Amicus Curiae Brief — Roper v. Simmons

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Supreme Court, U.S |

i a

No. 03-633 ~~

jul 16 20%4

ECLERK

IN THE

Supreme Court of the United States

DONALD P. ROPER, Superintendent.

POTOSI CORRECTIONAL CENTER.

Petitioner.

Vv.

CHRISTOPHER SIMMONS.

Respondent.

On Writ of Certiorari to the

Supreme Court of Missouri

BRIEF OF THE NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION, AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

MICHAEL MELLO *

VERMONT LAW SCHOO!

P.O. Box 96, Chelsea St..

South Royalton, Vermont 05068

(802) 831-129]

JEFFREY D. ROBINSON

GLOVE TIE E. WASHINGTON

BAACH, ROBINSON & LEWIS

1201 F. St... N.W. Ste. 500

Washington, D.C. 20004-1225

(202) 659-7205

* Counsel of Record Attorneys for Amicus Curiae

A I a EL I TIE TED

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....00......c.cccccccceesseeeeseeeneees iv

INTEREST OF AMICUS CURIAE .........cccccccsseeseeeeesees l

SUMMARY OF ARGUMENT......0..........ccccccceeseeeeeeeees 2

I. THE EXECUTION OF A MINOR WHO

WAS UNDER THE AGE OF EIGHTEEN AT

THE TIME OF THE OFFENSE WOULD

VIOLATE EVOLVING STANDARDS OF

SEI: W nccecccencssnssinjuensociseninnitianeseandeeinenees 3

A. The Traditional Two-Prong Eighth

Amendment Analysis: From Gregg to

Coker to Ford to Thompson to Atkins, and

the Penry/Stanford Aberration..................... 4

B. The First Prong (Objective Indicia): In

Most States and for Most Purposes, Age

Eighteen Marks the Bright-Line Boundary

Between Childhood and Adult Respon-

eee chniniitnurttebciiinntenmnssetiniinsinaiionsanne

LES Se a ee ONS ee en ee 14

3. Other Nations: Allies in the War on

FIA SELENE RE Rae oe SO 18

(i)

TABLE OF CONTENTS—Continued

C. The Second Prong (the Court’s Independ-

ent Judgment on Deterrence and Retribu-

tion): Establishing a Bright-Line Age

Limit of 18 Years Will Not Undermine

Deterrence or Retribution, Because the

Reasons For Treating Minors Differently

From Adults Apply With Special Force

Here, Since the Developmental Differ-

ences Between Adolescents and Adults

Diminish the State’s Interest in Inflicting

the Death Penalty on Minors ...................+

1. The Law Treats Children Differently

Because Children Are Different ..............

2. Retribution and Deterrence......................

D. A Bright-Line Rule Is Appropriate Here,

Because There Is No Viable Basis for

Distinguishing Among Minors for Pur-

poses of Administration of the Death

Penalty, and Because a Bright-Line Rule

Would Best Serve the Principles of

FoR SCORES .....ccccvsscessscsscnsessessesssuneneaaannna

1. The Abostind ClGGD cccocccsccsessscdniesenanne

2. Thee Risk Of TgRG cecccccccescccceenesseeee

3. Federalism: A Bright-Line Rule is Less

Injurious to Principles of Federalism.......

CONCLUSION: “Being Able to Stay Outside and See

the Moon amd Sear... a” cccsscscssccoscesecsesnesnnnnnnnnnnnnnn

Page

iii

TABLE OF CONTENTS—Continued

APPENDIX A

enemies

APPENDIX B

Right to Serve OM Jury ..........ccccccccececesececssecseseseecesees

APPENDIX C

EES

APPENDIX D

Right to Marry Without Parental Consent...............

APPENDIX E

Consent to Most Forms of Medical Treatment

APPENDIX F

Right to Drive-Without Parental Consent

APPENDIX G

Right to Purchase Pornographic Materials...............

APPENDIX H

Right to Participate in Legalized Gambling in any

APPENDIX |

Right to Patronize Pool Halls ..............ccccecececeseeeeeeeees

APPENDIX J

Right to Pawn Property or to Sell Junk or Precious

I ceeseuonen

iV Vv

TABLE OF AUTHORITIES TABLE OF AUTHORITIES—Continued

Page Page

CASES - Stanford v. Kentucky, 492 U.S. 361

Atkins v. Virginia, 536 U.S. 304 8 20.24 Se itelatantentiiaat id 6, 7, 12, 14, 16, 18, 19, 20, 22, 27

SEES: 4,6, 7, 13, 14, 16, 18, 20, = State v. Furman, 858 P.2d 1092 (Wash. 1993)...... 12

Bellotti v. Baird, 443 U.S. 622 (1979) ..vsessevensee 24, Tennard v. Dretke, No. 02-20038, 542US.

Carey v. Population Services International, 431 ; (U.S. June 24, Seem rae 17.

U.S. 678 (1977) ....eccccccecseeceesenencensnnnnensensnnnsnnanees Thompson v. Oklahoma, 487 U.S. 815 1989)... j

Coker v. Georgia, 433 U.S. 384 (197M) renee — Trop v. Dulles, 356 U.S. 86 (1958)...... ae 4,5

Enmund v. Florida, 458 U.S. 782 (1982) ...-.--- ee Yarborough v. Alverado, No. 02-1684, 542 US,

Ford v. Wainwright, 477 U.S. 399 (1986)... .- —_, 72 U.S.L.W. (U.S. June 1, 2004)............ 25

Furman vy. Georgia, 408 U.S. 238 (1972) ......-+-+++ 14, ,

Ginsberg v. New York, 390 U.S. 629 (1968)......... m4 TATUTES

Gregg v. Georgia, 428 U.S. 153 (1976)... 4, +~ 50 U.S.C.S. app. § 454(a), (c) (2004)... 8

HL. v. Matheson, 450 U.S. 398 (1981).......-000000 ’ H.B. 374, 1999 Leg. Sess., 1999 Montana Laws . 12

Hamdi v. Rumsfeld, No. 03-66%, $42 US.__ Kan. Crim. Code Ann. § 21-4622 (Vernon 2001)... 12

U.S. June 28, 2004) .......cccccccccceeeeeeeeeeennenneneeennns N.Y. Crim Proc. Law § 400.27 McKj ;

amine v. Pennsylvania, 403 U.S. 528 (1971) ‘ 1 S. 426, 112th Leg., “a iva, tee evans -

Miller El v. Dretke, No. 03-9659 (certiorari South Dakota 2004 Session Laws, $.B. 182... 12

ted, June 28, 2004)..........ccceccceeeeeereesernsenenes Wyoming 2004 Session Laws. Ch. 29 (HB. 5).

sane Soneay v. TL.O., 469 U.S. 325 (1985).......-... ; LE o ( ua

New York v. Ferber, 458 U.S. 747 (1982)........-+++ GISLATIVE MATERIALS

Parham v. JR... 422 U.S. 584 (1979) pocccoccosoooosoososs ‘ = 134 Cong. Rec.-House 1108 (Oct. 21, 1988)

Penry v. Lynaugh, 492 U.S. 302 (1989).......-6, 14, 16, (codified at 21 U.S.C. §848(1) (2003)... 12

People v. LeVallee, No. 71, ___ N.Y. ___ (June - 18 U.S.C. §2591(a)(2)(D) ..ccseecccscsescsesseseeeeosess...... 12

ORR SRE I aOR: nn Establishing Constitutional Procedures gg tig

Planned Parenthood of Central Missowi v. | Imposition of Capital Punishment: Report of

Danforth, 428 U.S. 52 (1976). ......ceceeeeeeeenenerenes the Committee on the J udiciary, 99th Cong.,

Planned Parenthood v. Casey, 505 U.S. 833 - emt. nce agg RT TOD Re 12

DODD. ...ncccccoceccocessecesessssssssassosssssensnsncsssssessssessenss House Rep. No. 92-37. 92d C “

Pn 7 Massachusetts, 321 U.S. 158 (1944)... 23 (1971)... ee ne eR Ba spendin ace ; 12

Rasul v. Bush, No. 03-334, 542 U.S. ____ (U.S. 19 Lowering the Voting Age to 18: Hearings Before

June 28, 2004)..........-ccccecececceeeeesereneesnnnessnnnnnennes 7 the Subcomm. on Constitutional Amendments

Schall v. Martin, 467 U.S. 253 (1984). ..0. -o-eceeeeeee "os of the Senate Committee on the Judiciary, 91st

Skipper v. South Carolina, 476 U.S. 1 (1986)...... Cong., 2d Sess. (1970) ..ccccccceeseeossseeeeen x

Spaziano v. Florida, 468 U.S. 447 (1984)... Sen. Rep. No. 92-26, 92d Cong., Ist Sess. (1971)... 12

TABLE OF AUTHORITIES—Continued

PERIODICALS

Barrick, Daniel, Benson to Veto Raising

Minimum Death Penalty Age, Valley News

V0.2, Agel 34, BOBS q.....ccccccsccscesccssesssccssccssnsssese

Coyle, Marcia, Death Row Inmate Back at High

Court: Is 5th Circuit Defying a Supreme Court

Ruling?, NATIONAL L.J. June 21, 2004 .............

Feld, Barry, Competence, Culpability and

Punishment: Implications of Atkins for

Executing and Sentencing Adolescents, 32

HorstTrRA L. REV. 463 (forthcoming 2004)... 6, 14, 22, 26

Gillers, Stephen, Deciding Who Dies, 129 U. Pa.

BR GS yy

Mello, Michael “Jn the Years When Murder

Wore the Mask of Law”: Diary of a Capital

Appeals Lawyer, 24 VT. L. REV. 583 (2000).....

Mello, Michael, Friendly Fire: Privacy vs.

Security After September 11, 38 CRIM. L.

0 xx

Note, Juvenile Curfew Ordinances and the

Constitution, 76 Mich. L. Rev. 109 (1977) .......

Saharsky, Nicole, Comment, Consistency as a

Constitutional Value: A Comparative Look at

Age in Abortion and Death Penalty

Jurisprudence, 85 MINN. L. REV 1119 (2001)...

Saunders, Anne, AP, NH Senate Favors State

Ban on Executing Minors, Valley News [Vt.],

8 Le

Verhouek, Sam, Texas Legislator Proposes the

Death Penalty for Murderers as Young as 11,

N.Y. Times, April 18, 1998 ............:ccccscesseeeneeees

Wallis, Claudia Secrets of the Teen Brain, TIME,

vii

TABLE OF AUTHORITIES—Continued

Wilson, Mark, Convicted Sniper Lee Boyd Malvo

Sentenced to Life, USA Today, March 10,

oe einrinciciiecriciiniiniiainiatiaiiasinysstipes tinted

BOOKS AND OTHER MATERIALS

Amnesty International, Juveniles: The Death

Penalty Gives Up On Juvenile Offenders

(July 28, 2003), at http://www.amnestyusa.org/

ee crnicsssisissrcsiniiitainiitanatininiamssasitiiass

BARTOLLAS, CLEMENS, JUVENILE DELINQUENCY

Sree icieiireieieniciiadeanticneseabitahtmaninncnaitlaiieistias et ceantiaiaie

BERNS, WALTER, FOR CAPITAL PUNISHMENT

ee iccesnssnsienesienenctatiniremintaninitanmsiasiatiiiealies ttatitiiee

Institute of Judicial Administration/American

Bar Association, Standards Relating to

Transfer Between Courts, at Standard § 1.1A

and Commentary (1980) .............ccccccccccsseesceeeeeee

Institute of Judicial Administration/American

Bar Association, Juvenile Justice Standards,

Standards Relating to Juvenile Delinquency

and Sanctions, Standard 2.1 and Commentary

Institute of Juvenile Administration/American

Bar Association, Juvenile Justice Standards,

Standards Relating to Transfer Between

I er cad A

LEHR, DICK AND ZUCKOFF, MITCHELL,

JUDGMENT RIDGE: THE TRUE STORY BEHIND

THE DARTMOUTH MURDERS (2004)............000000.

MELLO, MICHAEL DEATHWORK (2002) ..............0..

