Amicus Curiae Brief — Wilkins v. Missouri

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No. 87-5666/87-6026 gunmenmnenase

87-5760" FP

IN THE

Supreme Court of the United States

Ocroser TERM, 1988

ten eae

——_—_—_—--

JOSE MARTINEZ HIGH,

Petitioner.

VS.

WALTER ZANT, Warden,

Respondent.

HEATH A. WILKINS,

Petitioner.

Vs.

STATE OF MISSOURI,

Respondent.

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

AND TO THE SUPREME COURT OF THE STATE OF MISSOURI

BRIEF OF THE NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION AND THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

*CHARLES OGLETREE

1525 Massachusetts Avenue

Cambridge, Massachusetts 02135

617) 495-5097

JoHN H. BLuME

P.O. Box 11311

Columbia, South Carolina 2921]

(803) 765-0650

Attorneys for Amici Curiae

* Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF INTEREST

OF AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

Ze In the Final Analysis This Court

Must Rely Upon Its Own Informed

Judgment in Determining the

Constitutionality of the Death

Penalty for Juveniles

A Consideration of the Moral

Blameworthiness of Juveniles

Should Lead the Court to

Conclude That Neither of the

Two Principal Purposes of the

Death Penalty Are Met By the

Execution of Juveniles

A. Society's interest in

retribution is not furthered

by sentencing juveniles

to death

Deterrence fails as a

rationale for executing

juveniles because they

lack the faculties for

cold, deliberate calcula-

CONCLUSION

TABLE OF AUTHORITIES

Cases Page

Bellotti v. Baird, 443 U.S. 622

[30703 coxcueens o0eeeeeeu ae 23

Booth v. Maryland, 482 U.S. ___,

107 8.C&. 35230 (1667) 12.5 17, 22

California v. Brown, __U.S.___,

107 8. Ct. 837 (iG87) cee 18, 21

ey v._ ti ervices

International, 431 U.S. 678

(1977) wccovvceeseuen ne 23

Coker v. Georgia, 433 U.S. 584

C1977) cccccsceoseeseuee eee passim

Eddings v. Oklahoma, 455 U.S. 104

(1963) .ccccesecsednnene 23, 25

nmund v. Florida, 458 U.S. 782 7

(1982) cccccoceseseoseuenn passim

Ss Vv. Ga e, 429 U.S. 97

(1976) wcccccccccescenne ne 13

Fisher v. United States, 328 U.S.

463 (1946) .ccccccesenns ane 29

Ford v. Wainwright, 477 U.S. 399

(19GG) coccccccsesseeseuseuen 3, Gs ae

Franklin v. Lynaugh, U.S. ,

108 §$.Ct. 2320 (1968) -ccecsssssen 19

Gregg v. Georgia, 428 U.S. 153

(1976) cccccccccsessesenneee passim

ii

Page

, 450 U.S. 398

(1981) naan weeeeeeeeeeeeeee ee 8 8 24

, 404 F.2d 571

(8th Cir. 1968) eeeeeeeeeeeeeeee @ 13

, 383 U.S.

S41 (1966) .cceeeeeeeeeeececceees 26

, 476 U.S. 162

(1986) annem nmeseeeeeeeenseeaeeee ee 9 11

May v. Anderson, 345 U.S. 528 (1953)... 23

, 458 U.S. 747

(1982) Sea neeeaeeeee 8 eG eeeeseeeeneeeetee @ 23

Missouri v. Danforth, 428 U.S.

52 (1976) wccceeeereeeeeerrecrees 24

, 370 U.S

660 (1962) ...eeeeeeeeeccececeees 8

, 468 U.S.

447 (1984) ceceeeeeccceecereecces 18

= *

108 S.Ct. 2687 (1988) ..--+++-- passim

, es wee —

109 S.Ct. 1676 (1987) ...+++-- 19, 22

, 356 U.S. 86

DT Ge enGeesescocecceccce 5, 12, 14

iii

>t] authoriti

Fredlund, Children and Death from the

School Setting Viewpoint, 47 J.

School Health 533 (1977) .....eeeeeees

Hamburg & Wortman, Adolescent

ogy,

Development and Psychopathology

in 2 Psychiatry ch. 4 (J. Cavenar

OG. Bee seeseceoss ‘ebeecweueseudces se

B. Inhelder & J. Piaget, The Growth

of Logical Thinking from Childhood to

Irwin & Millstein, Biopsychosocial

a & : viors.

