIBIT CAPITAL

PUNISHMENT OF JUVENILE MURDERERS. _

The most unreliable consideration asserted by

the petitiomers and their amici is that which

concerns the laws and customs of foreign countries.

Although the Thompson plurality relied upon the

position taken by Western European and other

Anglo American nations=’ , closer inspection

reveals that 19 of those 22 countries have no death

penalty at all for “ordinary crimes" (except

13/. Respondent's list of these countries would

consist of Australia, Austria, Belgium, Canada,

Denmark, Finiand, France, Greece, Ireland, Italy,

Liechtenstein, Luxembourg, Monaco, the Netherlands,

New Zealand, Norway, Portugal, Spain, Sweeden,

Switzerland, the United Kingdom and West Germany.

wartime offenses or under circumstances not at issue

here). See Amicus Curiae Brief For Amnesty

International, Al-A7. The other three such nations

have not executed a criminal for at least 10 years.

Id.

If these figures were extrapolated to the

United States, one would expect nationwide

opposition to the imposition of capital punishment

for any “ordinary” homicide. In fact, precisely the

opposite is true. Tison v. Arizona, 483 U.S. ,

107 S.Ct. 1676 (1987); Greag v. Georgia, supra.

The unreliability of such cross-national

comparisons is attributable to not only the

substantial differences in culture and heritage, but

to the very nature of crime in other countries.

According to available information, tne per capita

homicide rate in the United States would appear to

be from two to 10 times that of virtually all of the

nations discussed above. =2/ It cannot reasonably -

14/. Landau, "Trends in Violence and Aggression: A

Cross Cultural Analysis," 22 Annales Internationales

de Criminologie (International Annals of Crimin-

ology) 119, 130-131 (1984); Wolfgang and Zahn,

“Homicide: Behavioral Aspects," 2 Encyclopedia of

Criminal Justice 848, 850-851 (1983).

otis

be said that this fact is insignificant in forming

the attitudes of other countries with regard to

capital punishment, or that the same judgment would

be made if these nations had a comparable homicide

rate. An additional difficulty of this kind arises

with particular regard to the present issue of

murders by juveniles. It has never been shown that

comparable problems exist in other countries, and in

fact there is evidence to the contrary. 2~’ Since

independent and reliable evidence exists which

establishes a consensus in the United States

allowing the execution of 16 year olds who commit a

capital homicide, no need arises to examine the

positions taken by other countries on the basis of

their own national experiences.

15/. “{l]nm contrast to the pattern in the United

States, the increase in crime found so prominently

among the young people in Europe seems to have been

concentrated among young adults between eighteen to

twenty-five years of age instead of youths under

eighteen." Ferdinand, "Crime Statistics: Historical

Trends in Western Society," 1 Encyclopedia of

Criminal Justice 392, 399 (1983).

-35-

VIIl.

THE DELUGE OF ANTI-DEATH PENALTY

BRIEFS FILED BY PETITIONERS' AMICI IS

NOT A RELIABLE INDICATOR OF NATIONAL

CONSENSUS ON THE PARTICULAR ISSUE

PRESENTED HERE ._

In a concerted and well organized effort to

persuade this Court, which they are entitled to do,

34 different organizations have filed or joined

mici curiae briefs on behalf of the petitioners.

16/. West Virginia Council of Churches, The

American Baptist Churches, The American Friends

Service Committee, The American Jewish Committee,

The American Jewish Congress, The Christian Church

(Disciples of Christ), The Mennonite Central

Committee; The General Conference Mennonite Church;

The National Council of Churches, James E. Andrews

as Stated Clerk of the General Assembly of the

Presbyterian Church, The Southern Christian

Leadership Conference, The Union of American Hebrew

Congregations, The United Church of Christ

Commission for Racial Justice, The United Methodist

Church General Board of Church and Society, The

United States Catholic Conference, Amnesty

International, Defense For Children International,

International Human Rights Law Group, National Legal

Aid And Defender Association, Nation<«l Association

of Criminal Defense Lawyers, 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, American

Youth Work Center, American Society for Adolescent

Psychiatry. American Orthopsychiatric Assocation,

and the American Bar Association.

-~36-

17/ Several

under an’ conceivable circumstances.

of these organizations are already suggesting that

the “bright line" should be drawn beyond the age

of 18. E.g., the American Society for Adolescent

Psychiatry, the American Orthopsychiatric

Association (at 4, 5, n.5), the National Legal ate

And Defender Association, the National Association

of Criminal Defense Lawyers (at 28, n.13), the

Defense for Children International (at 58-59, n.71),

the West Virginia Council of Churches (at 12).

If this Court were making a legislative

judgment as to whether those who commit a capital

homicide at age 16 should be eligible for the death

penalty, the views of “respected professional

organizations" might well be relevant, both as

arguments on the merits of the proposed legislation

and as an expression on the part of the small

segment of society which such groups represent. The

views of these individual interest groups, however,

——_ — - — - —_——— + -_- _

17/. A notable exception is the American Bar

Association, which five times in its amicus brief

disclaims any general opposition to the death

penalty. Id. at 2, 3, 5, 8 and ll.