National Conference of Commissioners on

Uniform State Laws, Uniform Juvenile Court

Act of 1968, § 2.1(1) (1979)..........cccccscsesseceeseees

Page

Vili

TABLE OF AUTHORITIES—Continued

Streib, Victor The Juvenile Death Penalty

Today: Death Sentences and Executions

for Juvenile Crimes, Jan. 1, 1973-April

30, 2004, available at http://www.law.onu.

Page

GED exccccecocsersnsesenneesonsvestonse 13, 14, 15, 16, 17, 18, 26, 27

Twentieth Century Fund Task Force on

Sentencing Policy Toward Young Offenders,

Confronting Youth Crime (1978).......:00000000008+

United States Department of Health, Education

and Welfare, Welfare Administration,

Children’s Bureau, Standards For Juvenile and

Family Courts (1966)...........ccscccseseersesseeeneersees

United States Department of Justice, National

Institute for Juvenile Justice and Delinquency

Prevention, Working Papers of the National

Task Force to Develop Standards and Goals

for Juvenile Justice and Delinquency Pre-

vention, Jurisdiction-Delinquency, vol. IV, at

IN THE

Supreme Court of the United States

No. 03-633

DONALD P. RoPER, Superintendent,

POTOSI! CORRECTIONAL CENTER,

Petitioner,

Vv.

CHRISTOPHER SIMMONS,

Respondent.

On Writ of Certiorari to the

Supreme Court of Missouri

BRIEF OF THE NATIONAL LEGAL AID AND

DEFENDER ASSOCIATION, AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE '

The National Legal Aid and Defender Association

(NLADA), a nonprofit corporation, works to support indigent

defender services and civil legal assistance to those who

cannot afford lawyers. Through its Defender Legal Services

division, NLADA provides training, information, and tech-

' Amicus files this brief with the consent of all parties. Letters of

consent have been lodged with the Clerk of the Court. No counsel for a

party authored this brief in whole or in part. No person or entity, other

than amicus, its members, or its counsel made a monetary contribution for

the preparation or submission of this brief.

nical assistance to public defender offices and others who

provide legal services to indigent criminal defendants.

NLADA’s American Council of Chief Defenders is a leader-

ship council that is dedicated to promoting fair justice

systems and ensuring that citizens who are accused of crimes

have adequate legal representation. NLADA has approxi-

mately 680 program members, representing 12,000 lawyers,

including nonprofit organizations, government agencies, legal

aid organizations, and law firms; NLADA also has approxi-

mately 1,000 individual members.

NLADA traces its roots to the National Alliance of Legal

Aid Societies, which was formed by 15 legal aid societies in

1911. It is the oldest and largest national nonprofit member-

ship association that devotes its resources exclusively to

serving the equal justice community.

NLADA is a leading voice in public policy debates on

equal justice issues. In pursuit of its efforts, NUADA has filed

amicus curiae briefs in major constitutional cases before this

Court that involve the administration of the criminal justice

system. For example, NLADA filed an amicus brief in

Thompson v. Oklahoma, 487 U.S. 816, 839 n.* (1988)

(mentioning NLADA brief). Undersigned counsel represented

NLADA on the Thompson amicus brief.

SUMMARY OF ARGUMENT

This is a brief about line-drawing.

We begin with the premise—accepted by the plurality,

concurrence, and dissent in Thompson v. Oklahoma—that

there is “some age below which a juvenile’s crimes can never

constitutionally be punished by death.” Thompson v. Oklaho-

ma, 487 U.S. 815, 848 (1988) (concurring opinion); id at 828-

29 (plurality opinion); id. at 872 (dissenting opinion).

This case presents the question invited by such an assump-

tion: At what age does our culture set the line? The answer is

age 18. Throughout the American legal system, age 18 is the

recognized dividing line between adult responsibilities and

childhood. Eighteen is the only principled line here as well.

Age 18 is the only principled line the Court can draw here.

In most states and for most purposes, minority status—

defined as lower than age 18—confers a host of legal

disabilities. These legal disabilities are powerful objective

indicia that in this country age 18 is the line separating child-

hood from adulthood. Minors are treated differently because

minors are different. The diverse legal disabilities imposed

upon minors are bottomed on the common sense and empiri-

cally supported notion that minors lack maturity, judgment,

impulse control and experience. Nineteen states now bar the

execution of juvenile offenders, and 12 additional states and

D.C. bar executions altogether.

Any other line would be arbitrary—-and arbitrariness is

antithetical to the eighth amendment.

ARGUMENT

I. THE EXECUTION OF A MINOR WHO WAS

UNDER THE AGE OF EIGHTEEN AT THE

TIME OF THE OFFENSE WOULD VIOLATE

EVOLVING STANDARDS OF DECENCY

The Court made clear in Thompson that some minimum

age of susceptibility to the punishment of death must be

recognized by a constitutional guarantee that brings to bear

evolving standards of decency in fixing the outer boundaries

of that criminal sanction. Thompson, 487 U.S. at 828-29

(plurality); id. at 848 (concurrence); id. at 872 (dissent). The

problem, here as elsewhere in the evolution of constitutional

y resides in drawing the line. Shall it be 10, 11,7 12, 15, 18,

0, 21?

* This is not a hypothetical. See Sam Verhouek, Texas Legislator

Proposes the Death Penalty for Murderers as Young as 11, N.Y. Times,

April 18, 1998.

The inevitability of the difficult task of linedrawing is

endemic to a Constitution that has chosen not to leave it to the

vagaries of isolated juries and trial judges to determine

exclusively and irremediably the state of our national con-

science. If a constitutional line exists here—and Thompson

shows that it does—the appropriate place to draw it is at least

far clearer in relation to the present subject than in many

constitutional areas. The overwhelming concentration of

the relevant indicators fix age 18 as the line of full adult

responsibility with a clarity that is not merely convenient but

compelling when the gravest penal sanction of a society is

sought to be exacted of its youth.

A. The Traditional Two-Prong Eighth Amend-

ment Analysis: From Gregg to Coker to Ford to

Thompson to Atkins, and the Penry/Stanford

Aberration

The cruel and unusual punishments clause of the eighth

amendment “must draw its meaning from the evolving

standards of decency that mark the progress of a maturing

society.” Atkins v. Virginia, 536 U.S. 304, 311-12 (2002)

(quoting 7rop v. Dulles 356 U.S. 86, 101 (1958)). “The basic

concept under lying the eighth amendment is nothing less

than the dignity of man.” Atkins, id. (quoting Trop, supra).

Standards of decency evolve and should be “judged not by the

standards that prevailed in 1685 when Lord Jeffreys presided

over the ‘Bloody Assizes’ or when the Bill of Rights was

adopted, but rather by those that currently prevail.” Atkins,

536 U.S. at 311.

A claim that capital punishment is unconstitutionally

excessive—as applied to a category of crimes or to a category

of criminals—has traditionally been tested against a two-

prong analysis. The Court’s traditional substantive eighth

amendment jurisprudence has its genesis in the landmark

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

Court held capital punishment was not cruel and unusual

punishment as applied to the crime of aggravated murder.

In providing analytical content to the facially vague phrase

“the evolving standards of decency that mark the progress of a

maturing society,” the Court in Gregg crafted a two-prong

test. The first prong was an attempt to identify the objective

indicia that reflect the public attitude toward a given sanction.

These objective indicia involved examining societal values as

reflected in legislative enactments and jury decisions.

The second prong of Gregg’s proportionality analysis was

subjective. It required the Justices to apply their independent

judgment to determine whether the punishment at issue

served the legitimate goals of punishment—principally deter-

rence and retribution. /d. at 183.

One year after Gregg, the Court applied the same two-

prong test to the crime of rape. In Coker v. Georgia, 433 U.S.

584 (1977), the Court reaffirmed that objective indicia such as

legislative enactments and jury verdicts were the beginning of

proportionality analysis, but they were not the end: “The

Constitution contemplates that in the end our own [the

Court’s] judgment will be brought to bear on the question of

the death penalty under the eighth amendment.” /d. at 597:

accord Gregg, 428 U.S. at 182-83. Hence the importance of

the second prong of Gregg’s traditional analysis. Accord

Enmund v. Florida, 458 U.S. 782, 799 (1982) (applying two-

prong test to crime of felony murder); Ford v. Wainwright,

477 U.S. 399 (1986) (applying two-part test to executing

the insane.)

When the Court first addressed the issue of capital

punishment for juvenile offenders, the lead opinion applied

the traditional two-prong test first articulated in Gregg.

Thompson v. Oklahoma, 487 U.S. 815, 836 (1988). Then, in

twin cases decided in 1989, the Court seemed to dramatically

constrict the first prong of the traditional two-part analysis,

and the Court appeared to delete the second prong altogether.

Stanford v. Kentucky, 492 U.S. 361 (1989) (juvenile offend-

ers); Penry v. Lynaugh, 492 U.S. 302 (1989) (mentally re-

tarded offenders).

Two years ago the Court returned to its traditional two-

prong analysis. In Atkins v. Virginia, 536 U.S. 304 (2002), the

Court revisited the issue of capital punishment for the

mentally retarded and overruled Penry. Atkins’s analysis more

closely resembles that in Thompson, Gregg, Coker, Enmund,

and Ford, than that in Stanford and Penry. The Atkins Court

first looked at the objective evidence of legislative intent

provided by state legislation barring the death penalty. Then it

undertook an independent examination of whether the

imposition of the death penalty on the mentally retarded

constitutes cruel and unusual punishment under today’s

evolving standards of decency. /d. at 313.

We believe that the traditional two-prong analysis—

employed from Gregg to Coker to Enmund to Ford to

Thompson, and reaffirmed in Atkins—is correct. Penry and

Stanford were anomalies. Applying the traditional test to

mental retardation, the Court overruled Penry. Applying the

traditional test to the juvenile death penalty, the Court should

overrule Stanford.’

B. The First Prong (Objective Indicia): In Most

States and for Most Purposes, Age Eighteen

Marks the Bright-Line Boundary Between

Childhood and Adult Responsibilities

Throughout the American legal system, age 18 is recog-

nized as the dividing line between adult responsibility and

childhood. This bright line is reflected in objective indicia

> See generally In re Stanford, 536 U.S. 304 (2002) (Stevens, J., joined

by Breyer, Ginsburg and Souter, J.J.) (opinion respecting denial of certio-

rari); Barry Feld, Competence, Culpability and Punishment: Implications

of Atkins for Executing and Sentencing Adolescents, 32 HOFSTRA L. REV.

463 (forthcoming 2004).

such as the enactments of legislatures, the actual behavior

of capital juries, the opinions of respected professional

organizations, and the norms of international conduct. E.g.,

Thompson, supra, Atkins, supra; but see Stanford, supra.

Linedrawing here should be “informed by objective factors to

the maximum possible extent.” Arkins, 536 U.S. at 312:

Coker, 433 U.S. at 592.

The laws and policies discussed in this section reflect an

almost universal judgment that minors ought to be treated

differently from adults. Generally, there are no exceptions to

that judgment. Public officials do not consider requests by

especially mature minors to allow them to vote, serve as

jurors, or drink alcoholic beverages. As a society, we treat

those under age 18 as categorically different from adults.

These lines reflect clear distinctions between children and

adults, distinctions that require the Court to draw the line at

age 18 for the imposition of the death penalty.

1. Legislative Enactments

Stanford only considered a single type of legislative

enactments: statutes addressing the narrow issue of execution

eligibility for juvenile offenders. By contrast, Thompson

considered the full spectrum of statutes demarking the line

between adulthood and childhood. We believe that the

inclusive approach of Thompson is correct.

The “law has generally regarded minors as having a lesser

capability for making important decisions,” Carey v. Popula-

tion Services International, 431 U.S. 678, 693 n.15 (1977),

and “recognizes a host of distinctions between the rights and

duties of children and those of adults.” New Jersey v. T.L.O.,

469 U.S. 325, 350 n.2 (1985) (Powell, J., concurring). Be-

cause of these distinctions, the Court has “sustained legisla-

tion aimed at protecting the physical and emotional well-

being of youth even when the laws have operated in the

sensitive area of constitutionally protected rights.” New York

v. Ferber, 458 U.S. 747, 757 (1982). 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 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., dissenting)).