7 J. Adolescent Health Care, No. 6S

(HOV. 2906 GUD.) ccoccccescccscccececs

Kastenbaum, Time and Death in

Adolescence, in of Death

SD (4G. FRSEOL GE. ERGO) ceccccecesecse

Kohlberg & Gilligan, The Adolescent

; : ~

W ’

Daedalus 1051 (Fall 1971) ............

Lewis, Pincus, Bard, Richardson,

Prichep, Feldman and Yeager,

Neuropsychiatric, Psychoeducational,

and Family Characteristics of 14

Juveniles Condemned to Death in the

United States, 14 Am. J. Psychiatry

Se GG. Gack cockeuserecnaeeeeseee |

iv

Sheras, Suicide in Adolescents, in

, 759 (C. Walker and M. _—

eds. 1983) eeeeeneane00nee0ee e020 eeevnveeneee? ®

Streib, The Eighth Amendment and

Capital Punis

’

34 Cleve. St. L. Rev. 363 (1987)...-++- 33

vitello, Constitutional Safeguards

for Juvenile Transfer Procedure:

Vv

States, 26 De Paul L. Rev. 23 (1976).-- 32

STATEMENT OF INTEREST OF AMICI CURIAE?

The National Legal Aid and Defender

Association (NLADA) is a non-profit

organization with a membership of 2,300

legal aid and defender offices employing

approximately 25,000 professionals, and,

in addition, over 1,000 individual

members. NLADA's primary purpose is to

assist in providing effective legal

services to persons, including juveniles,

unable to retairm counsel in criminal and

civil proceedings.

The National Association of Criminal

Defense Lawyers, Inc. (NACDL) is a

District of Columbia non-profit corpora-

tion with a membership of more than 5,000

lawyers, including representatives of

every state. NACDL was founded over

1 This brief is filed with the

consent of all parties. Copies of the

consent letters are on file with the Clerk

of the Court.

2

twenty-five years ago to promote study and

research in the field of criminal defense

law, to disseminate and advance’ the

knowledge of the law in the field of

criminal defense practice and to encourage

the integrity, independence and expertise

of defense lawyers.

Among NACDL's stated objectives is

the promotion of the proper administration

of criminal justice. Consequently, NACDL

concerns itself with the protection of

individual and human rights and the

improvement of the Criminal laws, its

practices and procedures. A cornerstone

of this organization's objective, and of

the criminal justice System, is the

fundamental constitutional prohibition

against cruel and unusual punishment

guaranteed by the Eighth Amendment to the

United States Constitution. Additionally,

NACDL has long been concerned with the

3

treatment of juveniles by the criminal

justice system. Therefore, NACDL is very

concerned about these cases, which involve

the question of whether the Eighth

Amendment permits persons under the age of

eighteen to be sentenced to death.

SUMMARY OF ARGUMENT

This case presents the question of

whether the Eighth Amendment prohibits the

execution of persons under the age of

eighteen. This Court's prior decisions

interpreting the Eighth Amendment's ban

against cruel and unusual punishment

establish that the Court cannot determine

whether a particular punishment violates

"the evolving standards of decency that

mark the progress of a maturing society,"

Trop _v. Dulles, 356 U.S. 86, 101 (1958)

(plurality opinion), merely by examining

statutory provisions and jury verdicts.

Rather, in the final analysis, this Court

4

must exercise its own independent judgment

in order to determine whether we may

sentence our children to death.

In utilizing its independent ana

informed judgment, the Court must consider

the lessened moral responsibility that is

inherent in adolescents. Because the

moral culpability of persons under the age

of eighteen is intrinsically less than

that of adults, capital punishment serves

no legitimate penological interest when

imposed upon them; the state's interests

in retribution and deterrence are not

furthered by the execution of teenagers.

Thus the death penalty is an excessive

punishment for persons under the age of

eighteen, and this ultimate sanction is no

longer compatible with our society's

evolving standards of decency when applied

to such young offenders.

5

ARGUMENT

I. IN THE FINAL ANALYSIS THIS

COURT MUST RELY UPON ITS OWN

INFORMED JUDGMENT IN DETERMINING

THE CONSTITUTIONALITY OF THE

DEATH PENALTY FOR JUVENILES.