~~, =

are not reliable “objective factors" in judging

whether a national consensus exists against the

execution of 16 and 17 year old killers. By

definition, positions taken on behalf of a

particular organization at most represent the

opinion of its members, not society as a whole.

Since no need exists for those entities which

approve an existing practice to formally state that

fact, resolutions of this character inevitably

represent the voices in opposition. Consequently,

Georgia and Missouri do not attempt to inundate this

Court with amici curiae briefs by the countless

victims cights groups which more accurately reflect

societal consensus.

As this Court has acknowledged, it is not

designed or intended to reflect the views of

society, as are legislative or other representative

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

175-176. In paying heed to these groups which have

gone to the effort of expressing formal opposition

on the present issue, there is a considerable risk

of mistaking the clamor of organized protest for a

settled national consensus.

- =

IX.

THIS COURT SHOULD NO MORE DRAW A “BRIGHT

LINE” FOR CAPITAL PUNISHMENT INELIGIBILITY

THAN PRESCRIBE A UNIFORM AGE RANGE FOR

JUVENILE JURISDICTION, PROHIBIT TRANSFER

THEREFROM, OR RIGIDLY DEFINE THE

CIRCUMSTANCES UNDER WHICH INDIVIDUAL

EXCEPTIONS THERETO COULD BE MADE.

A ruling by this Court that juveniles are

invariably too immature for capital punishment would

establish precedent for exempting them from lesser

penalties on the same ground.

At least for the time being, the petitioners

and their amici do not challenge the prerogative of

State legislatures to establish various age ranges

for juvenile court jurisdiction. Neither do they,

as yet, argue that the transfer of individual

offenders from juvenile court for trial as adults is

constitutionally prohibited. And although Kent v.

United States, 383 U.S. 541, 557 (1966) extends

minimum Due Process standards to juvenile transfer

proceedings, not even the defense bar suggests that

the Court should prescribe the criteria for

determining whether a particular offender deserves

to be treated as an adult.

State legislatures set the maximum age for

juvenile jurisdiction as high as they do to benefit

~39-

every arguably immature offender, even at the

obvious expense of including many individuals who do

not deserve such protection. By using this approach

to reach beyond the common denominator of

chronological immaturity, the States are justified

in examining each juvenile individually to determine

whether an exception should be made in his or her

particular case. As the Court has emphasized on

prior occasions, maturity and sophistication are

factors which vary from individual to individual, so

chronological age is only one of the various

circumstances that should be taken into account.

Minors who become embroiled with the law

range from the very young up to those on

the brink of majority. Some of the

older minors become fully "street wise",

hardened criminals deserving no greater

consideration than that properly

accorded all persons suspected of

crime. Other minors are more of a child

than an adult. As the Court indicated

in In Re Gault, 387 U.S. 1 (1967), the

facts relevant to the care to be

exercised in a particular case vary

widely. They include the minor's age,

actual maturity, family environment,

education, emotional and mental

Stability, and, of course, any prior

record he might have.

Fare v. Michael C., supra, 442 U.S. at 734. n.4.

-~40-

All the States recognize the special

mitigation of youth in their juvenile transfer

proceedings long before they do so, again, in

Capital sentencing trials. Consequently, there is

no more reason for this Court to draw a "bright

line" age requirement for capital punishment than

there is for it to do so in the context of juvenile

jurisdiction waiver proceedings. In both situations

that decision is better left to the individual

States whose legislative determinations, for the

sake of comity, should be accorded deference by the

federal judiciary.

THE APPROPRIATENESS OF A DEATH SENTENCE

SHOULD CONTINUE TO BE DETERMINED ON AN

INDIVIDUAL BASIS .

“It is generally agreed ‘that punishment

should be directly related to the personal

culpability of the criminal defendant. '

California v. Brown, 479 U.S. 538, 107 S.Ct.

837, 841, 93 L.Ed.2d 934 (1987) (O'Connor, J.,

concurring)." Thompson at 2698.

Guided, individualized consideration of the

offender's character and the circumstances of his

~4i-

crime is the touchstone of capital sentencing.

See Zant v. Stephens, 462 U.S. 862, 879 (1983).

collecting cases. Gregg v. Georgia, 428 U.S. 153

(1976) and its progeny are intended to avoid the

kind of “rigid”, “mechanical” and “wholly

arbitcary*. determination urged here by the

petitioners. arc Vv. ». 463 U.S. 939,

950 (1983). No particular circumstance of a

capital offender's crime should automatically

require the death penalty, Woodson v. North

Carolina, 428 U.S. 280 (1976), Roberts v.

Louisiana, 428 U.S. 325 (1976), or automatically

— -— -— — —

foreclose it, Tison v. Arizona, supra. Rather,

the sentencer must be “free to consider a myriad

of factors to determine whether death is the

appropriate punishment." California v. Ramos, 463

U.S. 992, 1008 (1983). Youthfulness is only one

such factor and it is not necessarily the most

important.

