# Amicus Curiae Brief — Stanford v. Kentucky

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1465%3A21

## Record

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

## Text

NOS. 87-6026 & 87-5666

4\
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...

be

iii-wxiii
1

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

46

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

13

13-14

15

42

15

15

32

15

14

41

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

42

13

15

15

14

13

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

14

14

14

15

40

14

39,44

14

14

13

15

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)

14

13

14

15

14

15

42

13

13

15

14

14

15

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.

Alaska Stat.

§410.06C..

§12:55:125

-£ RR BRR ARARARR BARR ES

15

14

Passim

34,42

13

42

42

Passim

Passim

16

19

19

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

45

45

10,16,17

17

45

45

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

a

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

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

§$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.

These groups+©’ largely oppose capital punishment

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.

X.

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1465%3A21. Public record. Not legal advice.