Duquesne University Law Review, Winter, 2004 version 6 By: Lori Edwards Critique of the Juvenile Death Penalty in the United States: A Global Perspective I. Introduction 1. Since 1990, only seven countries in the world have been documented as executing juvenile offenders: Iran, Nigeria, Pakistan, Saudi Arabia, Yemen, the Democratic Republic of Congo, and the United States of America. Yemen has now outlawed the executions of juveniles and the President of Pakistan, in accordance with legislation passed in 2000, commuted the death sentences of all death row juvenile offenders. Of the remaining five countries that execute childhood offenders, the United States has carried out the largest number of executions. This raises the question of whether the United States is violating international treaties to which it is a party and other treaties that, although not a party to, are accepted by many of the world's nations. II. The United States' Stance, International Treaties and the World View 2. Applying the death penalty to juvenile offenders is a concept that is older than the Constitution of the United States. The first documented juvenile execution was that of Thomas Graunger, in 1642, in Plymouth Colony, Massachusetts. Since then, 366 juvenile offenders have been executed in the United States and of these, twenty-two were executed between 1973 and 2003. While the United States continues its policy of sentencing juveniles to the death penalty, international standards have moved away from the death penalty in favor of protection for those under the age of eighteen. The international community's change in attitude was gradual; it began in 1948 with the Universal Declaration of Human Rights. Signed in 1948 by the United States, the document's preamble 1 states, "member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms." The Declaration specifically mandates in Article 5 that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." While the death penalty is not directly referred to in the Declaration, the Declaration would later become acknowledged as one of the first documents to recognize universal rights and to develop a plan to implement those rights among all member states. 3. In 1977, two additional Protocols were added to the Geneva Convention of 12 August 1949. The First Additional Protocol, Relating to the Protection of Victims of International Armed Conflicts directly 1 A preamble is an introduction or explanation of what is to follow. It is the key of a statute, to open the minds to the wrongs which are to be remedied, and the objectives which are to be accomplished by the provisions of the statutes.
2 addressed the execution of juveniles. It stated that the death penalty for an offense related to armed conflict would not be carried out on individuals under the age of eighteen at the time of the act. The Second Additional Protocol, Relating to the Protection of Victims of Non-International Armed Conflicts, stated that individuals who were not eighteen at the time of the offense, who were pregnant, or who were mothers of young children would not receive the death penalty. While the United States was the motivating force behind the first Geneva Convention in 1864 and signed its multiple successive treaties, the United States has not ratified the two protocols from 1977. 4. The next significant agreement, which went into effect in 1978, was the American Convention on Human Rights. It contained a statement that a person under 18 years of age or over 70 or any pregnant woman would not receive the death penalty. The United States signed the Convention but never ratified it. 5. In 1984, the United Nations signed the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, which represents the strong agreement that existed among nations regarding the minimization, if not the abolition, of the death penalty. However, since the document was not voted upon, it is not legally binding. The document states that any person under the age of eighteen at the time of the crime will not be sentenced to death and such a penalty will not be used on pregnant women, new mothers, or those who have become insane. 6. In 1990, the Convention on the Rights of the Child came into force. It included a statement that children under the age of eighteen would not be sentenced to capital punishment or life imprisonment without the possibility of release. At least 191 nations ratified this United Nations document with the exception of two countries, Somalia and the United States. III. The United States' Reservation to International Views on Juvenile Capital Punishment 7. While the United States may not be a party to many of the treaties that contain prohibitions on the execution of juveniles, it is a member of the International Covenant on Civil and Political Rights ["ICCPR"]. Before the United States ratified the ICCPR in 1992, it entered five reservations. Among them was a reservation to Article 6, which prohibited the execution of persons under eighteen. This reservation is contrary to the terms of the ICCPR because Article 4 prohibits derogations 2 from Article 6. The United States also included a claim of its right to try juveniles as adults in certain circumstances. Of the 144 signatories to the treaty, the United States was the only nation that entered a reservation to Article 6. This 2 derogations: the partial taking away of the effectiveness of a law; a partial repeal or abolition of a law. To derogate from a law is to enact something which is contrary to it, to impair it.