The Eighth Amendment prohibits the

infliction of any punishment which is

"cruel and unusual."? Although this Court

has determined that the death penalty is

not cruel and unusual punishment per sé,

Gre Vv. orgia, 428 U.S. 153 (1976), it

. In construing the Eighth

Amendment's prohibition against cruel and

unusual punishment, this Court has

determined that a punishment is "cruel and

unusual" if it is excessive. Weems Vv.

United States, 217 U.S. 349 (1910). An

excessive punishment is one which is

disproportionate to the crime, or which

makes no measurable contribution to any

acceptable goal of criminal punishment.

Coker v. Georgia, 433 U.S. 584, 592 (1977)

(plurality opinion); Gregg v. Georgia, 428

U.S. 153, 173 (1976). A punishment is

also constitutionally impermissible if it

offends the “evolving standards of decency

that mark the progress of a maturing

society." Trop _v. Dulles, 356 U.S. 86,

101 (1958) (plurality opinion); Ford v.

Wainwright, 477 U.S. 399, 406 (1986);

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

6

has held that the death penalty violates

the Eighth Amendment when imposed, under

any circumstances, upon certain categories

of offenders, see Ford v. Wainwright, 477

U.S. 399 (1986) (Eighth Amendment pro-

hibits execution of the currently insane),

or for certain categories of offenses, see

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

(Eighth Amendment prohibits capital

punishment for felony-murder where

offender did not personally kill or intend

that lethal force be used); Coker v.

Georgia, 433 U.S. 584 (1977) (Eighth

Amendment prohibits capital punishment for

crime of rape of adult woman).

In deciding whether the death penalty

is a permissible punishment for either a

particular category of offenders or for a

particular offense, the Court has examined

what objective evidence is available that

reflects whether the punishment is

7

compatible with our society's evolving

standarés of decency. However, the Court

has consistently recognized that in the

final analysis it must determine whether

the Eighth Amendment tolerates a par-

ticular sentencing practice. Thus in

Coker v. Georgia, 433 U.S. at 597, the

Court stated: "[Rjecent events evidencing

the attitude of state legislatures and

sentencing juries do not wholly determine

this controversy [over the death penalty

for rape], for the Constitution con-

templates that in the end our own judgment

will be brought to bear on the question of

the acceptability of the death penalty

under the Eighth Amendment." The essen-

tially independent nature of the Court's

judgment was reaffirmed in Enmun Vv.

Florida, 458 U.S. at 7977: "Although the

3 See also Thompson v. Oklahoma,

__ U.8.- , 108 S.Ct. 2687, 2692, n.8

(1988) (quoting Coker for the proposition

8

judgments of legislatures, juries, and

Prosecutors weigh heavily in the balance,

it is for us ultimately to judge whether

the Eighth Amendment permits imposition of

the death penalty (upon the particular

category of offenders in question])."

In examining whether the death

penalty for juveniles under the age of

sixteen was an unconstitutionally exces-

Sive punishment, see Thompson v. Oklahoma,

nr , 108 S.Ct. 2687 (1988), the

Court focused primarily upon certain

available objective Criteria, such as

legislative enactments anc jury verdicts.

The plurality concluded, based upon a

review of the relevant statutory provi-

that the Supreme Court's own judgment must

ultimately be used in the interpretation

of the Eighth Amendment); see gene

ins v. California, 370 U.S. 660

(1962) (Court relied on its independent

judgment in determining that Eighth

Amendment did not permit criminalization

of drug addiction).

9

sions and jury verdicts, that the imposi-

tion of the death penalty upon those under

sixteen violated the Eighth Amendment.

See Thompson, 108 S.Ct. at 2692-98.

Justice O'Connor suggested that more input

from state legislatures was necessary, 108

S.Ct. at 2706-11, while the dissenters

were convinced that there was no constitu-

tional violation, 108 S.Ct. at 2711-27.

Amici agree that an examination of the

particular objective indicia of societal

consensus relied upon by the plurality in

Thompson is’ informative. However, the

question of whether the Eighth Amendment

sanctions capital punishment for minors--

for those under the age of eighteen--

cannot be reduced to a statistical

exercise.

In Coker v. Georgia, for example, the

Court examined objective measures of

societal practice relating to the execu-

10

tion of persons convicted of rape. While

-finding that those measures pointed to a

consensus that the death penalty was an

excessive punishment for the crime of

rape,* the majority went on to conduct its

own, separate analysis--an analysis which

"requires the exercise of judgment, not

the reliance upon personal preferences."

op_v. Dulles, 356 U.S. at 103 (holding

unconstitutional punishment of desertion

through loss of citizenship). A similar

analysis must be made by the Court in

determining the constitutionality of

capitally punishing children under the age

of eighteen. Thus although measures such

as legislative actions, jury verdicts, >

4

See Coker, 433 U.S. at 591-97.

