Executing Juvenile Offenders: a Reexamination of Stanford v. Kentucky in Light of Atkins v. Virginia

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 20 No. 2

Executing Juvenile Offenders:
A Reexamination of Stanford v. Kentucky in light of Atkins v. Virginia

Bryan Graff

Introduction

The body of three-year-old Ollie Brown was found in 1995 alongside those of her mother and her sister.[1] The ensuing murder investigation led to the arrest and the conviction of Toronto Patterson, a relative of all three victims.[2] The State of Texas executed Patterson on August 28, 2002, after the United States Supreme Court denied his application for stay of execution. [3] At the time of the murders, Patterson was only 17 years old.[4]

The Court's denial of Patterson's application for stay of execution was not without controversy; three Supreme Court Justices dissented, which is uncommon in these rulings.[5] The three dissenting Justices were Stevens, Ginsburg, and Breyer.[6]

Justice Stevens believed that the Eighth Amendment prohibited the execution of persons who committed their relevant crimes when under the age of 18.[7] Justice Stevens had previously joined Justice Brennan's dissenting opinion in Stanford v. Kentucky,[8] where the Court upheld the constitutionality of imposing the death penalty on 16- and 17-year-old murderers.[9] While dissenting from the denial of Patterson's stay of execution, Justice Stevens wrote:

[T]he issue [of capital punishment for teenage offenders] has been the subject of further debate and discussion [since the Stanford decision] both in this country and in other civilized nations. Given the apparent consensus that exists among the [s]tates and in the international community . . . I think it would be appropriate for the Court to revisit the issue at the earliest opportunity.[10]

Justices Ginsburg and Breyer agreed, adding that the Court's decision last term in Atkins v. Virginia[11] "made it tenable for a petitioner to urge reconsideration of Stanford v. Kentucky."[12]

In Atkins, the Court overturned its prior decision in Penry v. Lynaugh[13] and held that applying capital punishment to mentally retarded offenders violated the Eighth Amendment.[14] Central to Justice Ginsburg's assertion that the Court's decision in Atkins made it "tenable" to reconsider the Stanford holding is that many traits of mildly mentally retarded offenders, such as limitations in reasoning, judgment, and impulse control, apply with similar force to juvenile offenders. [15] Notably, the issues of the constitutionality of executing juvenile offenders and mentally retarded offenders have "moved in tandem in the past."[16] The Supreme Court decided Stanford v. Kentucky and Penry v. Lynaugh on the same day in 1989.[17] A re-examination of the Stanford decision is also particularly appropriate at this time to resolve the Court's apparent split in methodology used to answer Eighth Amendment questions.[18]

However, the Supreme Court dismissed its most recent opportunity to revisit the issue.[19] Justice Stevens once again dissented from the Court's denial of the petition for writ of habeas corpus, this time joined by Justices Breyer, Ginsburg, and Souter.[20] Justice Stevens wrote that "[t]he practice of executing such offenders is a relic of the past and is inconsistent with evolving standards of decency in a civilized society"; he went on to describe these executions as "shameful."[21]

Part I of this Note briefly reviews the history of death penalty jurisprudence in the United States as applied to juvenile offenders.[22] Part II analyzes the Supreme Court's methodology in applying the Eighth Amendment to death penalty controversies.[23] Finally, Part III discusses whether the United States' current tolerance of executing minors is coming to an end in light of the Court's analysis and decision in Atkins.[24] This Note concludes that, applying the Court's methodology in Atkins, the execution of juvenile offenders violates the Eighth Amendment.[25]

I. Juvenile Death Penalty Jurisprudence in the United States

At common law, all homicides carried the death penalty. [26] However, children received some special treatment and protection from this harsh rule. [27] Nonetheless, if the government was able to overcome a rebuttable presumption that the child lacked criminal intent, it could, at least theoretically, execute a child over the age of seven. [28] While no child as young as seven has been executed under the authority of the United States Constitution, young children were in no way immune to the possibility of capital punishment.[29] Thomas Graunger was executed in 1642, in what later became the State of Massachusetts, making him the first known person under the age of 18 to be executed on "American soil." [30] Over 350 children have been executed in the United States since that time.[31]