3 resulted in eleven foreign nations filing complaints against the United States with the Human Rights Commission. IV. Determining International Law 8. Treaties are an important tool for comparing the policy of the United States with the world-view because they are sources that help to determine whether domestic laws are in accordance with international treaties and policies. In deciding a juvenile death penalty case, American constitutional law may provide a basis for appeal, particularly the Eight Amendment dealing with cruel and unusual punishment, but international law may also be introduced. The three primary sources of international law are treaties, customary international law, and jus cogens 3 norms. Jus Cogens are "those [treaties] from which no derogation can be justified and which can only be changed by a subsequent norm of the same character." The United States Supreme Court, as early as 1804, stated, "an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains." It is clear that this ideology has filtered down to the lower courts as exemplified by a 1980 opinion that stated that the United States is a nation " which, in its relations with foreign states, is bound both to observe and accept norms of international law." 9. The Supreme Court has employed international law as a basis for deciding cases. Therefore, the issue of whether or not the abolition of the juvenile death penalty has become customary and a jus cogens norm is raised. After evaluating Protocol I and Protocol II to the Geneva Convention, the American Convention on Human Rights, the Safeguards Guaranteeing the Protection of the Rights of those Facing the Death Penalty, the Covenant on the Rights of the Child, and the International Covenant on Civil and Political Rights, a strong argument exists that the international norm no longer supports the execution of juvenile offenders. V. United States Case Law 10. The issue of whether the United States is fulfilling its obligations to the treaties it agreed to was raised in Domingues v. Nevada. When Domingues was seventeen, he was convicted of murdering a woman and her four year-old son, a crime Domingues committed when he was sixteen. Following his sentence, he filed a motion for a correction of illegal sentence arguing that the "execution of a juvenile offender violates an international treaty ratified by the United States and violates customary international 3 Jus cogens refer to the principles of international law which are so fundamental that no nation may ignore them or attempt to contract out of them through treaties. For example, genocide and participating in a slave trade are thought to be jus cogens. According to this author, executing juveniles falls into this category. Note the definition in the text.
4 law." The treaty Domingues was referring to was the International Covenant on Civil and Political Rights ["ICCPR"]. The Supreme Court of Nevada held that since the United States entered a reservation to the article which forbids the sentencing of juveniles to the death penalty, Domingues was not illegally sentenced. However, the opinion did not discuss whether sentencing juveniles to the death penalty was contrary to international law. 11. Judge Rose noted in his dissenting opinion that since Article 4 of the ICCPR prohibits derogating the prohibition on the execution of those under eighteen; the real issue is whether or not the United States is a party to the treaty. If the reservation it added to Article 6 was essential to the United States' acceptance of the entire treaty, the ratification may be null. However, if evidence exists that the United States intended to accept the treaty as a whole, it could be bound by all of the provisions regardless of the reservation. As a result, Justice Rose would reverse the denial of Domingues' motion by the district court and remand the case for a hearing on the impact of the ICCPR on juvenile sentencing. 12. The Supreme Court of Alabama in Ex parte 4 Pressley also examined the issue of whether the United States' reservation to the ICCPR was invalid. Pressley was sentenced to death for murdering two individuals during a robbery when he was under the age of eighteen. On appeal, he raised the issue of whether international law and international treaties prohibit the execution of juvenile offenders. The court was not convinced that the Senate's reservation to the ICCPR was illegal. The opinion further noted that state laws permitting the death penalty for those under eighteen have withstood constitutional examination despite the different treaties. The court cited cases that were based on constitutional law rather than international law. 13. The first case referenced in Ex parte Pressley was Stanford v. Kentucky which held that sixteen and seventeen year-old individuals could be sentenced to death without violating the Eighth Amendment's bar on cruel and unusual punishment. Kevin Stanford was 17 years of age at the time of his arrest, on January 7, 1981, for murder, robbery, rape and theft of Baerbel Poore, a twenty-year old gas station attendant and mother. Stanford received the death penalty. Four Justices: Brennan, Marshall, Blackmun and Stevens, dissented. In their opinion, the execution of juvenile offenders violates contemporary standards of decency and is seen as unacceptable in the international community. 14. Justice Scalia delivered the majority opinion of the Court, that capital punishment for a crime committed at 16 or 17 years of age does not constitute cruel and unusual punishment under the Eighth Amendment. A violation of the Eighth Amendment depends on whether it is one of "those modes or acts 4 The phrase ex parte means "by or for one party". An ex parte application is made to protect privacy. It is used in cases involving juveniles so that the case is sealed and anonymity is maintained.