5 ‘

Although jury verdicts are

generally considered to be a reflection of

contemporary community standards, juries

in capital cases do not reflect the whole

array of opinion within any community.

The process of death-qualification, which

the Court has allowed for state's

11

and public opinion polls, are indicators

of our societal standards, they do not

determine the constitutional question

presented. This Court must ultimately

bring its own judgment to bear in deter-

mining whether our evolving standards of

decency endorse the execution of those

under the age of eighteen.

The Eighth Amendment was drafted by

the framers with the clear understanding

that this Court would shoulder the burden

of authoritatively determining the

enforcement of their capital statutes, see

, 476 U.S. 162 (1986),

unquestionably eliminates from juries all

those who cannot consider the use of death

as punishment. An examination of jury

verdicts is thus an examination of what

only part of the community ®elieves is

appropriate. That part of the community

which would not consider the imposition of

a death sentence--a part which must be

taken into account in any assessment of

contemporary standards of decency--is thus

excluded when jury verdicts are examined.

The fact that such a small number of

juveniles have been sentenced to death by

such juries is, accordingly, quite impressive.

12

constitutional validity of punishments as

the nation progressed. Weems v. United

States, 217 U.S. 349, 378 (1910). The

decisions interpreting the Amendment's

prohibition of cruel and unusual punish-

ment have repeatedly recognized its

evolutionary character. In Weems, the

Court, discussing the flexibility of

constitutional interpretation with respect

to the Eighth Amendment, stated: "The

Clause of the Constitution ... may be

therefore progressive, and is not fastened

to the obsolete, but may acquire meaning

as public opinion becomes enlightened by a

humane justice." 217 U.S. at 378 (cita-

tions omitted). A half-century later, the

Court reaffirmed Weems' holding, recog-

nizing that “the words of the [Eighth]

Amendment are not precise, and that their

scope is not static. The Amendment must

draw its meaning from the evolving

13

standards of decency that mark the

progress of a maturing society." Trop v.

Dulles, 356 U.S. at 100-01. More recent-

ly, the Court recognized that "[(tjhe

Amendment embodies ‘broad and idealistic

concepts of dignity, civilized standards,

humanity, and decency...,' against which

we must evaluate penal measures," Estelle

v. Gamble, 429 U.S. 97, 102 (1976)

(quoting Jackson v. Bishop, 404 F.2d 571,

579 (8th Cir. 1968)); see also Ford v.

Wainwright, 477 U.S. at 406. The execu-

ticn of juveniles as we approach the 1990s

is inconsistent with our current en-

lightened sense of humane justice and

would greatly undermine the evolving

standards of decency that mark the

progress of our maturing society.

For this Court to be able to carry

out its duty of interpreting the Eighth

Amendment in a “flexible and dynamic

14

manner," Gregg v. Georgia, 428 U.S. at

171, it must inevitably look not only to

objective data but past that, to its own

considered collective judgment. Its

searching examination of the broad and

idealistic precepts of the Eighth Amend-

ment requires more than a statistical

survey of sentencing practices; rather it

requires an enlightened mind turned toward

"what may be." Weems, 217 U.S. at 373.

Such informed and considered judgment

requires no less than a broad vision of

what we as a society make ourselves out to

be, and cannot be avoided by the totaling

of arithmetical columns.

This broad vision, moreover, is not

dependent on the subjective beliefs of

individual Justices, but rather rests upon

other indicia--depending of course on the

category of persons’ involved--of the

acceptability of sentencing those persons

po ee pa

15

to death. In order to properly resolve

the question presented in this case,

whether it is permissible to execute

minors, it is imperative that the Court

not exclusively focus on the decisions of

various legislatures, judges and juries.

To do so is to fail to realize that this

Court serves a unique function in our

constitutional scheme. The Court,

insulated by constitutional design from

the community pressures that are inherent

in any capital murder case and partisan

politics, must decide whether children are

sufficiently morally culpable to suffer

the penalty of death. Therefore, as the

ultimate arbiter of the meaning of the

Eighth Amendment, it is essential that the

Court do more than calculate the "numbers"

provided by juries and legislatures in the

16

various states. ® Although the Court's

independent judgment is--and should be--

informed by the objective data, the

ultimate issue of the constitutionality of

a particular punishment is not compelled

by this evidence.