As the plurality observed in Thompson, “[i]t would be

ironic if these assumptions that we so readily make about

children as a class—about their inherent difference from

adults in their capacity as agents, as choosers, as shapers of

their own lives—were suddenly unavailable in determining

whether it is cruel and unusual to treat children the same as

adults for purposes of inflicting capital punishment.”

Thompson, 487 U.S. at 825 n.23 (plurality).

Minority status means younger than age 18. Eighteen years

is the line selected by Congress and the states in their

enactment and ratification of the twenty-sixth amendment to

the Constitution governing voting age. Following extensive

hearings. both state and federal legislatures agreed to give

constitutional significance to age 18 as the time when young

people should first be permitted to participate in the

most basic civic responsibility of adults in a democracy.

See Lowering the Voting Age to 18: Hearings Before the

Subcomm. on Constitutional Amendments of the Senate

Committee on the Judiciary, 91st Cong., 2d Sess. (1970); Sen.

Rep. No. 92-26, 92d Cong., Ist Sess. (1971); House Rep. No.

92-37, 92d Cong., Ist Sess. (1971). Eighteen also is the

minimum age at which a citizen may be drafted into the

armed services as well as the minimum age at which a

person may enlist without parental consent. 50 U.S.C.S. app.

§ 454(a), (c) (2004 ).

As the plurality noted in Thompson, 487 U.S. at 839-848

(Appendices A-F), in most states and for most purposes, a

“minor” means one below age 18:

@ All states and DC set the age of majority at age 18 or

older. Forty-six jurisdictions set age 18 as the age of

majority; two jurisdictions set the age at 21, two set it

at 19, and one does not set a uniform age of majority.

See Appendix A (collecting current statutes).

@ In no jurisdiction may anyone below the age of 18

serve on a jury. Forty-seven jurisdictions require ju-

rors to be 18 years or older, two require jurors to be at

least 19 years and two require jurors to be at least 21.

See Appendix B (collecting current statutes).

® No jurisdiction has lowered its voting age below 18.

See Appendix C (collecting current statutes).

@ All jurisdictions but four require unemancipated

minors to be 18 years old to marry without parental

consent. In one jurisdiction, the minimum age is 19; in

two states the minimum age is 16; in another jurisdic-

tion, females may marry at age 15 without parental

consent. See Appendix D (collecting current statutes).

® Thirty-two jurisdictions establish 18 as the age of

consent ‘ most forms of non-emergency medical

treatment, one state sets the age at 21, one jurisdiction

puts the age at 17, two jurisdictions put the age at 16,

two set the age at 14, two permit treatment if the

minor is able to understand the decision, and eight

jurisdictions have no legislation in this area. See

Appendix E (collecting current statutes).

©@ Forty-one jurisdictions require a person to be age 18 to

receive a driver’s license without parental consent;

two jurisdictions set the age at 17, while eight set it at

16. See Appendix F (collecting current statutes).

purchase pornographic materials; four jurisdictions

set the age at 17, one jurisdiction sets it at 16, and

one jurisdiction has no legislation in this area. See

Appendix G (collecting current statutes).

®@ No jurisdiction allows legalized gambling by people

younger than age 18. Of the forty-eight jurisdictions

which permit legalized gambling, 42 set the minimum

age at 18, five set it at 21, one sets it at 19. See

Appendix H (collecting current statutes).

@ Of the sixteen jurisdictions which have in recent years

set a minimum age for admission to pool halls, twelve

states put the age at 18, three set the age at 16, and

one puts it at 19. See Appendix I (collecting current

statutes).

@ Of the twenty-nine jurisdictions which have in recent

years set a minimum age for the right to pawn

property or to sell to junk or precious metal dealers,

twenty-five set the age at 18, while three set the age

at 16, and one at age 19. See Appendix J (collecting

current statutes).

@ Many localities have juvenile curfew ordinances. The

“most common upper age limit” is 18. See Note,

Juvenile Curfew Ordinances and the Constitution, 76

Mich. L. Rev. 109, 140 (1977).

Contemporary legislative attitudes toward minors are

reflected further in the development of juvenile justice

systems. “Juvenile courts exist because Americans admit

to a fundamental difference between children and adults.”

See Institute of Juvenile Administration/American Bar

Association, Juvenile Justice Standards, Standards Relating to

Transfer Between Courts 1 (1980). Every state has a

comprehensive juvenile court system, the principal purpose of

which is to rehabilitate and the premise of which is that

minors are not fully responsible for their offenses and

therefore should be treated more benignly than their adult

counterparts. See McKeiver v. Pennsylvania, 403 U.S. 528

$51-52 (1971) (White J., concurring). eae

Most model standards reflect the jud

majority of jurisdictions which set a care ahs oe

juvenile courts. See United States Department of Health,

Education and Welfare, Welfare Administration, Children’s

Bureau, Standards For Juvenile and Family Courts 36 (1966)

(Successful experience in these courts over many years has

established the soundness of this age level [18 years] of

Jurisdiction ); National Conference of Commissioners on

Uniform State Laws, Uniform Juvenile Court Act of 1968

§ 2.1(i) (1979) (18 years); United States Department of le

tice, National Institute for Juvenile Justice and Delinquency

Prevention, Working Papers of the National Task Force to

Develop Standards and Goals for Juvenile Justice and Delin-

quency Prevention, Jurisdiction-Delinquency, vol. IV, at 10-

11 (1977) (18 years); Institute of Judicial Administration/

American Bar Association, Standards Relating to Transfer

Between Courts, at Standard § 1.1A and Commentary (1980)

(18 years); Institute of Judicial Administration/ American Bar

Association, Juvenile Justice Standards, Standards Relating to

Juvenile Delinquency and Sanctions, Standard 2.1 and

Commentary (1980) (18 years); Twentieth Century Fund Task

Force on Sentencing Policy Toward Young Offenders,

Confronting Youth Crime 9 (1978) (18 years).

As to capital punishment specifically, the legislati

' ive mes-

Sage supports the notion that if an age must be chosen,

cighteen is the only principled line. Congress—our national

legislature—consistently sets age 18 as the minimum age for

execution eligibility. The federal death penalty legislation

— in the Anti-Drug Abuse Act provides

a sentence of death “shall not be carried out upon a

person who is under 18 years of age at the time the crime was

committed.” 134 Cong. Rec.-House 1108 (Oct. 21, 1988)

(codified at 21 U.S.C. §848(1) (2003)). When federal death

penalty legislation was proposed in 1986, no minimum age

was specified. An amendment to the bill, setting 18 as the

minimum age, passed without recorded disagreement. See

Establishing Constitutional Procedures for the Imposition of

Capital Punishment: Report of the Committee on the Judici-

ary, 99th Cong., 2d Sess. 30 (1986). In 1994, Congress en-

acted the Federal Death Penalty Law, adding 50 new federal

capital offenses. Again, the minimum age selected by our

national legislature was age 18. 18 U.S.C. §2591(a)(2)(D).

At the state level, protection for minors under death penalty

statutes has increased dramatically in the past quarter century.

A 1961 Associated Press survey of legal possibilities in

criminal proceedings involving juveniles showed a much

harsher legal environment. See New York Times, Jan. 7,

1962, at 81, col. 1. Of forty-one death penalty states at that

time, the minimum age for the death penalty was age 7 in

sixteen states, age 8 in three states, age 10 in three states and

ages 12 to 18 in nineteen states. /d. Even at the time of

Stanford in 1989, 11 states banned the juvenile death penalty.

Since Stanford, seven additional states have set the mini-

mum age for execution eligibility at 18 years old. Four did so

by statute. See South Dakota 2004 Session Laws, S.B. 182

(approved March 3, 2004); Wyoming 2004 Session Laws, ch.

29 (H.B. 5) (approved March 3, 2004); S. 426, 112th Leg.,

Reg. Sess., Indiana Laws; H.B. 374, 1999 Leg. Sess., 1999

Montana Laws. Two states did so by newly reinstating capital

punishment, but only for those offenders who were at least 18

years old. See Kan. Crim. Code Ann. § 21-4622 (Vernon

2001); N.Y. Crim Proc. Law § 400.27 (McKinney 2002). One

state supreme court held that its capital statute cannot be

construed to allow imposition of the juvenile death penalty.

See State v. Furman, 858 P.2d 1092, 1102-03 (Wash. 1993).

Thus, of the 38* death penalty states in the United States, a

total of 18 states require a minimum age of 18 for capital

punishment. Add the federal civilian and military death

penalty statutes, and the number rises to 20—one jurisdiction

more than the 18 states Atkins identified as prohibiting

execution of the mentally retarded. Atkins, supra at 314-15. If

the 12 states and D.C. that bar capital punishment altogether

are included, the combined total becomes 30 states that bar

juvenile execution—the same number as the 30 states that

prohibited execution of the mentally retarded at the time

Atkins was decided. See Victor Streib, The Juvenile Death

Penalty Today: Death Sentences and Executions for Juvenile

Crimes, Jan. 1, 1973-April 30, 2004, available at http://www.

law.onu.edu (last visited July 7, 2004) [hereinafter “Streib”).°

On March 3, 2004, Governors Mike Rounds of South

Dakota and Dave Freundenthal of Wyoming signed into state

law bipartisan legislation banning the execution of those who

were under age 18 at the time of their crimes. On February 19,

2004, in a state still traumatized by the brutal murders of two

Dartmouth College professors, see generally Dick LEHR AND

MITCHELL ZUCKOFF, JUDGMENT RIDGE: THE TRUE STORY

BEHIND THE DARTMOUTH MURDERS (2004), the New Hamp-

shire Senate voted that the state should not execute offenders

younger than age 18. See Anne Saunders, AP, NH Senate

Favors State Ban on Executing Minors, Valley News [Vt.],

Feb. 20, 2004. On April 23, 2004, the New Hampshire House

followed suit. See Daniel Barrick, Benson to Veto Raising

* New York’s highest court recently declared that state’s capital statute

unconstitutional based on the New York constitution. See People v.

LeVallee,No.71, = N.Y.___ (June 24, 2004).

* Professor Streib counts Missouri as an age-18 state, based on the

lower court’s decision in this case. We do not count Missouri. For us, the

purpose of this state nose-counting is to demonstrate that state legislatures

have set age 18 at the line separating childhood from adulthood. The

minimum age in Missouri was set by a state supreme court interpreting the

Minimum Death Penalty Age, Valley News [Vt.], April 24,

2004. The governor vetoed. Many other states have consid-

ered similar bills. See Feld, supra.

Further, as was the case with Askins, the legislative change

has all been in one direction: raising the minimum age for

execution eligibility. No state since Stanford has lowered the

age from 18 to 17 or 16, even though Stanford empowered

states to do so. To the contrary, the minimum age has either

stayed the same or been raised. Streib, supra. The only two

states to reinstate capital punishment since Stanford set 18 as

the minimum age. /d.

In any event, statutes authorizing the death penalty for

minors are not determinative. The legislatures that permit

execution for crimes committed by minors do not deem those

same minors sufficiently mature to vote, sit on a jury or

engage in a wide variety of adult activities. See Appendices

A-J. Further, as we will now show, capital statutes authoriz-

ing the death penalty for minors have led to only a minuscule

number of juvenile death sentences and actual executions. In

sum, death penalty legislation alone cannot reveal society’s

evolving standards of decency. Accord Thompson, supra;

Atkins, supra; but cf. Stanford, supra; Penry, supra.

2. Jury Determinations and Actual Executions

In addition to legislative enactments, the “second societal

factor the Court has examined in determining the acceptabil-

ity of capital punishment to the American sensibility is the

behavior of juries.” Thompson, 487 U.S. at 831 (plurality);

accord Atkins, 536 U.S. at 316. In the three decades since

Furman vy. Georgia, 408 U.S. 238 (1972), the Court has

consistently looked to the pattern of jury verdicts in support

of a conclusion about the death penalty’s constitutionality,

either generally or for particular crimes or offenders.

Thus, the Court, while considering legislation as one meas-

ure of society’s evolving standards of decency, still looks

beyond those indicators to learn whether they are accurate.