5 of punishment... considered cruel and unusual at the time that the Bill of Rights was adopted 5 or is contrary to the "evolving standards of decency that mark the progress of a maturing society." Accordingly, this sentence would not have been cruel and unusual in the 18th century, since, at that time, 14 year olds were legally responsible for their actions. 15. Secondly, Judge Scalia admonished the Court not to substitute its own judgment in outlawing juvenile executions for that of the American people. The primary and most reliable evidence of the people's will is the pattern of federal and state laws which do not present a national consensus against the execution of 16- and 17-year-old offenders. Of the 37 States that permit capital punishment, only 15 states decline to impose it on 16-year-olds and 12 states on 17-year-olds. 16. With regard to the issue of maturity between adults and juveniles, Justice Scalia concluded that maturity is neither universal nor significant enough to justify a rule excluding juveniles from the death penalty. On the issue of capital punishment, individualized consideration is a constitutional requirement. The age of responsibility for committing a capital crime should not be compared to the minimum legal age for drinking, driving and voting 6. 17. The second case cited in Ex parte Pressley, and based on the Eighth Amendment, is Thompson v. Oklahoma, a precedent to Stanford v. Kentucky. The Supreme Court held that the Eighth and Fourteenth Amendment forbid the execution of an individual who was sixteen years of age or younger at the time the crime was committed. The opinion stated that "it would offend civilized standards of decency to execute a person... less than 16 years old at the time of his or her offense which is consistent with the views... expressed by... other nations that share our Anglo-American heritage, and by the leading members of the Western European community." 18. Reviewing these two Supreme Court cases, Stanford v Kentucky and Thompson v Oklahoma, it appears that the cases which the Supreme Court of Alabama relied on do not actually support its holding in Pressley. Not only are the holdings in Stanford and Thompson based on constitutional law, but also the remarks made by the Supreme Court relating to international law appear to reject juvenile capital punishment rather than support its continuation. 19. One of the more recent cases that raised the issue of Article 6 in the ICCPR was Servin v. Nevada. Servin was sentenced to death by lethal injection for the murder and robbery of a woman, a crime he committed when he was sixteen years old. While the Supreme Court of Nevada upheld its decision in Domingues, it reversed Servin's death sentence based upon a state statute that required the court to con- 5 The 10 amendments in the Bill of Rights were added to the U.S. Constitution on December 15, 1791. 6 In 1971 The Unites States ratified the 26 th Amendment to the Constitution granting the right to vote to 18 year olds. The minimum driving age is 16.
6 sider Servin's age at the time of the offense as a mitigating factor, which would make the death penalty excessive punishment. Servin was re-sentenced to two consecutive life sentences without the possibility of parole. VI. The United States May Review its Stance 20. In 2002, three United States Supreme Court cases suggest that the future of the juvenile death penalty rests on shaky grounds. In June, the Supreme Court decided Atkins v. Virginia. Atkins was convicted of abduction, armed robbery and capital murder and sentenced to death. On appeal, Atkins argued that he is "mentally retarded" and, therefore, could not be sentenced to death. The United States Supreme Court, in a 6-3 decision, overruled the Supreme Court of Virginia.. Referring to the Eighth Amendment, the court held that sentencing a mentally retarded criminal to the death penalty is excessive punishment. In the Court's reasoning, there are references to mental capacity and childlike qualities which could be referred to when deciding future juvenile death penalty cases. 21. Prior to this decision, in Penry v. Lynaugh, (1989), the Court held that executing persons with mental retardation was not a violation of the Eighth Amendment because a "national consensus" had not developed against executing those with mental retardation. At the time, only two states prohibited such executions. Since then, 16 more states and the federal government have enacted laws prohibiting the execution of the mentally retarded. 22. In the second case, Patterson v. Texas, a divided United States Supreme Court denied Patterson a stay of execution for the capital murder he committed when he was seventeen years old. Three Supreme Court Justices - Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer - dissented, stating that because of the consensus that exists among the states and in the international community against the execution of a juvenile offender, the Court should review its position on this issue. Justice Stevens, in his dissenting opinion, stated his belief that the Eighth Amendment prohibits juvenile death penalty. 23. Finally, in In re 7 Stanford, the United States Supreme Court denied an application for a writ of habeas corpus requesting the Court to hold his execution unconstitutional since he was under the age of eighteen when he committed the offense. A bare majority of the Court had rejected that submission 13 years earlier, in Stanford v. Kentucky (1989). Again, the Court was split in its decision. Justices Stevens, Souter, Ginsburg and Breyer believed that, given their recent decision in Atkins and the bare majority of the Court that supported the holding in the 1989 Stanford case (that the Eighth Amendment does not 7 In re is used for a proceeding where one party makes an application to the court.the English translation is "in