Furthermore, an exclusive focus upon

statutes and verdicts does not lead to a

fully informed decision in the determina-

tion of whether it is consistent with our

evolving standards of decency to execute

minors. In fact, such an approach ignores

Significant evidence criticai to an

enlightened understanding of why those

under the age of eighteen should not be

sentenced to death. To exclusively focus

on the objective indicia of societal

6 This is necessarily so. If the

Court were to simply defer to legislative

enactments and jury verdicts it would not

be exercising its own independent judg-

ment, thus making the Court's own Eighth

Amendment analysis redundant to an

examination of objective indicia.

17

standards primarily relied upon in

Thompson fails to adequately consider

germane social science evidence--the work

of health professionals, educators,

psychologists, and the like--pivotal to

the Court's exercise of its informed

judgment as to the constitutionality of

executing persons under the age of

eighteen.

II. A CONSIDERATION OF THE

MORAL BLAMEWORTHINESS OF

JUVENILES SHOULD LEAD THE COURT

TO CONCLUDE THAT NEITHER OF THE

TWO PRINCIPAL PURPOSES OF THE

DEATH PENALTY ARE MET BY THE

EXECUTION OF JUVENILES

The Court has repeatedly recognized

that the determination of whether the

death penalty is an appropriate punish-

ment--either for an individual offender or

for a particular category of offenders--is

essentially an inquiry into moral blame-

worthiness. See Booth v. Maryland, 482

U.S. , 107 S.Ct. 2529, 2533 (1987);

18

Enmund _v. Florida, 458 U.S. 782, 798

(1982).?” As was noted in Spaziano v.

Florida, 468 U.S. 447 (1984) (Stevens, J.,

concurring in part and dissenting in

part), “in the final analysis, capital

punishment rests on not a legal but an

ethical judgment--an assessment of what we

called in Enmund the ‘'moral guilt' of the

defendant." 468 U.S. at 481 (quoting

Enmund, 458 U.S. at 800-01). In Cal-

ornia v. —_ 4.6, . 167 Be CE.

337 (1987), it was noted that "the

individualized assessment of the appro-

priateness of the death penalty is a moral

inquiry into the culpability of the

7 In a number of prior decisions

the Court has held that the Eighth

Amendment forbids both barbarity and

excessiveness of punishment in relation to

the crime committed. See Coker, 433 U.S.

at 592. Excessive punishments are those

that: (1) “involve the unnecessary and

wanton infliction of pain," Gregg, 428

U.S. at 173; or (2) are "grossly out of

proportion to the severity of the crime."

Gregg, 428 U.S. at 173.

\

TO eee ae rere ee ee eee Ry

—— -— <-e . o

19

defendant.... 107 S.Ct at 840 (O'Connor,

J., concurring); see also Franklin v.

Lynaugh, ___U.S.___, 108 S.Ct. 2320, 2332

(1988) ("the principle underlying Lockett,

Eddings, and Hitchcock is that punishment

should be directly related to the personal

culpability of the criminal defendant")

(O'Connor, J., concurring). This is so

because the question of whether an

individual offender or category of

offenders receive their just deserts for a

crime can only be determined by assessing

their moral blameworthiness in light of

the legitimate constitutional purposes of

Capital punishment. See Tison v. Arizona,

_U.S._.__, 109 S.Ct. 1676, 1683 (1987).

The legitimate penological interests

that have been accepted by the Court for

capital punishment are deterrence and

retribution. Ultimately, the Eighth

Amendment issue turns on the courts’

29

independent judgment of whether the death

penalty as “applied to those in [peti-

tioners'] position measurably contributes"

to the "'two principal social purposes

[of] retribution and deterrence of capital

crimes by prospective offenders.'" Enmund

v. Florida, 458 U.S. at 798 (quoting Gregg

v. Ge la, 428 U.S. at 153). If sentenc

ing a particular offender or category of

offenders to death does not further at

least one of these two objectives, then

the death penalty cannot be imposed

consistent with the Eighth Amendment.®

Examining those goals of retribution and

deterrence in light of the lessened moral

8 "Unless the death penalty when

applied to those in [petitioners'}]

position measurably contributes to one or

both of [the two societal goals of

retribution and deterrence], it ‘is

nothing more than the purposeless and

needless imposition of pain and suffer-

ing,' and hence an_ unconstitutional

punishment." Enmund v. Florida, 458 U.S.

at 798 (quoting Coker, 433 U.S. at 592).