There is a good reason to do so:

Each lawmaker confronts capital punishment abstractly. No

life depends on her vote. Legislative response tells us the

degree to which we are willing to have laws permitting

execution, but sentencing and execution tell us the degree to

which we are willing to carry them out. A statute, further-

more, is static. It remains until changed. As public opinion

shifts, older statutes become less reliable indicators of current

values. Forces influence legislators that do not affect jurors. A

legislator may believe, for example, that death penalty propo-

nents in his constituency are more likely than its opponents to

be single- issue voters or are more likely to organize against

him, if he opposes capital punishment, than will opponents if

he supports it. A constituency’s willingness to vote based on a

single issue and its degree of organization likely influence a

lawmaker’s decision and may skew the degree to which

the pattern of legislation reflects community sentiment. Of

course, legislative action may accurately reflect community

sentiment on the acceptability of the death penalty, either

generally or in classes of cases. But without a pattern of jury

response, we cannot know whether this is true or whether,

instead, various political factors have combined to obscure

the community view. The jury, because it is so directly

involved, is needed to avoid guessing wrong.

Stephen Gillers, Deciding Who Dies, 129 U. Pa. L. REv. 1,

72-73 (1980).

A total of 227 juvenile death sentences have been imposed

since 1973, only three percent of the approximately 7,445

death sentences imposed for offenders of all ages. See Streib,

supra at 8. Of these 227 juvenile death sentences imposed in

the modern era, only 72 remain currently in force. /d. For the

155 juvenile death sentences finally resolved either by

reversal or execution, the reversal rate is 86% (133 of 155).

Id. Only 14% (22 of 155) resulted in execution. /d.

Since 2000, the juvenile death sentencing rate appears to

have- declined significantly. Seven such sentences were

imposed annually in 2000 and 2001—half the typical rate in

the preceding six years. /d. In 2002, only four juvenile death

sentences were imposed. /d. Only two such sentences were

imposed in 2003, and only one was imposed in the first five

months of 2004. /d.

In short, capital juries rarely sentence juvenile offenders to

death. Actual juvenile executions have become rarer still. In

Atkins, this Court found persuasive the fact that execution of

the mentally retarded had become truly unusual. Many states

that nominally had the death penalty on their books no longer

imposed it at all or had never imposed it on a mentally

retarded person, and only a total of five persons known to be

mentally retarded had been executed in the United States in

the thirteen years following the Court’s decision in Penry. See

Atkins, 536 U.S. at 316.

The practice of executing those under 18 has become

similarly uncommon today. Although twenty-two states theo-

retically permit the death penalty for juveniles, only six

(Missouri, Texas, Virginia, Georgia, Oklahoma, and Louisi-

ana) have actually executed a juvenile offender since Stanford

was decided fifteen years ago. Streib, supra, at 3-4. Of these

six states, only three have executed juvenile offenders since

1993—Texas, Virginia, and Oklahoma. /d. at 4. Louisiana

last executed a juvenile offender in 1990, Georgia in 1993. /d.

at 3. Missouri executed Frederick Lashley in 1993. That is the

only officially recorded execution of a juvenile offender in

Missouri since the state took over executions from Missouri’s

counties in 1937.

Perhaps most telling is that, while at least 366 juvenile

offenders have been executed in this country since 1642

(when the first juvenile offender execution occurred), only

twenty-two of the 366 were carried out during the current era

(1973-2004). Jd Of these twenty-two executions, Texas,

Virginia, and Oklahoma together account for eighty-one

percent of the juvenile executions; Texas alone accounted for

59 percent.° /d. at 5. Although Alabama, Arizona, Arkansas,

Delaware, Idaho, Kentucky, Mississippi, Nevada, Pennsyl-

vania, South Dakota, Utah, and Wyoming all theoretically

permit the death penalty for 16-year-olds, and while Florida,

New Hampshire, and North Carolina theoretically permit it

for 17-year-olds, none of these states has executed a juvenile

since the death penalty was re-established in 1976. /d. at 3-4,

6. All but South Dakota and New Hampshire, however, have

executed other offenders during that period. Indeed, even

where juries have imposed a death sentence on a juvenile

since the reinstatement of the death penalty in 1976, its

application has consistently been reversed by the courts on a

variety of grounds, making South Carolina the only other state

(other than Texas, Louisiana, Missouri, Georgia, Virginia,

e ~ nai to carry out a juvenile execution since 1976.

. at 5.

* Texas and Virginia ought not be allowed to skew the Court’s survey

of our national standards of decency. The Court should treat Texas and

Virginia as social scientists would treat outliers in a statistical analysis—

Statisticians always clip the outliers. Federal constitutional law in this area

should be broad and non-regional.

Further the Texas and Virginia execution rates should be clipped

statistically, because both states have particularly dysfunctional systems of

capital punishment. Both states grossly underfund capital defense at both

the trial and appellate level. Neither the Virginia Supreme Court nor the

Texas Court of Criminal Appeals provide meaningful state appellate court

review. Neither the Fifth Circuit not the Fourth Circuit provide meaningful

federal habeas appellate review. Cf Tennard v. Dretke, No. 02-20038,

542 US. ___, (U.S. June 24, 2004) (sharply-worded reversal of Fifth

Circuit); Banks v. Dretke, No. 02-8286, 542 U.S. __, 72 U.S.L.W. 4193

(U.S. Feb. 24, 2004) (same); Marcia Coyle, Death Row Inmate Back at

High Court: Ils 5th Circuit Defying a Supreme Court Ruling?, National

L.J., June 21, 2004 (discussing Miller El v. Dretke, No. 03-9659

(certiorari granted, June 28, 2004); Michael Mello, Friendly Fire: Privacy

vs. Security After September 11, 38 Crim. L. Bull. 367, 393-94 n.53

(2003) (discussing Fourth Circuit).

More mentally retarded persons than juveniles have been

executed, in more states, since the death penalty was

reinstated in 1976. As Atkins noted in regard to the mentally

retarded, in light of the small number of executions of

juvenile offenders carried out in the last decade, legislatures

in states with a juvenile death penalty may have seen little

reason to pass legislation barring it. Atkins, supra at 316.

Juveniles are so seldom executed that, other than perhaps in

Texas, Virginia, and Oklahoma, the death penalty for

juveniles has become so truly unusual that its potential

application is more hypothetical than real.

3. Other Nations: Allies in the War on

Terrorists

That it would offend civilized standards of decency to

execute a person who was less than 18 years old at the time of

the offense also finds support in the views that have been

expressed by “other nations that share our Anglo-American

heritage.” Thompson, 487 U.S. at 830 (plurality); see also

Atkins, 536 U.S. at 313; but see Stanford, 492 U.S. at 369 n.1.

The domestic legislative evidence that age 18 is the appro-

priate boundary between minority and adult responsibility

coincides with international law. The international rejection

of the juvenile death penalty was already strong at the time of

Stanford. Today, the United States stands alone: The U.S. is

the only country in which the execution of those under 18 is

officially sanctioned, and the only country that has not signed

the UN’s Convention on the Rights of the Child, which

prohibits the practice. See Amnesty International, Juveniles:

The Death Penalty Gives Up On Juvenile Offenders (July 28,

2003), at http://www.amnestyusa.org/abolish/juveniles. Of the

last seven juvenile offender executions, five occurred in the

United States. See Streib, supra, at 7.

Perhaps more importantly, the September 11, 2001 terrorist

attacks occurred since Stanford was decided. We are now a

nation at war. The reality of war affects constitutional

adjudication. E.g., Hamdi v. Rumsfeld, No. 03-6696, 542 U.S.

___ (U.S. June 28, 2004); Rasul v. Bush, No. 03-334, 542

U.S. _ (U.S. June 28, 2004).

The United States cannot win the war against terrorists

without the active cooperation of other nations. After

September 11, the good opinion of the world is no longer a

matter simply of U.S. pride; it is a matter of national self

defense and survival. Whether we like it or not, most of the

rest of the world finds capital punishment barbaric, the

juvenile death penalty more barbaric still. The geopolitical

reality is that elimination of our juvenile death penalty would

increase worldwide respect for and cooperation with America

as we lead the global war on terror. As we lead the war on

terrorism, it will be essential that our domestic standards of

law and morality match or exceed the standards of our allies

in this war.

C. The Second Prong (the Court’s Independent

Judgment on Deterrence and Retribution):

Establishing a Bright-Line Age Limit of 18

Years Will Not Undermine Deterrence or

Retribution, Because the Reasons For Treating

Minors Differently From Adults Apply With

Special Force Here, Since the Developmental

Differences Between Adolescents and Adults

Diminish the State’s Interest in Inflicting the

Death Penalty on Minors

1. The Law Treats Children Differently Because

Children Are Different

The previous section documented ways in which the law

treats children differently from adults. This section discusses

the reason: The law treats children differently because

children are different. Specifically, children are different in

ways directly connected to the goals of capital punishment—

retribution and deterrence. See Thompson, supra; but see

Stanford, supra (no discussion of deterrence or retribution).

The Thompson plurality explained what every parent worth

her salt knows from experience: “Less culpability should

attach to a crime committed by a juvenile. ... 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 group pressure.” Thompson, supra

at 835.

2. Retribution and Deterrence

The Court has said that retribution—the expression of soci-

ety’s outrage at particularly offensive conduct—is a legitimate

penological goal of capital punishment. Thompson, 487 U.S.

at 836 (plurality); Spaziano v. Florida, 468 U.S. 447, 461-62

(1984); Enmund, 458 U.S. at 800-01; Gregg, 428 U.S. at 183;

Atkins, 536 U.S. at 319; but see Stanford, supra (no discus-

sion of retribution); Penry, supra (same).

As the Thompson plurality observed, the philosophical

premises of retribution fail when applied to minors. Thomp-

son supra at 834-35. The morality of the anger which fuels

the desire for retribution is based on the killer’s violation of

the social compact. Society has entrusted its citizens with

rights, one of which is freedom, and the murderer has grossly

abused that freedom. WALTER BERNS, FOR CAPITAL PUNISH-

MENT 155 (1979). The fallacy of this retributive argument as

it applies to minors is precisely that society does not entrust

minors with such freedom. States do not trust their minors

to vote, sit on juries or engage in a wide variety of adult

activities.

It is no accident that even in an era in which the public

perceives a significant increase in juvenile crime and where

public support for capital punishment is overwhelming, juries

almost never vote to execute minors—even for especially

hideous and high-profile crimes. See, e.g., Mark Wilson,

Convicted Sniper Lee Boyd Malvo Sentenced to Life, USA

Today, March 10, 2004. Many jurors, given the task of ex-

pressing the common sense judgment of the community,

recognize that adolescents are developmentally distinct from

adults, that adolescents grow up, and that young people are

uniquely capable of being rehabilitated. Juries recognize that

it is unrealistic and inhumane to treat young offenders as if

they have fully mature judgment and control.

Thompson recognized that, in refusing to vote for the ulti-

mate retribution for minors, juries understand the common

sense and empirically supported assumption that minors lack

the maturity, experience, sophistication and judgment neées-

sary to make many important decisions. “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. The reasons

why juveniles are not trusted with the privileges and respon-

sibilities of an adult also explain why their irresponsible

conduct is not as morally reprehensible as that of an adult.”

Thompson, 487 U.S. at 835 (plurality). “Children, by defini-

tion, are not assumed to have the capacity to take care of

themselves.” Schall v. Martin, 467 U.S. 253, 265 (1984).

Similarly, Thompson acknowledged, exempting juveniles

from capital punishment would not undermine the deterrent

effect of capital punishment. The “death penalty has little

deterrent force against defendants who have reduced capacity

for considered choice.” Skipper v. South Carolina, 476 U.S.

1, 13 (1986) (Powell, J., concurring). The Thompson plurality

noted that adolescents are less likely than adu! s to calculate

consequences rationally; this, indeed, is the premise under-

lying the states’ guardianship and protection of minors. It is

unlikely that cold, rational calculation of risks and conse-

quences is involved when minors commit crimes. Thompson,

supra at 837-38; see also CLEMENS BARTOLLAS, JUVENILE

DELINQUENCY 102 (1985).

The Thompson plurality grounded its analysis of retribution

and deterrence in research conducted by behavioral psycholo-

gists. At the time of Thompson and Stanford, developmental

psychologists had long reported differences between the

thinking and behavior of children, adolescents, and adults.

The psychological literature remains solid on this score. See

Feld, supra.