Maturity varies from individual to

individual. Some individuals never attain it;

some do at an age labeled "child." “Some of the

older minors become fully ‘street wise’ hardened

criminals, deserving no greater consideration than

that properly afforded all persons suspected of

crime." Fare v. Michael C., supra, 442 U.S. at

734, n.4.

The need for individual consideration of

the defendant's character and the circumstances of

the crime becomes glaringly apparent now that a

question of High's true age has been raised. Has

High suddenly become more deserving of the death

penalty as a 19 year old murderer, or less

desecving of death penalty as a 17 year old

murderer? Weither the circumstances of the crime

nor the defendant's character at the time he

committed the crime have changed. There is no

reason relating to the crime or the defendant

which should preclude the death penalty for High.

To draw a bright-line rule prohibiting execution

of anyone less than 18 years of age, and thus

prohibiting High's execution if Georgia cannot

establish his age at 19, undermines the very

pucpose of individualized sentencing of offenders,

which is to fashion a sentence appropriate to the

crime.

iin

XI.

SIXTEEN AND 17 YEAR OLD CRIMINALS WHO

ARE TRIED AS ADULTS RECEIVE THE BENEFIT

OF INDIVIDUALIZED CONSIDERATION TWICE,

WHEN TRANSFERRED FROM THE JUVENILE COURT

AND AGAIN WHEN THEY ARE TRIED AS ADULTS .

No national policy of automatic exemption for

16 and 17 year olds from the death penalty exists.

For those 16 and 17 year olds subject to juvenile

court jurisdiction, waiver proceedings provide

individual consideration of whether the offender can

best be served by the juvenile or criminal justice

system. Kent v. United States, supra, 383 U.S. at

557 requires a hearing, assistance of counsel and a

statement of reasons for the transfer. These

minimum Due Process rights provide additional

safeguards that offenders with presumptive juvenile

status will not be arbitrarily reclassified as

adults.

In all States where 16 or 17 year olds are

eligible for the death penalty, their youth must be

presented as a mitigating factor to the sentencer.

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

~44-

Twenty nine Statest8/ have adopted the holding of

Eddings through legislation designating the

defendant's age as a mitigating factor in capita!

vases.

In every trial where death is a possible

penalty. a 16 or 17 year old will be accorded

consideration of his youth in the assessment of

punishment. Age alone should not exclude a

punishment otherwise deemed appropriate considering

the defendant's character and criminal act.

18/. Ala.Code §13A-5-51(7) (Repl.1982); Ariz.Rev.

Stat.Ann.§13-703(G(5)(Supp. 1987); Ark.Code Ann.

§5-4 605(4)(1987); Cal.Penal Code §190.05(h)(9) (West

1988); Col.Rev.Stat.§16-11-103(5)(a)(Repl.1986);

Conn.Gen.Stat.Ann.§53a-46(a)(g)(1)(1987); Fla.Stat.

Ann.§921.141(6)(g)(1985); Ind.Code Ann.

§35-50 2-9(c)(7)(Cum.Supp. 1988); Ky .Rev.Stat.Ann.

§532.025(2)(b)(8)(Cum.Supp. 1988); La.Code Crim.

Proc., art. 905.5(£)(1984); 27 Md.Code §413(g)

(S5)(Repl.1988); Miss.Code Ann. §99-19-101(6)

(g)(Cum.Supp. 1987); Mo.Rev.Stat. §565.032.3

(7) (1986); Mont.Code Ann. §46-18-304(7)(1987):

Nebr.Rev.Stat. §29-2523(2)(d)(1985): Nev.Rev.

Stat.§200.035.6 (1987); N.H.Rev.Stat.Ann.

§630.5(11)(b)(5)(1986); N.J.Stat.Ann. §2€:11-3

(c)(5)(c) (Supp. 1988); N.M.Stat.Ann. §31-20A-6

(1)(Repl.1987); N.C. Gen.Stat.§16A-2000(f£)(7) (Supp.

198/); Ohio Rev.Code Ann. §292%.04(B)(4)(1986):

Ore.Rev.Stat. §163.150(1)(b)(B)(Supp. 1988); 42

Pa.Cons.Stat.Ann. §9711(e)(4)(Supp.1987); $.C.Code

Ann. §16-3-20(C)(b)(7,9)(Supp.1987); Tenn.Code

Ann.§32 2-203(})(7)(1982); Utah Code Ann. §76-3-207

(2)(e)(Supp. 1988); Va.Code Ann. §19.2-264.4(B)

(v) (Repl. 1983); Wash.Rev.Code §10.95.070(7)

(Cu.Supp. 1988); Wyo.Stat.§6-2-102(j)(vii)(1988).

-45-

WHEREFORE,

affirmed.

*Counsel

of Record

CONCLUS LON

the opinions below should be

Respectfully submitted,

FREDERIC J. COWAN

KENTUCKY ATTORNEY GENERAL

ELIZABETH ANN MYERSCOUGH

ASSISTANT ATTORNEY GENERAL

’

"DAVID A. SMITH

ASSISTANT ATTOPNEY GENERAL

STATE CAPITOL BUILDING

FRANKFORT, KENTUCKY 40601-3494

($02) 564-7600

COUNSEL FOR AMICI CURIAE

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