21

culpability of juveniles as a class, it is

clear that the Eighth Amendment proscribes

the execution of persons who were under

the age of eighteen at the time of the

commission of the crime.

A. Society's interest in retribution

is not furthered by sentencing juveniles

to death.

For society to seek retribution for a

crime, the criminal must possess a

sufficient degree of culpability or

responsibil .ty for that criminal act. In

California v. Brown, Justice O'Connor

stated:

[Djefendants who commit criminal

acts that are attributable to a

disadvantaged background, or to

emotional and mental problems,

may be less culpable than

defendants who have no- such

excuse. This emphasis’ on

culpability in sentencing

decisions has long been reflect-

ed in Anglo-American jurispru-

dence. As this Court observed

in Eddings, the common law has

struggled with the problem of

developing a capital punishment

system that is "sensible to the

uniqueness of the individual."

22

455 U.S. at 110. Lockett and

Eddings reflect the belief that

punishment should be directly

related to the personal cul-

pability of the criminal

defendant. Thus, the sentence

imposed at the penalty stage

should reflect a reasonable

moral response to the defen-

dant's background, character,

and crime rather than mere

sympathy or emotion.

107 S.Ct. at 841 (O'Connor, J., concur-

ring); see also Tison v. Arizona, 109

S.Ct. at 1683 ("[{Tj]he heart of the

retribution rationale is that a criminal

sentence must be directly related to the

personal culpability of the criminal

offender."); Booth v. Maryland, 107 S.Ct.

at 2533 (capital sentencing is essentially

an inquiry into a defendant's "personal

responsibility and moral guilt").

When assessing the culpability of

juvenile offenders, the Court has recog-

nized in various circumstances that their

"re~al guilt" is far less than that of

mature, morally responsible adult crimi-

23

nals. As Justice Stevens wrote for the

plurality in Thompson, "the Court has

already endorsed the proposition that less

culpability should attach to ae crime

committed by a juvenile than to a conm-

parable crime committed by an adult." 108

S.Ct. at 2698 (footnote omitted).% our

9 The Court has noted in a number

of decisions the lesser culpability of

juveniles. See, e.g., May v. Anderson,

345 U.S. 528, 536 (1953) ("Children have a

very special place in life which law

should reflect.") (Frankfurter, Jes

concurring); Carey v. Population Services

International, 431 U.S. 678, 693 n. 15

(1977); Bellotti v. Baird, 443 U.S. 622,

635 (1979) ("“{Mjinors often lack the

experience, perspective, and judgment" of

adults); Eddings v. Oklahoma, 455 U.S.

104, 115-116 (1982) ("Our history is

replete with laws and judicial recognition

that minors ... are less mature and

responsible than adults."); New York v.

Ferber, 458 U.S. 747, 757 (1982). For

example, the Court has noted:

The State's interest in the

welfare of its young citizens

justifies a variety of protec-

tive measures. Because he may

not foresee the consequences of

his decision, a minor may not

make an enforceable bargain. He

may not lawfully work or travel

24

society's most absolute and terrible

penalty must be reserved for those who

know a fully-developed morality and who

then transgress that morality. However,

it is excessive for individuals who, as a

result of their youth, have a morality

that is inchoate and whose culpability is

thus significantly lessened.1%4

where he pleases, or even attend

exhibitions of constitutionally

protected adult motion pictures.

Persons below a certain age may

not marry without parental

consent.

H. L. v. Matheson, 450 U.S. 398, 421-22

(1981) (Stevens, J., concurring) (quoting

Planned Parenthood of Central Missouri v.

Danforth, 428 U.S. 52, 102 (1976)

(Stevens, J., concurring in part and

dissenting in part).

10 In this regard, it is important

to note that the United States is the only

western democracy--and one of the few

nations in the world--that' presently

permits the execution of offenders who

were under the age of eighteen at the time

the crime was committed. See Brief of

Amicus Curiae Amnesty International for

Petitioner in Thompson _v. Oklahoma and

these cases.

25

As established by both the legal

limitations placed on the civil rights of

those under eighteen and social science, a

lessened degree of moral blameworthiness

is inextricably caught up in what it means

to be a juvenile. This Court has noted

that “youth is more than a chronological

fact. It is a time and condition of life

when a person may be most susceptible to

influence and to psychological damage.