However, recent neuroscience research since Stanford sug-

gests that these behaviors have organic roots—in brain

development, biological maturation, and intellectual function-

ing. See generally Feld, supra at section Ill. A. 4 (summariz-

ing studies). In other words, a “hard-science explanation may

exist for the soft-science observations of social scientists.

Neurobiological science suggests that the human brain does

not achieve physiological maturity until the early twenties,

and that adolescents simply do not have the same physiologic

capability as adults to make mature decisions or to control

impulsive behavior.” /d.; see also, e.g., Claudia Wallis,

Secrets of the Teen Brain, Time, May 10, 2004 (cover story).

The unifying narrative theme of the social science materials

cited in Thompson, and of the neuroscience research

conducted since Thompson and Stanford, provide empirical

support for the common sense idea that adolescents act

differently because they are different. These differences go

directly to the retributive and deterrent justifications for

capital punishment.

D. A Bright-Line Rule Is Appropriate Here,

Because There Is No Viable Basis for Distin-

guishing Among Minors for Purposes of

Administration of the Death Penalty, and

Because a Bright-Line Rule Would Best Serve

the Principles of Federalism

The quandary of line-drawing among minors is, of course a

dilemma that the Court has faced on prior occasions. In

numerous cases, in numerous factual contexts, the Court has

consistently sounded a single, overarching theme: that

minors—simply by virtue of their status as minors—can be

deprived of the rights and privileges of adults. The Court’s

decisions sanctioning legal disabilities for minors treat

juveniles as a coherent class, and establish the age of majority

as the demarcation between the period of childhood and

the period of adulthood. E.g., Ginsberg v. New York, 390

U.S. 629 (1968); Parham v. J.R., 422 U.S. 584 (1979);

Schall, supra.

It is instructive to consider the context in which the Court

has previously decided questions of juvenile law. Typically,

the question presented is whether a certain minor, or class of

minors, is sufficiently mature or sophisticated to be treated as

an adult and freed of a statutory or administrative restriction

that affects all young people. The Court has repeatedly re-

jected such attempts to draw distinctions between subgroups

of minors, and instead has relied on generalizations about the

unique nature of childhood and the universal characteristics of

children, to treat minors as a single coherent class. E.g.,

Schall, 467 U.S. at 265 (“[c)hildren, by definition, are not

assumed to have the capacity to care for themselves”); Prince

v. Massachusetts, 321 U.S. 158, 168 (1944) (upholding the

state's right to restrict a minor’s employment opportunities,

because “(t]he state’s authority over children’s activities is

broader than over like actions of adults”).

1. The Abortion Cases

The series of decisions addressing the privacy rights of a

young woman to an abortion constitute the only factual

context in which the Court has tolerated case-by-case deter-

minations on the basis of the relative maturity or immaturity

of individual youths. E.g., Planned Parenthood v. Casey, 505

US. 833 (1992) (upholding parental consent requirement for

immature minors); Planned Parenthood of Missouri, supra:

Bellotti v. Baird, 443 U.S. 622 (1979); HL. v. Matheson.

supra. However, the Court has permitted such case-by-case

determinations only in order to avoid irrevocable harm. In

Bellotti, the Court recognized that “considering her probable

education, employment skills, financial resources, and emo-

tional maturity, unwanted motherhood may be exceptionally

burdensome for a minor.” 443 U.S. at 642. Accordingly, the

Court struck down a parental veto statute that would have

imposed the “grave and indelible” consequences of “un-

wanted motherhood” upon mature minors who were capable

of rationally considering the alternatives. /d.

A question is sometimes raised as to how a young teen can

have the maturity to decide whether or not to have an abortion

and yet not be mature enough to be subject to the death

penalty. The broadest response to the question is that devel-

opmental maturity is always conditional. A teen who is

considered able to handle the question of abortion may not be

mature enough to act as a guardian or to serve in public

office. Contemplating the future consequences of bearing (or

not bearing) a child is inherently very different from fore-

seeing the consequences of killing another person—an act

that for a young teen can hardly be labeled a decision in an

adult sense, especially in light of what has been learned

recently about the functioning of the adolescent brain. See

Nicole Saharsky, Comment, Consistency as a Constitutional

Value: A Comparative Look at Age in Abortion and Death

Penalty Jurisprudence, 85 MINN. L. REV 1119 (2001).

The response from a jurisprudential perspective is even

clearer. From Furman and Gregg to Thompson and Atkins,

the mandate is fairness, and the calculus is consistency. The

eighth amendment is offended by the absence of either. Cases

raising the issue of the autonomy interest of a pregnant minor

vis a vis other protectable interests under law do not concern

punishment, let alone cruel and unusual punishment. The

bright-line that is so essential in establishing consistent

classifications under the death penalty scheme is, indeed,

counterproductive in the teen abortion/parental notification

context, since the focus is on individual maturity, rather than

legal presumptions flowing from one’s age. See Bellotti v.

Baird, 443 U.S. 622, 647 (1979). In sum, teen applicants for

autonomy in making decisions about abortion are not even to

be compared with each other, and even less with minors

facing the death penalty.

Unlike the prior cases involving minors’ rights, where an

individual minor (or a litigant acting on behalf of the minor)

sought to divide artificially the general class of minors into

subclasses of mature and immature minors for the sake of —

expanding mature minors’ rights, here it is the state that is

asking the Court to engage in such artificial case-by-case

decision making. The state asserts, in effect, that certain

minors are sufficiently mature and sophisticated so as to fall

outside the general category of youth and be subjected to the

perquisites (here, the penalties) of adulthood.

The case-by-case decision making urged by the state cannot

be squared with the Court’s prior decisions in the area of

minors’ rights. There can be no justification for employing a

one-way analysis that forbids case-by-case decision making

for the sake of expanding minors’ rights while employing that

very same form of decision making for the sake of extinguish-

ing the greatest of all rights, the right to life.

2. The Risk of Error

We understand that different people mature at different

rates: “17'%2 -year-olds vary widely.” Yarborough v. Alverado,

No. 02-1684, 542 U.S. _, 72 U.S.L.W. 4415, 4420 (U.S.

June 1, 2004) (O’Connor, J., concurring). There is nothing

magical about the | 8th birthday.

Establishing a bright-line at age 18 may mean that some

especially mature minors might escape the death penalty.

However, trials are imprecise instruments, and “maturity” is a

slippery concept at best—which means that, under the status

quo, some especially immature minors are sentenced to death.

That is one message behind the 86% reversal rate in juvenile

capital cases. See Streib, supra at 8. Both the status quo and

the bright-line rule we advocate carry risks of error.- We

believe that the risk of error ought to be allocated in favor of

life over death. See Feld, supra at section IV.

But focusing on offender maturity and blameworthiness

obscures a larger societal truth: This is not just about who the

killers are. This is also about who we are as a society. The

controlling eighth amendment inquiry turns on our nation’s

standards of decency. Perhaps some 17-year-olds are mature

enough to die; perhaps some even deserve to die. But we

should still choose not to kill them. America should not

execute people who were children—so defined by a wide

constellation of objective indicia—when they committed

murder. We should be better than that.

3. Federalism: A Bright-Line Rule is Less

Injurious to Principles of Federalism

Federalism also supports a bright-line rule. The govern-

ment argues that states should be free to set the execution

eligibility age limit to lower than age 18, that establishing a

bright-line rule at age 18 would offend principles of federal-

ism. But a bright-line age limit would be less injurious to

principles of federalism than the status quo today. Today, we

know that the Constitution sets some minimum age for execu-

tion eligibility. We just do not know what that age might be.

This vagueness matters: The reversal rate for juvenile death

sentences is 86% (133 of 155). See Streib, supra at 8. Nearly

nine out of ten juvenile death sentences have been reversed.

Many of those reversals have been at the hands of federal

habeas courts. The status quo, not a bright-line age limit of

18. constitutes an unwarranted federal intrusion into state

control of its criminal procedure.

An absolute age limit of age 18 would be less of an intru-

sion on state criminal processes, because it would be clear-

cut, in contrast to the current vagueness. Such vagueness

compels continual intervention by the federal courts into state

criminal proceedings—not on the basis of applying a concrete

principle but by the corrosive and irritating process of case-

by-case review. The vagueness of the status quo has not

meant, and will not mean, /ess federal intervention in state

criminal prosecutions than would be the case if the eighth

amendment, were construed to establish a bright-line age limit

of 18. The status quo means more federal intervention on a

case-by-case basis—and the relations between federal and

state courts would suffer from it. A bright-line age limit of 18

would be a more appropriate adaptation of the eighth amend-

ment to the demands of federalism.

Finally, the practical implications with respect to persons

already on death row do not militate against overruling

Stanford and establishing a bright-line at age 18. The 72

juvenile offenders currently on death row constitute only two

percent of the total death row population of approximately

3,500. See Streib, supra at 11. Since 1973, almost all actual

executions have been of adult offenders, so the overall execu-

tion rate would be largely unaffected even if the Court were to

establish a bright-line at 18. See Streib, supra at 5. For

example, Texas has executed 321 persons in the current era,

only 13 (four percent) of whom were juveniles. /d. Outside of

Texas the rest of the United States has executed 588 persons

in the current era, only 19 (1.5 percent) of whom were

juvenile offenders. /d.

CONCLUSION: “Being Able to Stay Outside and

See the Moon and Stars. .. .”

The inevitability of the difficult task of linedrawing is

endemic to a Constitution that has chosen not to leave it to the

vagaries of isolated juries and trial judges to determine exclu-

sively and irremediably the state of our national conscience. If

a constitutional line exists here—and Thompson shows that it

does—the appropriate place to draw it is at least far clearer in

relation to the present subject than in many constitutional

areas. The overwhelming concentration of the relevant objec-

tive indicators fix age 18 as the line of full adult responsibility

with a clarity that is not merely convenient but compelling

when the gravest penal sanction of a society is sought to be

exacted of its youth.

Amid the legal arguments and counter arguments made in

cases such as this, it is easy to lose track of the truth that these

cases affect real lives. Death row prisoners are real people.

Their murder victims are real people.

During the 1980s, undersigned counsel represented a Flor-

ida death row prisoner named Paul Magill. See MICHAEL

MELLO, DEATHWORK 148-161 (2002); Michael Mello, “/n the

Years When Murder Wore the Mask of Law”: Diary of a

Capital Appeals Lawyer, 24 VT. L. REV. 583, 596-97 n.67,

1026-27. 1096-1124, 1148-50 (2000). Magill was 17 years

old when he committed murder. He is 47 today. In 1988,

Magill was resentenced to life in prison. Counsel remains in

touch with Paul Magill and Mary Lou Magill, Paul’s mother.

Counsel recently received a letter from Paul:

January 31, 2004

Dear Mike

Greetings from Sunny Florida. It’s a sunny 50 something

outside now. The temp has been up and down for the

past couple months. The weatherman can’t seem to make up

his mind.

As you can see by my return address, I’m no longer at

Union. | got transferred out of the triangle (Starke, Raiford,

Lake Butler) this past October, after 27 years in that area.

After 10 days in transit at Lake Butler and Orlando CFRC, I

arrived here on October 13. Got to see a lot of new buildings

and road construction on the way here. And this place is so

much bigger than FSP or UCI. It’s still strange living in an

open bay dorm and being able to stay outside and see the

moon and stars unti] 9:30 pm.

Two and a half weeks after getting here, I started work in

the Pride Work furniture factory here. So I’ve now worked for

PRIDE 8 years and 4 months. I’m focusing solely on inven-

tory control now, so I have less responsibilities than I had at

Union Pride Metal. That goes along with my cut in pay and

hours worked. Where I was getting a hundred hours every 2

weeks at 55¢ at Union, I’m now getting 64 hours at 45¢, a

drastic reduction in income. I’ve also lost over 30 Ibs. which

has helped a great deal.

There are more programs here. I’m currently involved in

the Lifer’s Club, which offers a number of instructional and

self improvement programs.

