Young enough to die? Executing juvenile offenders in violation of international law.

• Author: Carlsten, Annika K.

There is now an almost global consensus that people who commit crimes when under 18 should not be subjected to the death penalty. This is not an attempt to excuse violent juvenile crime, or belittle the suffering of its victims and their families, but a recognition that children are not yet fully mature--hence not fully responsible for their actions--and that the possibilities for rehabilitation of a child or adolescent are greater than for adults. Indeed, international standards see the ban on the death penalty against people who were under 18 at the time of the offense to be such a fundamental safeguard that it may never be suspended, even in times of war or internal conflict. However, the US authorities seem to believe that juveniles in the USA are different from their counterparts in the rest of the world and should be denied this human right. (1)

INTRODUCTION

In the first year of the `new millennium', in the midst of an atmosphere of progress and new beginnings, the United States instead continued a tradition it has practiced virtually nonstop for over 350 years. At a steady pace, the United States executed eighty-five individuals: eighty-three men and two women. (2) This brisk rate of executions averages one person killed every four days. `Execution friendly' Texas reached a record high- forty individuals, including a `rare' double execution when Texas killed two men by lethal injection just one hour apart. (3) To a growing number of Americans, these executions are, in and of themselves, a violation of the basic human right to life. Four of these eighty-five executions, however, not only offend people's sense of morality and compassion; they are also a violation of international law. In direct violation of the spirit and language of numerous international treaties and conventions, these individuals were executed for crimes they committed as children.

This article will examine the United States' continued practice of executing juvenile offenders in spite of numerous international treaties that forbid the practice, and growing international condemnation of the United States for doing so. Section I begins with an overview of the history of juvenile executions in the United States, and relevant U.S. case law governing the practice. Section II details the international perspective, with an emphasis on the various treaties that forbid the execution of juvenile offenders. Section III examines current international objections, recent executions of juvenile offenders, and contemporary legal challenges based upon relevant principles of international law. The article concludes with observations on the current status of the death penalty in the United States, and a discussion of various strategies which could lead to recognition of the death penalty as a crucial human rights concern, and in turn, to absolute and universal abolition.

JUVENILE EXECUTIONS IN THE UNITED STATES

At this time of unprecedented growth and prosperity, the U.S. finds itself in an uncomfortable position in the global human rights debate. While aggressively criticizing the human rights records of countries such as China, Cuba, and Afghanistan, the U.S. also must defend its continued and expanding use of the death penalty. In direct opposition to the universal status quo, the United States remains one of only five countries still known to execute people for crimes they committed while under the age of eighteen. (4) As the saying goes, `politics makes strange bedfellows'. The, other four countries are hardly ones that the U.S. traditionally aligns itself with in any other policy area. These countries (Iran; Iraq; Saudi Arabia; and Nigeria) are the very countries the United States often tries to portray as uncivilized, barbaric, and lacking in the trappings of a functioning democracy. (5) Moreover, the number of nations willing to engage in the practice is steadily shrinking. Yemen, which previously allowed the execution of juvenile offenders, abandoned the practice in 1998. (6) A sixth country, Pakistan, recently announced that they would no longer sentence juveniles to death. (7) In Pakistan, the announcement came from leaders of the military government. (8) Even they recognized the inherent distinction of a child from an adult, and the need for a separate juvenile justice system in which governments simply will not kill their own children. (9)

Despite these changes and growing opposition, the United States remains adamant in its `right' to continue this practice. The U.S. has now executed more individuals in the last ten years for crimes they committed as children than any other country. (10) Since 1990, the US has executed seventeen people for juvenile crimes. The other five countries combined have executed a documented nine individuals. (11) The U.S. is also the only country in the world known to have executed a juvenile offender since 1997. (12)