In the ensuing years, the American colonies, and later the states, attempted to "develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual."[32] Towards this end, the legal system began separating murder into various "degrees," with only the most severe, or first degree, warranting the death penalty.[33] Near the end of the 19th century, the legal system also began to consider the uniqueness of juvenile offenders, leading some states to create a separate system for children that stressed rehabilitation over punishment.[34] The movement for a separate juvenile justice system proved to be influential, and today juvenile justice remains largely committed to rehabilitating young offenders.[35] However, some states remove certain violent offenses "such as murder, manslaughter, rape, and robbery" from the juvenile justice system's reach.[36] As a result, these states can subject a child accused of such an offense to more severe adult penalties, including capital punishment.[37] Additionally, in 13 states, the juvenile courts' jurisdiction does not extend to all children under 18 years of age; instead, the maximum age is set at 16 or 17. [38]

The United States Supreme Court brought the death penalty in this country to a temporary halt, for adults as well as children, in Furman v. Georgia.[39] In his concurring opinion in Furman, Justice Brennan stated that death penalty sentencing, as courts were imposing it, lacked sufficient guidelines and therefore violated the Eighth and Fourteenth Amendments.[40] The "substantial risk that [the death penalty] would be inflicted in an arbitrary and capricious manner" concerned the Court.[41] Significantly, however, the Court refrained from holding the death penalty unconstitutional per se, leading a majority of states to alter their death penalty statutes so that the statutes complied with Furman's mandates. [42] Less than five years later, in Gregg v. Georgia,[43] the Court upheld an altered state death penalty statute and reaffirmed that capital punishment did not violate the Eighth Amendment per se.[44]

The Supreme Court directly addressed the constitutionality of the death penalty as applied to juvenile offenders in Thompson v. Oklahoma.[45] There, the Court vacated the death sentence of an Oklahoma teenager who was 15 years old when he participated in the murder of his former brother-in-law, concluding that executing a juvenile offender who committed his relevant offense while under the age of 16 was "cruel and unusual punishment."[46] In Thompson, the Court refused to "draw a line" at 18 years old, preferring instead "to decide the case before [it]."[47] Therefore, the question of whether it was unconstitutional to execute juvenile offenders for offenses they committed at the age of 16 or 17 remained unanswered. [48]

In its next term, the Court answered this question in Stanford v. Kentucky.[49] The Court faced two consolidated cases in Stanford: one involving Kevin Stanford, who raped and murdered a gas station attendant when he was 17, and the other involving Heath Wilkins, who likewise murdered a convenience store attendant when he was 16 years old.[50] The Court upheld the death sentences of both juveniles, concluding that applying the death penalty to juvenile offenders 16 and older did not offend the Eighth Amendment.[51] Therefore, the Court's decisions in Thompson and Stanford established the minimum age for constitutionally permissible execution as 16 at the time of the offense.[52]

Sixteen- and seventeen-year-old offenders are not without some safeguards when facing the possibility of being sentenced to death: the offender's age is a relevant mitigating factor that the sentencing party must consider before selecting an appropriate punishment.[53] However, the dissenting Justices in Stanford, among others, have seriously challenged the adequacy of such safeguards. [54] Justice Brennan, dissenting in Stanford, questioned how much credence age receives as a factor in the determination, arguing instead that "the seriousness of the offense, the extent of prior delinquency, and the response to prior treatment within the juvenile justice system" are the factors given the most consideration.[55]

II. Eighth Amendment Analysis of the Death Penalty

Analysis of the death penalty's constitutionality rests on the Eighth Amendment. [56] The Supreme Court has made it clear that the Eighth Amendment prohibition against cruel and unusual punishment is "judged not by the standards that prevailed . . . when the Bill of Rights was adopted, but rather by those that currently prevail."[57] The Court expressed this interpretation of the Eighth Amendment in Trop v. Dulles.[58] In reviewing a soldier's penalty of denationalization for desertion, the Court stated that "[t]he [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[59] Therefore, the Court must examine shifting contemporary values to give the Amendment meaning.[60]

Traditionally, the Court has used a related "proportionality" analysis in examining punishments under the Eighth Amendment.[61] Such an analysis asks first "whether the ‘nexus between the...