7 VII. The Current Status of Juvenile Death Row Inmates 24. In the United States, there are currently seventy-eight individuals on death row who received death sentences for crimes they committed when they were juveniles. While the international community continues to require a statement in its treaties and in its documents that capital punishment for juveniles will not be tolerated, the United States maintains its policy of sentencing juveniles to the death penalty. The Supreme Court has stated, through a bare majority, that the juvenile death penalty is constitutional based on the Eighth Amendment, and the Supreme Court has never based its decision on international law. In light of the Court's recent decision in Atkins, the issue of whether the United States will recognize a prohibition against the juvenile death penalty is due. The question is, will the court strike down the juvenile death penalty on Eighth Amendment grounds, (by making an analogy to its holding in Atkins), or will it strike it down by showing deference to international norms and treaties? VIII. Conclusion 25. Given the standards in Protocol I and Protocol II to the Geneva Convention, the American Convention on Human Rights, the Safeguards Guaranteeing the Protection of the Rights of those Facing the Death Penalty, the Covenant on the Rights of the Child and the International Covenant on Civil and Political Rights, it is clear that international law and the jus cogens are opposed to the juvenile death penalty. 26. As the world moves away from the acceptance of capital punishment for juvenile offenders, states may do likewise in their legislation. America currently has forty death penalty jurisdictions. Eighteen of those jurisdictions mandate a minimum age of eighteen at the time the offense was committed before the penalty can be imposed. Five jurisdictions have chosen the age of seventeen, and the other seventeen jurisdictions use the age of sixteen. Thirteen jurisdictions do not apply the death penalty at all. In reality, it is becoming increasingly clear that if the juvenile death penalty is declared unconstitutional, it will not be because of current international standards. Rather, current case law indicates it will be overturned on Eighth Amendment grounds. The president of the American Bar Association, Alfred P. Carlton, Jr., states that: the matter of". It is sometimes used instead of the Latin ex parte. In re Stanford is the name of the case.
" Executing child offenders is inconsistent with these concepts (of common decency and fundamental justice). This does not suggest that teenagers should not face punishment for violating society's laws. It does mean that they should not pay for their mistakes with their lives.... We dare not hold children accountable for their actions to the same degree as we do adults. To do so serves no principle purpose and only demeans our system of justice." IX. Addendum: The Minimum Age for Eligibility for the Death Penalty is 18 8 27. On March 1, 2005, by a vote of 5-4 in the case of Roper v. Simmons, the U.S. Supreme Court held that the Eighth and Fourteenth Amendments forbid the execution of offenders who were juveniles when their crimes were committed. At last, the court overruled its decision in Stanford (1989). 28. The Court compared the executing of the mentally retarded 8 to executing juvenile offenders. In addition, the Court explained that the main criterion for determining whether a particular punishment violates society s evolving standards of decency is objective evidence of a national consensus as expressed by legislative enactments and jury practices. The rejection of the juvenile death penalty in the majority of states, the infrequent use of the punishment even where it remains on the books 9, and the consistent trend toward the abolition of the juvenile death penalty demonstrated a national consensus against the practice. The Court determined that today our society views juveniles as vulnerable to influence and immaturity. Justice Kennedy, writing for the majority, said: "Retribution is not proportional if the law s most severe penalty is imposed on one whose culpability or blameworthiness is diminished by reason of youth and immaturity". 29. The Court further noted in Roper v. Simmons (2002) that the execution of juvenile offenders violated several international treaties, including the United Nations Convention on the Rights of the Child and the International Covenant on Civil and Political Rights and stated that the overwhelming weight of international opinion against the juvenile death penalty provides confirmation for the Court s own conclusion that the death penalty is disproportional punishment for juvenile offenders under the age of 18. 30. The Court s ruling affects 72 juvenile offenders in 12 states. 8 See Penry v. Lynaugh, (1989) and Atkins v. Virginia (2002) in Section V1 of this text. 9 Stanford was not executed. Kentucky Governor Paul E. Patton commuted his sentence to life without parole. He said this decision was based solely on Stanford's age at the time of the crime and reflects how public sentiment has shifted since the Supreme Court's 1989 ruling in the Stanford case.