I’ve started putting together a Parole Plan, in anticipation

of my second Parole Hearing next year in May. I’ve been

attempting to contact people who could be prospective em-

ployers, transition programs. So far I haven’t heard anything

back. After over 27 years there are very few people I am fa-

miliar with in Marion County. I’ve been fishing for addresses

and introducing myself to total strangers. I’m having to de-

velop some very different communication skills from those

I’ve relied on during my time in prison. It’s like I’m a

salesman, knocking on doors and making my sales pitch to

people who don’t know me and have no reason to trust me. I

try to tell them as much as I can about me, without taking too

much time and boring them. You don’t happen to know any-

body in the Ocala/Belleview area whom | could contact,

do you?

I hope all is well with you and Deanna.

Sincerely yours,

Paul Magill

# 059128

Respectfully submitted,

MICHAEL MELLO *

VERMONT LAW SCHOOL

P.O. Box 96, Chelsea St.,

South Royalton, Vermont 05068

(802) 831-1291

JEFFREY D. ROBINSON

GEOVETTE E. WASHINGTON

BAACH, ROBINSON & LEWIS

1201 F. St., N.W. Ste. 500

Washington, D.C. 20004-1225

(202) 659-7205

* Counsel of Record Attorneys for Amicus Curiae”

July 16, 2004

* Counsel gratefully acknowledges the assistance of several Vermont

Law School students who provided invaluable assistance on this brief:

Bakhtyar Talia, Alexander Nuti-de-Baisi, Forrest Bell, Kristen Campbell,

Barrett Schultz, and Heather Whitney.

This brief is dedicated to Ida S. Mello. See generally Yvonne Lamb, A

Local Life: Ida S. Mello: Virginia Woman's Warmth, Caring Knew No

Boundry, Wash. Post, March 21, 2004.

APPENDIX A

Age of Majority”

Cumulative Totals by Age — 50 States & D.C.

™ One state (MO) has no uniform age of majority.

Totals (50 States and D.C.)

Age 18 19 21 Not Uniform

Number 46 2 2 l

STATE AGE CITATION

AL 19 Ala. Code §26-1-1 (2003)

AK 18 Alaska Stat. §25.20.010 (2003)

AZ 18 Ariz. Rev. Stat. Ann. §1-215 (2003)

AR 18 Ark. Stat. Ann. §9-25-101 (2003)

CA 18 Cal. Fam. Code §6500 (2004)

8) 18 Colo. Rev. Stat. §13-22-101 (2004)

CT 18 Conn. Gen. Stat. §1-1d (2003)

DE 18 Del. Code Ann. tit. 1, §701 (2003)

DC 18 DC St. §46-101 (2003)

FL 18 Fla. Stat. Ann. §743.07 (2003)

GA 18 OCGA §39-1-1 (2003)

HI 18 Haw. Rev. Stat. §577-1 (2003)

ID 18 Idaho Code §32-101 (2003)

IL 18 755 ILCS 5/11-1 (2003)

IN 18 In. St. 1-1-4-5, IC 1-1-4-5 (2003)

IA 18 lowa Code Ann. §599.1 (2003)

KS 18 Ks. St. §38-101 (2002)

KY 18 Ky. St. §2.015 (2003)

LA 18 LSA-C.C. art. 29 (2003)

ME 18 Me. Rev. Stat. Ann. tit. 1, §72 (2003)

MD 18 Md. Code, art. 1, §24 (2004)

MA 18 M.G.L.A. 4 §7, cl. (51) (2004)

MI 18 Mich. Comp. Laws Ann. §722.52 (2003)

MN 18 Mn. St. §645.451 (2004)

MS 21 Miss. Code. Ann. §1-3-27 (2003)

MO - No Uniform Age

MT 18 Mt. St. 41-1-101 (2003)

NE 19 Neb. St. §43-2101 (2003)

NV 18 Nev. Rev. Stat. §129.010 (2003)

NH 18- NH. Rev. Stat. Ann. 21:44 (2003)

«18

N.J.S.A. 9:17B-3 (2003)

N.M. St. §28-6-1 (2003)

McKinney’s D.R.L. §2, McKinney’s CPLR

§105() (2004)

N.C.G.S.A. §48A-2 (2003)

N.D. St. 14-10-01 (2003)

Ohio Rev. Code Ann. §3109.01 (Baldwin

2003)

15 Okl. St. Ann. §13 (2003)

O.R.S. §109.510 (2001)

1 Pa. C.S.A. §1991 (2003)

R.1. §15-12-1 (2002)

S.C. Const. art. XVII, §14 (2003)

S.D. Codified Laws Ann. §26-1-1 (2003)

Tenn. Code Ann. §1-3-105 (2003)

V.T.C.A., Civil Practice & Remedies Code

§129.001 (2003)

Utah Code Ann. §15-2-1 (2003)

Vt. Stat. Ann. tit. 1, §173 (2003-2004)

Va. Code Ann. §1-13.42 (2003)

Wa. St. 26.28.010 (2004)

W. Va. Code §2-2-10 (aa) (2003)

W.S.A. §938.02(1) (2003) (defining

“adult” for all purposes except criminal

investigation or prosecution

Wyo. Stat §14-1-101 (2003)

APPENDIX B

Right to Serve on Jury

Cumulative Totals by Age — 50 States & D.C.

0 .—_—__——- —

Totals (50 States and D.C.)

Age

Number

STATE

AGE

19 l

2 2

ITATION

Ala. Code §12-16-60(a)(1) (2003)

Ak. Stat. §09.20.010(a)(3) (2003)

Ariz. Rev. Stat. Ann. §21-301(D) (2003)

Ark. Stat. §16-31-101(2003) (by inference)

West’s Ann. Cal. C.C.P. §203 (2004)

C.R.S.A. §13-71-109(2)(a) (2004)

Conn. Gen. Stat. §51-217 (2003)

De. St. tit. 10, §4509(b)(2) (2003)

D.C. Code Ann. §11-1906(b)(1)(C) (2003)

Fla. Stat. Ann. §40.01 (2003)

Ga. Code Ann., §15-12-163(b)(2) (2003);

Ga. Code Ann., §15-12-60(a) (2003)

Haw. Rev. Stat. §612-4(a)(1) (2003)

Idaho Code §2-2092)(a) (2003)

705 ILCS 305/2 (2003)

IC 33-4-5-7(B)(1) (2003)

1.C.A. §607(A).4 (2003)

Kan. Stat. Ann. §43-156 (2002)

Ky. Rev. Stat. Ann. §29A.080(2)(a) (2003)

La. Code Crim. Proc. Ann. art. 401(a)(2)

(2003)

Me. Rev. Stat. Ann. tit. 14, §1211 (2003)

Md. Cts. & Jud. Proc. Code Ann. §8-104

(2004)

Mass. Gen. Laws. Ann. ch. 234, §1 (2003),

ch. 51, §1 (2003)

Mich. Comp. Laws Ann. §600.1307a(1)(a)

(2003)

Minn. Gen. R. Prac., Rule 808(b) (2003)

Miss. Code Ann. §13-5-1 (2003)

V.A.M.S. §494.400 (2003), V.A.M.S.

§494 425 (2003)

Mont. Code Ann. §3-15-301 (2003), Mt.

Const. art. 4, §2 (2003)

Neb. Rev. Stat. §25-1601 (2003)

Nev. Rev. Stat. §6.010 (2003), 55 ILCS

§/1-5013 (2003)

N.H. Rev. Stat. §500-A:7-a (2003)

N.J.S.A. 2B:20-1 (2003)

N.M. St. §38-5-1 (2003)

N.Y. Judiciary Law §510(2) (2003)

N.C. Gen. Stat. §9-3 (2003)

N.D. Cent. Code §27-09.1-08(2)(b) (2003)

Ohio Rev. Code Ann. §2313.42 (2003)

Okla. Stat. Ann. tit. 38, §28 (2003)

Or. Rev. Stat. §10.030(2)(c), (3 (ac)

(2003) .

Pa. Stat. Ann. tit. 42, §4521 (2003)

R.1. Gen. Laws §9-9-1(a)(2) (2003)

S.C. Code Ann. §14-7-130 (2003)

S.D. Codified Laws Ann. §16-13-10

(2003)

Tenn. Code Ann. §22-1-101 (2003)

Tex. Gov't Code Ann. §62.102 (2003)

Utah Code Ann. §78-46-7(1)(b) (2003)

Vt. St. tit. 4, §962 (2003-2004)

Va. Code Ann. §8.01-337 (2003)

Wash. Rev. Code Ann. §2.36.070 (2004)

W. Va. Code §52-1-8(b)(1) (2003)

W.S.A. §756.02 (2003)

Wyo. Stat. §1-11-101 (2003)

APPENDIX C

Right to Vote

Totals (50 States and D.C.)

Age

Number 51

STATE AGE CITATION

Al. Const. Amend. No. 579 (2003)

Ak. Const. art. 5, §1 (2003); Ak. St.

§15.05.010 (2003)

Az. St. §16-121 (2003); Az. Const. art. 7,

§2 (2004)

Ar. Const. art. 3, §1 (2003)

Cal. Const. art. 2, §2 (2004)

Colo. Rev. Stat. §1-2-101 (2004)

Ct. Const. art. 6, §1 (2003); Conn. Gen.

Stat. §9-12 (2003)

De. St. tit. 15, §1701 (2003)

D.C. St. §1-1001.02(2\b) (2003)

Fla. Stat. Ann. §97.041 (2003)

Ga. Const. art. 2, §1, para 2(2003)

Haw. Rev. Stat. tit. 2, §11-12 (2003)

Idaho Code §34-402 (2003)

Il. St. ch. 10 §5/7-43 (2003)

In. St. 3-7-13-1 (2003)

1.C.A. §48A.5 (2003)

Kan. Const. art. 5, §1 (2003)

Ky. Const. §145 (2003)

La. Const. art. 1, §10(A) (2004); La. Rev.

Stat. Ann. §18:101 (2003)

Me. Rev. Stat. Ann. tit. 21-A, §111(2)

(2003)

Md. Code, Election Law, §3-102(a) (2004)

Mass. Gen. Laws Ann. ch. 51, §1 (2004)

Mich. Comp. Laws Ann. §168.492 (2003)

Minn. Stat. Ann. §201.014 (2003)

Miss. Const. art. 12, §241 (2003)

Mo. Const. art. VIII, §2 (2003)

Mont. Const. art. [V, §2 (2003); Mt St 13-

1-111 (2003)

Neb. Rev. St. Const. art. VI, §1 (2003);

Neb. Rev. Stat. §32-223 (2003)

Nev. Rev. Stat. §293.485 (2003)

N.H. Const., Pt. 1, Art. 11 (2003)

N.J. Const. art 2, §1, para. 3 (2003)

N.M. St. §1-21-2 (2003)

N.Y Elec. Law §5-102 (2003)

N.C. Gen. Stat. §163-55 (2003)

N.D. Const. art. Il, §1 (2003)

Ohio Const. art. V, §1 (2003); Ohio Rev.

Code Ann. §§3503.01 & 3503.11 (2003)

Okla. Const. art. II], §1 (2003)

Or. Const. art. I], §2 (2003)

Pa. Stat. Ann. tit. 25, §2811 (2003)

R.I. Gen. Laws §17-1-3 (2003)

S.C. Code Ann. §7-5-610 (2003)

S.D. Const. art. VII, §2 (2001); S.D.

Codified Laws Ann. §12-3-1 (2001)

Tenn. Code Arn. §2-2-102 (2003)

V.T.C.A., Election Code §11.002 (2003)

Ut. St. §20A-2-101 (2003)

Vt. Stat. Ann. tit. 17, §2121 (2003-2004)

Va. Const. art. Il, §1 (2003)

Wash. Const. art. VI, §1, (2003)

W. Va. Code §3-1-3 (2003)

Wis. Const. art. 3, §1 (2004) W.S.A. 6.02

(2003); W.S.A. 6.05 (2003)

Wy. St. §22-3-102 (2003)

10a lla

APPENDIX D Totals (50 States and D.C.)

Bb 6b Bb FY

Right to Marry Without Parental Consent ” mber 1 2 47 1

STATE AGE CITATION

AL 18 Ala. Code §30-1-5 (2003)

AK 18 Alaska Stat. §25.05.171 (2003) (judge may

permit minor to marry without parental

consent, even in the face of parental

opposition, in certain circumstances)

Cumulative Totals by Age — 50 States & D.C.