Our history is replete with laws and

judicial recognition that minors ...

generally are less mature and responsible

than adults." Eddings v. Oklahoma, 455

U.S. 104, 115-16 (1982) (footnote

omitted).114 youths under eighteen years

11 see also Eddings, 455 U.S. at

115, n.11 ("“'Crimes committed by youths

may be just as harmful to victims as those

committed by older persons, but they

deserve less punishment because adoles-

cents may have less capacity to control

their conduct and to think in long-range

terms than adults. Moreover, youth crime

as such is not exclusively the offender's

26

of age face numerous legal restrictions on

the rights of citizenship granted to

others: for example, they may not vote,

they may not drink alcoholic beverages,

they may not serve on juries, they may not

drive, they may not gamble, and they may

not buy pornography. All of these

restrictions recognize the societal

consensus and common knowledge that a

lessened responsibility is a concomitant

of being young. In fact, every state has

a comprehensive and separate juvenile

justice system to deal with those of

lessened culpability. See Kent v. United

States, 383 U.S. 541, 554 n.19 (1966).

Moreover, the psychological makeup of

the young weighs against using retribution

fault; offenses by the young also repre-

sent a failure of family, school, and the

social system, which share responsibility

for the development of America's youth.'"

(quoting Twentieth Century Task Force on

Sentencing Policy Toward Young Offenders,

Confronting Youth Crime 7 (1978)).

27

as a rationale for executing them./* The

turbulence of the adolescent years, which

are generally considered to last from age

eleven at least through age eighteen, }3 is

caused by the onset of puberty and the

transition to formal, logical modes of

thinking from more reactive, concrete ways

12 "Inexperience, less education,

and less intelligence make the teenager

less able to evaluate the consequences of

his or her conduct while at the same time

he or she is much more apt to be motivated

by mere emotion or peer pressure than is

an adult." Thompson, 108 S.Ct. at 2699.

13 See Hamburg & Wortman,

Adolescent Development _and__ Psychopath-

cology, in 2 Psychiatry ch. 4 (J. Cavenar

ed. 1985). It is critical to a proper

resolution of the issue presented in these

cases to recognize that the psychological

makeup which results in the lessened moral

blameworthiness of youth often extends

beyond age eighteen into the early

twenties. Building on this recognition,

for example, many states do not permit

those under the age of twenty-one to

consume alcohol. Age eighteen, therefore,

is a conservative assessment--rather than

a liberal one--of the point at which an

individual is sufficiently culpable to be

sentenced to death.

28

of thinking.14 Adolescence is marked by

the relative absence of moral judgment and

principles that characterize the thought

patterns of adults.15 Juveniles do not

possess the experience or the grounding to

be able to formulate a holistic moral

universe, and they are dependent upon

others, especially older relatives and

friends, for moral guidance. Needless to

say, the mental and social backgrounds of

juveniles who have murdered are rarely

healthy. ?®

14 See B. Inhelder & J. Piaget, The

Growth of Logical Thinking from Childhood

to Adolescence (1958).

15 See Kohlberg & Gilligan, The

. J : . Vv

of the Self in _a_ Postconventional World,

Daedalus 1051 (Fall 1971).

16 In one study of fourteen

randomly selected juveniles under the age

of eighteen who had been sentenced to

death, all fourteen were found to have

suffered significant head injuries in

childhood, nine were found to have serious

neurological abnormalities, seven were

diagnosed as psychotic, twelve had been

29

the faculties for cold, deliberate

calculation.

In Enmund v. Florida, this Court

emphasized that capital punishment will

only serve as a deterrent when "premedita-

tion and deliberation" have preceded the

capitally-punishable crime. Enmund, 458

U.S. at 799 (quoting Fisher v. United

States, 328 U.S. 463 (1946) (Frankfurter,

J., dissenting) ). Those who murder in a

flash of rage or on a sudden impulse will

not be constrained from killing by a death

penalty that is far from their thoughts

prior to the crime. Neither will those

who have no understanding of death or who

lack the capacity to predict the conse-

severely physically abused by family

members, and five had been sodomized by

older male relatives. Lewis, Pincus,

Bard, Richardson, Prichep, Feldman and

Yeager, Neuropsychiatric, Psychoeduca-

ti } 1 Famil .) , ist i € 14

Juveniles Condemned to Death in the United

States, 14 Am. J. Psychiatry 584, 588 (1988).