As of July 2000, there were seventy-seven people living on Death Row in the United States for acts they committed while under the age of eighteen. (13) Since 1973, at least 196 children have been sentenced to death. (14) Of the thirty-nine states authorizing the death penalty, twenty-four currently have legislation allowing prosecutors to seek the execution of a minor who commits murder. (15) In nineteen of these states, the defendant can be as young as sixteen. (16)

Sixteen was designated as the minimum age of eligibility for death by two Supreme Court cases in the late 1980's, Thompson v. Oklahoma (17) & Stanford v. Kentucky (18). In Thompson, the Supreme Court held that the imposition of the death penalty on children under the age of sixteen was unconstitutional under the Eighth Amendment ban on `cruel and unusual punishment'. (19) Under a legal standard first pronounced in Trop v. Dulles, questions of whether a particular punishment violates the Eighth Amendment are answered in light of "the evolving standards of decency that mark the progress of a maturing society." (20) According to Justice Stevens, "it would offend civilized standards of decency to execute a person who was less than sixteen years old at the time of his or her offense." (21) In reaching this conclusion, the Court noted, "the importance of `the experience of mankind, as well as the long history of our law, recognizing that there are differences which must be accommodated in determining the rights and duties of children as compared with those of adults'." (22) Considering these factors, the Court concluded that, "such a young person is not capable of acting with the degree of culpability that can justify the ultimate penalty. "(23)

The Court apparently did feel, however, that a sixteen or seventeen-year-old could be capable of such a `degree of culpability'. (24) In Stanford, brought the following year, the Court affirmed the use of the death penalty on individuals who were at least sixteen at the time of their offense. (25) Relying on the fact that a majority of states that permit the death penalty had not prohibited its use for sixteen and seventeen year old offenders, Justice Scalia stated that there was no national consensus against such executions. (26) In his words, the Court could, "discern neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age. Accordingly ... such punishment does not offend the Eighth Amendment's prohibition against cruel and unusual punishment." (27)

As a result of this decision, states which fail to specify a minimum age for the death penalty, or statutorily allow the death penalty for offenders younger than sixteen, may only pursue the death penalty for anyone sixteen or older. (28)

This does not mean, however, that the minimum age requirement could not drop in the future. As a result of recent and highly publicized acts of juvenile violence, various politicians have advocated the use of the death penalty for children at younger and younger ages. New Mexico Governor Gary Johnson proposed use of the death penalty on thirteen-year-olds. (29) California Governor Pete Wilson once recommended capital punishment for fourteen-year-old offenders. (30) One Texas lawmaker, Rep. Jim Pitts of Waxahachie, went even further and advocated the imposition of the death penalty on children as young as eleven. (31) Shortly after the fatal school shootings in Jonesboro, Arkansas, Pitts announced he would introduce legislation lowering the minimum age to eleven in capital murder cases seeking the death penalty. (32) The legislation was unsuccessful, and undoubtedly would have faced Constitutional challenges, but it acts as testimony to a growing willingness to execute younger and younger offenders.

California took more aggressive steps to expand the use of the death penalty. "Proposition 21", a recent ballot measure in California that succeeded in the 1999 general elections, requires adult trials for anyone fourteen or older who is charged with murder, and establishes the death penalty for gang-related murders. (33) California law currently prohibits the execution of juvenile offenders. However, this practice could change due to growing public concern over perceived youth violence. (34) Proposition 21 has been embroiled in numerous legal challenges, with varying levels of success. (35) Future attempts by the state legislature to lower the minimum age, possibly to fourteen or fifteen, would lead to inevitable constitutional challenges. (36) It is not inconceivable that such challenges could result in a subsequent U.S. Supreme Court ruling lowering the minimum age of eligibility. (37)

INTERNATIONAL TREATIES AND THE INTERNATIONAL LAW PERSPECTIVE

Since the first juvenile execution in 1642, 361 people have been put to death in the United States for crimes they committed when they were children; seventeen since the reinstatement of the death penalty in 1976. (38) These executions have not gone unnoticed by the...