# Amicus Curiae Brief — Wilkins v. Missouri

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1988
- **Citation:** 487 U.S. 1233

## Text

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oa

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1469%3A13. Public record. Not legal advice.