30

quences of their actions be deterred.

Because it is precisely those under the

age of eighteen who are most likely to

kill under circumstances such as these,

deterrence is not a valid rationale for

executing adolescents.

Just as the changes we undergo in our

adolescent years generate a rootless moral

framework, they also- cause teenagers to

become more restless, impulsive and prone

to risk-taking.1? this impulsiveness is

due to adolescents' dawning ability to

reason in the abstract, which opens up new

possibilities of experimentation. However,

the urge to experiment is combined with a

lack of experience and an inability to

predict the possibly detrimental conse-

17 "The likelihood that the teenage

offender has made the kind of cost-benefit

analysis that attaches any weight to the

possibility of execution is so remote as

to be virtually nonexistent." Thompson,

108 S.Ct. at 2700.

31

quences of their actions. All of these

factors create in the adolescent mind a

desire to try out reckless activities,

such as fast driving, promiscuous sex, and

drug and alcohol abuse. Due to teenagers'

inexperience in predicting consequences,

their impulsiveness is generally unaccom-

panied by fear of death or personal

harm. 18

Being unafraid of death, in fact, is

integrally related to the adolescent

mindset. Studies of suicide in adoles-

cence show that teenagers often do not

comprehend that death is different or that

death could happen to them; "only old

people die." In fact, suicide is the

third leading cause of death among this

18 See Irwin & Millstein, Bio-

Behaviors, 7 J. Adolescent Health Care,

No. 6S (Nov. 1986 Supp.).

32

age group. 19 Threatening to execute

someone who is not afraid of being dead is

a futile exercise and serves no valid

penological purpose.

Finally, altheovgh it is of course

true that if a particular teenager is

executed, that particular teenager will

not have an opportunity to kill again,

specific deterrence is not ae valid

justification for executing teenagers.

Juveniles convicted of murder and incar-

cérated have been overwhelmingly shown to

be model prisoners and very rarely commit

further crimes after incarceration.?9 By

19 See Sheras, Suicide in Adoles-

cents, in Handbook of Clinical Child

Psychology 759, 769-770 (C. Walker and M.

Roberts eds. 1983); see also Kastenbaun,

Time and Death in Adolescence, in The

Meaning of Death 99 (H. Feifel ed. 1959);

Fredlund, Children and Death from the

School Setting Viewpoint, 47 J. School

Health 533 (1977).

20 See Vitello, Constitutional

Safequards for Juvenile Transfer

Procedure: The Ten Years Since Kent v.

33

definition, they are young, are capable

of rehabilitation, and may benefit from

some of the social services unavailable to

them prior to prison. However, "[{c]japital

punishment of our children inherently |

rejects humanity's future, which rests

with the habilitation and rehabilitation

of today's youth." Streib, The Eighth

Amendment and Capital Punishment _ of

Juveniles, 34 Cleve. St. L. Rev. 363, 395

(1987) (footnote omitted). Thus, a

deterrent that does not deter juveniles

should not be applied against them, as it

furthers no constitutionally valid

societal interest, and is "nothing more

than the purposeless and needless imposi-

tion of pain and suffering." Coker, 433

U.S. at 592.

United States, 26 De Paul L. Rev. 23, 32-

34 (1976).

34

CONCLUSION -

In resolving the constitutional

question presented in this case--whether

the Eighth Amendment sanctions the

imposition of the death penalty upon those

under the age of eighteen--this Court's

decision is not delimited by the actions

of various legislatures, judges and

juries. In the final analysis, this Court

must bring to bear its own judgment in

order to determine if our evolving

standards of decency permit the execution

of our children. The Court's independent

judgment is not standardless, however, but

rather is informed by examining the

intrinsic characteristics of juveniles in

light of the valid constitutional purposes

of capital punishment. Such an examina-

tion in this case reveals that the

imposition of the death penalty upon the

very young--those under the age of

35

eighteen--serves no legitimate penological

purpose and thus violates the Eighth

Amendment. Therefore, the Court should

vacate the sentences of death in these

cases and remand them for the imposition

of sentences of life imprisonment.

Respectfully submitted,

*CHARLES OGLETREE

1525 Massachusetts Avenue

Cambridge, MA 02138

(617) 495-5097

JOHN H. BLUME

P.O. Box 11311

Columbia, SC 29211

(803) 765-0650

ATTORNEYS FOR AMICI CURIAE

* Counsel of Record