AZ 18 Az. St. §25-102 (2003)

AR 18 Ark. Stat. Ann. §9-11-102 through 9-11-

105 (2003)

CA 18 West's Ann. Cal. Fam. Code §301 (2004);

Ca. Fam. §302 (2004)

CO 18 Colo. Rev. Stat. §14-2-106(1 (a1) (2004)

CT 18 Conn. Gen. Stat. §46b-30 (2003)

DE 18 Del. Code Ann. tit. 13, §123 (2003)

DC 18 D.C. Code §46-411 (2003)

FL 18 Fla. Stat. Ann. §741.04 (2003); West's

F.S.A. §741.0405 (2003)

GA 16 OSCGA §19-3-37 (1982)

HI 18 Haw. Rev. Stat. §572-2 (2003)

ID 18 Idaho Code §32-202 (2003)

IL 18 750 LL.C.S. 5/203 (2003)

IN 18 LC. 31-11-1-4 (2003); LC. 31-11-1-6

(2003)

IA 18 lowa Code Ann. §595.2 (2003)

KS 18 Kan. Stat. Ann. §23-106 (2002)

KY 18 Ky. Rev. Stat. Ann. §402.210 (2003)

LA 18 La. Civ. Code Ann. art. 87 (Supp. 1988)

(minors not legally prohibited from

marrying, even without parental consent,

but marriage ceremony required); La. Rev.

Stat. Ann. §9:21 (Supp. 1988) (official

12a

may not perform marriage ceremony in ™

which a minor is a party without parental UT

consent; Comments to Civ. Code Ann. art. VT

87 suggest that such a marriage is valid but | VA

that official may face sanctions) WA

Me. St. tit. 19, §652 (2003) WV

Md. Fam. Law Code Ann. §2-301 (Supp. WI

1987) WY

Mass. Gen. Laws. Ann. Ch. 207 §7 (2004)

Mich. Comp. Laws Ann. §551.103 (2003)

Minn. Stat. Ann. §517.02 (2004)

Miss. Code Ann. §93-1-5(d) (Supp. 1987)

(female may marry at 15 without parental

consent)

Mo. Ann. Stat. §451.090 (2003)

Mont. Code Ann. §40-1-202 (2003)

Neb. Rev. Stat. §42-105 (2003); Neb. St.

§43-2101 (2003)

Nev. Rev. Stat. §122.020 (2003)

N.H. Rev. Stat. Ann. §457:5 (2003)

N.J.S.A. 37:1-6 (2003)

N.M. Stat. Ann. §40-1-6 (2003)

McKinney’s D.R.L. §15 (2004), N.Y.

Dom. Rel. §15 (2003)

N.C. Gen. Stat. §51-2 (2003)

N.D. Cent. Code §14-03-02 (2003)

Ohio Rev. Code Ann. §3101.01 (2003)

Okla. Stat. Ann. tit. 43, §3 (2003)

Or. Rev. Stat. §106.060 (2001)

23 Pa. C.S.A. §1304 (2003)

R.1. Gen. Laws §15-2-11 (2003)

S.C. St. §20-1-250 (2003); SC ST §20-1-

100 (2003)

S.D. Codified Laws Ann. §25-1-9 (2003)

Tenn. Code Ann. §36-3-106 (2003)

l3a

V.T.C.A., Family Code §2.101 (2003):

V.T.C.A., Family Code §2.102 (003) ’

Utah Code Ann. §30-1-9 (2003)

Vt. Stat. Ann. tit. 18, §5142 (2003-2004)

Va. Code Ann. §20-48 (2003)

Wash. Rev. Code Ann. §26.04.210 (2004)

W. Va. Code §48-2-301 (2003)

Wis. Stat. Ann. §765.02 (2003)

Wyo. Stat. §20-1-102(c) (2003)

l4a

APPENDIX E

Consent to Most Forms of Medical Treatment

Cumulative Totals by Age — 50 States & D.C.

nD-

lSa

Totals (50 States and D.C.)

Age 14 15 16 17 18 21 Other

Number 2 02 1 321 13

STATE AGE CITATION

AL 14 Ala. Code §22-8-4 (2003)

AK 18 Alaska Stat. §25.20.025 (2003)

AZ 18 Ariz. Rev. Stat. Ann. §44-132 (2004)

AR Minor of

Sufficient

Intelligence Ark. Code Ann. §20-9-602 (2003)

CA - Any

Minor Cal. Fam. Code §6920 (2004)

CO 18 Colo. Rev. Stat. §13-22-103 (2003)

CT 18 Conn. Gen. Stat. Ann. §46b-150d (2003)

DE 18 Del. Code. Ann. tit. 13, §707 (2004)

DC - No Legislation

FL Any

Minor Fla. Stat. Ann. §743.064 (2003)

GA 18 Ga. Code Ann. §31-8-2 (2002)

HI 17 Haw. Rev. Stat. §577A-2 (2003)

ID 14 Idaho Code §39-801 (2003)

IL 18 410 Ill. Comp. Stat. 210/1 (2004)

IN 18 Ind. Code Ann. §16-36-1-3 (Michie 2004)

IA 18 lowa Code §147.137 (2003)

KS 18 Kan. Stat. Ann. §38-122 (2003)

KY 18 Ky. Rev. Stat. Ann. §216B.400 (Michie

2002)

LA 18 La. Rev. Stat. Ann. §40:1095 (2004)

ME 18 Me. Rev. Stat. tit. 32, §3292 (2003)

MD Any

Minor Md. Code Ann., Health-Gen. §20-102

(2003)

MA 18 Mass. Ann. Laws ch. 112, §12F (Law. Co-

op. 2004)

l6a

No Legislation

Minn. Stat. Ann. §144.341 (2003)

Miss. Code Ann. §41-41-3 (2004)

Mo. Ann. Stat. §431.061 (2004)

Mont. Code Ann. §41-1-402 (2003)

No Legislation

Nev. Rev. Stat. Ann. 129.030 (2004)

No Legislation

N.J. Stat. Ann. §9:17B-1(A) (2004)

N.M. Stat. Ann. §24-10-1 (2003)

N.Y. Pub. Health Law§ 2504 (2003)

N.C. Gen. Stat. §90-21.1 (2004)

N.D. Cent. Code §14-10-17.1 (2003)

Ohio Rev. Code Ann. §2317.54 (Anderson

2003)

Okla. Stat. Ann. tit. 63, §2602 (2003)

Or. Rev. Stat. §109.640 (2001)

Pa. Stat. Ann. tit. 35, §10101(2003)

R.I. Gen. Laws §23.4.6-1 (2003)

S.C. Code. Ann. §20-7-280 (Law. Co-op.

2003)

S.D. Codified Laws §20-9-4.2 (2003)

Tenn. Code. Ann. §63-6-229 (2003)

Tex. Fam. Code Ann. §32.003 (2004)

No Legislation

Va. Code Ann. §16.1-334 (2003)

Wash. Rev. Code Ann. §26.28.015(5)

(2004)

No Legislation

Wyo. Stat. Ann. §35-2-614 (2003)

17a

APPENDIX F

Right to Drive Without Parental Consent

Cumulative Totals by Age — 50 States & D.C.

18a

Totals (50 States and D.C.)

Age 146 WU 423

Number 8 2 41

STATE AGE CITA.IiON

AL 16 Ala. Code §32-6-7(1) (2003)

AK 18 Alaska Stat. §28.15.071 (2003)

AZ 18 Ariz. Rev. Stat. Ann. §28-3160 (2004)

AR 18 Ark. Code Ann. §27-16-702 (2003)

CA 18 Cal. Veh. Code §12512 (2004)

CO 18 Colo. Rev. Stat. §42-2-108 (2003)

CT 18 Conn. Gen. Stat. Ann. §14-36 (2003)

DE 18 Del. Code Ann. tit. 11, §2707(a) (2004)

DC 16 D.C. Code Ann. §50-1401.01 (2003)

FL 18 Fla. Stat. Ann. §322.09 (2003)

GA 18 Ga. Code Ann. §40-5-26 (2002)

HI 18 Haw. Rev. Stat. §286-112 (2003)

ID 18 Idaho Code §49-310 (2003)

IL 18 625 Ill. Comp. Stat. 5/6-103 (2004)

IN 18 Ind. Code Ann. §9-24-9-3 (Michie 2004)

1A 18 lowa Code §321.177 (2003)

KS 16 Kan. Stat. Ann. §8-237 (2003)

KY 18 Ky. Rev. Stat. Ann §186.470 (Michie

2002)

LA 18 La. Rev. Stat. Ann. §32:407 (2004)

ME 18 Me. Rev. Stat. tit. 29, §1302 (2003)

MD 18 Md. Code Ann., Transp. §16-103 (2003)

MA 18 Mass. Ann. Laws ch. 90, §8 (Law. Co-op.

2004)

MI 18 Mich. Comp. Laws §257.308 (2003)

MN 18 Minn. Stat. Ann. §171.04 (2003)

MS 17 Miss. Code Ann. §61-1-23 (2004)

MO 16 Mo. Ann. Stat. §302.060 (2004)

MT 16 Mont. Code Ann. §61-5-105 (2003)

NE 17 Neb. Rev. Stat. Ann. §60-4,118.05 (2003)

NV 18 Nev. Rev. Stat. Ann. 483.250 (2004)

19a

N.H. Rev. Stat. Ann. §263:17 (2003)

N.J. Stat. Ann. §39:3-10 (2004)

N.M. Stat. Ann. §66-5-11 (2004)

N.Y. Veh. & Traf. Law §502(2)(b) (2003)

N.C. Gen. Stat. §20-10 (2004)

N.D. Cent. Code §39-06-08 (2003)

Ohio Rev. Code Ann. §4507.07 (Anderson

2003)

Okla. Stat. Ann. tit. 47, §6-107 (2003)

Or. Rev. Siat. §807.060(2)(a) (2001)

Pa. Stat. Ann. tit. 75, §1503(a)(7) (2003)

R.I. Gen. Laws §31-10-3 (2003)

S.C. Code. Ann. §56-1-100 (Law. Co-op.

2003)

S.D. Codified Laws §32-12-6 (2003)

Tenn. Code. Ann. §55-50-312 (2003)

Tex. Transp. Code Ann. §521.204 (2004)

Utah Code Ann. §53-3-211 (2003)

Vt. Stat. Ann. tit. 23, §607 (2003)

Va. Code Ann. §46.2-334(2003)

Wash. Rev. Code Ann. §46.20.100 (2004)

W. Va. Code §§ 17B-2-3 to 17B-2-3(a)

(2003)

Wis. Stat. Ann. §343.08 (2003)

Wyo. Stat. Ann. §31-7-112 (2003)

20a

APPENDIX G

Right to Purchase Pornographic Materials

Cumulative Totals by Age — 50 States & D.C.

2la

Totals (50 States and D.C.)

Age 16 17 18 No

Legislation

Number 1 4 45 l

STATE AGE CITATION

AL 18 Ala. Code §13A-12-200.5 (2003)

AK - No Legislation

AZ 18 Ariz. Rev. Stat. §13-3506 (2004)

AR 18 Ark. Code Ann. §5-68-502(2) (2003)

CA 18 Cal. Penal Code §313.1 (2004)

8) 18 Colo. Rev. Stat. §18-7-502 (2003)

CT 18 Conn. Gen. Stat. §53a-196 (2003)

DE 17 Del. Code Ann. tit. 11, §1365 (2004)

DC 17 D.C. Code Ann. §22-2001(b) (2003)

FL 18 Fla. Stat. Ann. §847.012 (2003)

GA 18 Ga. Code Ann. §16-12-103 (2002)

HI 16 Haw. Rev. Stat. §712-1215 (2003)

ID 18 Idaho Code §18-1513 (2003)

IL 18 720 Ill. Comp. Stat. 5/11-21 (2004)

IN 18 Ind. Code Ann. §35-49-3-3 (Michie 2004)

IA 18 lowa Code §728.2 (2003)

KS 18 Kan. Stat. Ann. §21-4301a (2003)

KY 18 Ky. Rev. Stat. Ann. §531.030 (Michie

2002)

LA 17 La. Rev. Stat. Ann. §14:91.11 (2004)

ME 18 Me. Rev. Stat. tit. 17, §2911 (2003)

MD 18 Md. Code Ann., Criminal Law §11-203

(2003)

MA 18 Mass. Ann. Laws ch. 272, §28 (Law. Co-

op. 2004)

MI 18 Mich. Comp. Laws Ann. §750.142 (West

2004)

MN 18 Minn. Stat. Ann. §617.293 (West 2004)

22a

Miss. Code Ann. §97-5-27 (2003)

MO 18 Mo. Ann. Stat. §753.040

(West 2003)

Mont. Code Ann. §45-8-206 (2003)

Neb. Rev. Stat. §28-208 (2003)

Nev. Rev. Stat. Ann. 201.265 (2003)

N.H. Rev. Stat. Ann. §571-B:2 (2003)

N.J. Stat. Ann. §2C:34-2(b) (2003)

N.M. Stat. Ann. §30-37-2 (2003)

N.Y. Penal Law §§ 235.21 to 235.22

(2004)

N.C. Gen. Stat. §19-13 (2003)

N.D. Cent. Code §12.1-27.1-03 (2003)

Ohio Rev. Code Ann. §2907.31 (West

2003)

Okla. Stat. Ann. tit. 21, §1040.76 (West

2003)

Or. Rev. Stat. §167.065 (2001)

18 Pa. Cons. Stat. Ann. §5903(a)(2) (West

2003)

R.I. Gen. Laws §11-31-10 (2003)

S.C. Code. Ann. §16-15-345 (Law. Co-op.

2003)

S.D. Codified Laws §22-24-28(2003)

Tenn. Code. Ann. §§ 39-17-911 and 39-

17-914 (2003)

Tex. Penal Code Ann. §43.24(b) (2003)

Utah Code Ann. §76-10-1206 (2003)

Vt. Stat. Ann. tit. 13, §§ 2802 to 2802(a)

(2004)

Va. Code Ann. §18.2-391(2003)

Wash. Rev. Code Ann. §9.68.080 (2004)

W. Va. Code §61-8A-2 (2003)

Wis. Stat. Ann. §944.21(4) (2003)

Wyo. Stat. Ann. §6-4-302(b)ii) (2003)

23a

APPENDIX H

Right to Participate in Legalized Gambling in any Form

Cumulative Totals by Age — 50 States & D.C.

0 —

Totals (50 States and D.C.)

Age 18 19 21 N

Number 42 1

STATE TYPE A

AL Pari-mutuel 19

Betting

AK -

AR sO Pari-mutuel_==‘(18

Betting

AZ Lottery 21

Pari-mutuel 21

Betting

CA Lottery 18

CO Lottery 18

Pari-mutuel 18

Casinos 21

CT Lottery 18

Pari-mutuel 18

DE Lottery 18

DC Lottery 18

FL Small Stakes 18

Lottery 18

GA Lottery 18

24a

islation or

i blin

CITATION

Ala. Code §11-65-44

(2003)

No Legislation

Arkansas Stat. §23-110-

405 (2003)

Ariz. Rev. Stat. Ann. §5-

515 (2003)

Ariz. Rev. Stat. Ann. §5-

112 (2003)

Cal. Govt. Code §8880-52

(2004)

Colo. Rev. Stat. Ann. §24-

35-214 (2004)

Colo. Rev. Stat. Ann. §12-

60-601 (2004)

Colo. Rev. Stat. Ann. §12-

47.1-809 (2004)

Conn. Gen. Stat. Ann §12-

813 (2003)

Conn. Gen. Stat. Ann. §12-

576 (2003)

Dela. Const. art. 2, §17

(2003)

D.C. Code §3-1334 (2003)

Fla. Stat. Ann. §849.085

(2003)

Fla. Stat. Ann. §24.1055

(2003)

Ga. Code Ann. §50-2710

(2003)

~ ID

Social

Gambling

Lottery

Casinos

Lottery

Pari-mutuel

Cc asinos

Lottery

Pari-mutuel

Lottery

Casinos

Lottery

Pari-mutuel

Lottery

Pari-mutuel

25a

Haw. Rev. Stat. 712-1231

(2003)

Ida. Stat. §67-7413 (2003)

20 Ill. Comp. Stat. Ann.

§1605/15 (2003)

230 Ill. Comp. Stat. Ann.

§10/18 (2003)

Ind. Code Ann. §4-30-11-3

(2003)

lowa Code Ann. §99E.18(2)

(2003)

lowa Code Ann.

§99D.11(7) (2003)

lowa Code §99F.9(5)

(2003)

Kan. Stat. Ann. §74-8708

(2002)

Kan. Stat. Ann. §74-8839

(2002)

Ky. Rev. Stat. Ann.

§154A.990 (2003)

La. Rev. Stat. §47:9025

(2003)

La. Rev. Stat. §27:260

(2003)

Me. Rev. Stat. Ann. tit. 8,

§374 (2003)

Me. Rev. Stat. Ann. tit 8,

§275-D (2003)

Md. State Govt. §9-124

(2004)

Mass. Gen. Laws Ann. ch.

10, §24 (2004)

Mass. Gen. Laws Ann. ch.

128A, §10 (2004)

Lottery

Casinos

Lottery

Pari-mutuel

Casinos

Generally

Lottery

Generally

Lottery

Pari-mutuel

Lottery

Pari-mutuel

Casinos

Lottery

Casinos

Lottery

26a

Mich. Comp. Laws Ann.

§432.29 (2003)

Minn. Stat. Ann. §349A.12

(2003)

Miss. Code Ann. §75-76-

155 (2003)

Mo. Ann. Stat. §313.280

(2003)

Mo. Ann. Stat. §313.670

(2003)

Mo. Ann. Stat. §313.817

(2003)

Mont. Code Ann. §23-5-

158 (2003)

Neb. Rev. Stat. §9-430

(2003)

Nev. Rev. Stat. §463.350

(2003)

N.H. Rev. Stat. §287-F:8

(2003)

N.H. Rev. Stat. §284-33

(2003)

N.J. Stat. Ann. §5:9-15

(2003)

N.J. Stat. Ann. §5:5-65

(2003)

N.J. Stat. Ann. §5:12-

i 19(2003)

N.M. Stat. Ann. §6-24-15

(2003)

N.M. Stat. Ann. §11-13-1

(2003)

N.Y. Tax Law §1610

(2003)

No Legislation

Lottery

Pari-mutuel

Lottery

Pari-mutuel

Lottery

Pari-mutuel

Lottery

Pari-mutuel

Casinos

Pari-mutuel

Lottery

Pari-mutuel

Lottery

Pari-mutuel

27a

N.D. Cent. Code §53-12-24

(2003)

Ohio Rev. Code Ann.

§3770.08 (2003)

Okla. Stat. Ann. tit. 3A,

§208.4 (2003)

Or. Rev. Stat. §461.600

(2001)

Or. Rev. Stat. §462.190

(2001)

Pa. Stat. Ann. tit. 72,

§3761-309 (2003)

R.I. Gen. Laws Ann. §42-

61-9 (2002)

R.I. Gen. Laws Ann.-§41-4-

2 (2002)

S.C. Code Laws Ann. §59-

150-210 (2003)

S.D. Codified Laws §42-

7A-32 (2003)

S.D. Codified Laws §42-7-

76 (2003)

S.D. Codified Laws §42-

7B-35 (2003)

Tenn. Code Ann. §4-36-310

(2003)

Tex. Govt. Code Ann.

§466.3051 (2003)

Gambling Illegal

Vt. Stat. Ann. tit. 31, §661

(2003)

Vt. Stat. Ann. tit. 31, §613

(2003)

Va. Ann. Code §58.1-4015

(2003)

Va. Ann. Code §59.1-403

Lottery

Pari-mutuel

28a

29a

Wash. Rev. Code Ann. APPENDIX I

§67.70.120 (2004) Right to Patronize Pool Halls

W.Va. Code §29-22-11

(2003)

i" Ann. §565.17 Cumulative Totals by Age -- 50 States & D.C. |

Wyo. Stat §11-25-109

(2003)

30a

Totals (50 States and D.C.)

Numbers 3 2 41 35

STATE AGE CITATION

AL 19 Ala. Code §34-6-9 (2003)

AK - No Legislation

AZ - No Legislation

AR 18 Ark. Stat. Ann. §5-27-224(e) (2003)

CA - No Legislation

CO - No Legislation

CT 18 Conn. Gen. Stat. §53-28] (Repealed 1994)

DE - No Legislation

DC - No Legislation

FL 18 Fla. Stat. Ann. §849.04 (2003)

GA - No Legislation

HI : No Legislation

ID - No Legislation

IL - No Legislation

IN - No Legislation

1A - No Legislation

KS - No Legislation

KY 18 Ky. Rev. Stat. Ann. §436.320 (2003)

LA 18 La. Rev. Stat. Ann. §26.90 (2003)

ME 16 Me. Rev. Stat. Ann. tit. 26, §773 (2003)

MD - No Legislation

MA 18 Mass. Gen. Laws Ann. ch.140, §179

(2003)

MI - No Legislation

MN - No Legislation

MS 18 Miss. Code Ann. §97-5-11 (2003)

MO 16 Mo. Ann. Stat. §318.090 (2003)

MT - No Legislation

NE - No Legislation

NV - No Legislation

NH - No Legislation

3la

No Legislation

N.Y. Gen. Bus. Law §465 (Repealed 1988)

N.C. Gen. Stat. §14-317 (2003) (minors

may not enter premises where alcohol

sold)

No Legislation

Pa. Stat. Ann. tit. 18, §7105 (2003)

R.I. Gen. Laws §5-2-13 (2002)

S.C. Code Ann. §20-7-350 (Repealed

1996)

No Legislation

Wyo. Stat. §33-6-108(b) (2003)

32a

APPENDIX J

Right to Pawn Property or to Sell Junk or

Precious Metals to Dealers

50 States & D.C.

Cumulative Totals by Age --.

33a

Totals (50 States and D.C.)

Ages 16 18 19 NA

Numbers 3 2 1 22

STATE AGE CITATION

AL 19 Ala. Code §5-19A-8 (2003)

AK - No Legislation

AZ 16 Ariz. Rev. Stat. Ann. §44-1627 (Repealed

1988)

AR - No Legislation

CA 16 Cal. Fin. Code §21207 (2004)

CO 18 Colo. Rev. Stat. §12-56-104 (2003)

CT 18 Conn. Gen. Stat. §21-47 (2003)

DE 18 Del. Code Ann. tit. 24, §2312 (2003)

DC - No Legislation

FL 18 Fl. Stat. Ann. §743.07 (2003)

GA - No Legislation

HL - No Legislation

ID - No Legislation

IL 18 Ill. Comp. Stat. Ann. ch. 23, para. 2366

(2003)

IN 18 Ind. Code Ann. §28-7-5-36 (2003)

IA - No Legislation

KS 18 Kan. Stat. Ann. §16-717 (2002)

KY 18 Ky. Rev. Stat. Ann. §226.030 (2003)

LA - No Legislation

ME - No Legislation

MD - No Legislation

MA - No Legislation

MI 18 Mich. Comp. Laws Ann. §750.137 (2003)

MN 18 Minn. Stat. Ann. §609.81 (Repealed 1996)

MS - No Legislation

MO 18 Mo. Ann. Stat. §568.070 (2003)

MT 18 Mont. Code Ann. §45-5-623 (2003)

NE 18 Neb. Rev. Stat. §69-210 (2003)

NV 18 Nev. Rev. Stat. §647.140 (2003)

34a

N.H. Rev. Stat. Ann. §398:2 (2003)

N.J. Stat. Ann. §45:22-31 (2003)

N.M. Stat. Ann. §56-12-14 (2003)

No Legislation

Ohio Rev. Code Ann. §4727.10 (2003)

Okla. Stat. Ann. tit. 59, §1511 (2003)

Or. Rev. Stat. §726.270 (2001)

Pa. Stat. Ann. tit. 63, §281-29 (2003)

R.I. Gen. Laws §19-26-12 (2003)

No Legislation

Tex. Fin. Code §371.176 (2003)

No Legislation

Vt. Stat. Ann. tit. 9, §3870 (2003)

No Legislation

Wash. Rev. Code Ann. §19.60.066(3)

(2004)

No Legislation

Wis. Stat. Ann. §948.63 (2003)

No Legislation

aw)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.