American Juvenile Death Penalty

By Nikhita Nagori, Christ Law College, Bangalore

Editor’s Note: Death Penalty is one of the most sensitive issues in any criminal justice system, as it deals with questions of life and death. Another controversial issue is that of juvenile offenders-whether they can be tried and punished at par with adult offenders. This paper seeks to examine the rationale behind death penalty for juveniles in the United States of America, at a time when most of the other states in the world have abolished death penalty, even for the adults. It is argued that culpability of the offender and his level of maturity and understanding should be determined on a case-to-case basis, as no fixed standard can be laid down, especially with respect to age. Further, the increasing rate of crimes being committed in the society has led many to question the argument of rehabilitation that is offered by the opponents of death penalty.”

Capital punishment has always held a prominent place in the criminal history of  any nation. Despite the fact that 140 countries in this world outlaw juvenile death penalty, United States of America is the only country to adopt it.[i] Since the inception of the American legal system, the courts have viewed ‘age’ as a disqualifying or mitigating factor in assessing criminal liability.[ii] Since colonial times America has favoured punishment for juvenile offenders. The logic was to have parents “beat the devil”[iii] out of their child if he or she committed a crime.” Parents could be required to publicly execute, whip, or even banish their children if society found them to be criminally liable.[iv]This had created fear among the children that wrongdoing would lead to the worst consequences for them. The recent decision in Roper v. Simmons nullified the statutes in 19 separate states which provided for death penalty at a younger age.[v]

The Eight Amendment of the U.S. Constitution holds the concept of ‘evolving standards of decency that mark the progress of a maturing society.’[vi]It has been interpreted by many jurists overlooking the drastic increase in the crimes committed by juveniles. However, does the Eighth Amendment disqualify defendants under a certain age for imposition of the harshest punishment?[vii]The Eighth Amendment to the U.S. Constitution clearly prohibits punishment that is cruel and unusual. With all the confusion, one question that triggers within our mind is the seamless web of the law and the empirical reality of capital punishment, what role does the age of the youth of the offender play?[viii]

The belief shared by a lot of people is that adolescence is the time period of life when a youth is deficit in the ability to manifest overall civilised, serene and stress free behavior.[ix] However, the moot question over here is that if an adolescent between the ages of 16 to 18 has the capacity to commit a heinous crime, then he should also be awarded the highest punishment i.e. penalty of death or capital punishment. The constitutionality of executing persons for crimes committed when they were under the age of 18 is an issue that the Supreme Court has evaluated in several cases since the death penalty was reinstated in 1976.[x]

However, in Stanford v. Kentucky[xi], the United States Supreme Court held that the Eighth Amendment does not prohibit the death penalty for crimes committed at ages of 16 or 17.[xii] The judgment in Furman v. Georgia[xiii] has anyway reduced the scope and ambit of awarding death penalty, even for juveniles.  The U.S. Supreme Court overruled all the previous judgments in the year 2005 by making 18 as the age to award death penalty. The Court in this decision considered the overall social, psychological and legal parameters and said that granting death penalty is a cruel and unsocial form of taking revenge from accused, who are not even adults.  It is a general notion that juveniles are not  mature enough to understand the consequences of their acts. If we go by this logic, then a juvenile should also not be able to commit a crime which is generally committed by the adults. However, this logic fails at the very initial level. As Justice Kennedy said in the Simmons case- being younger than eighteen is merely a proxy for diminished culpability.[xv]

The statistics reflect that crimes have reached such a stage when the harm caused to the victim is intense. Showing any kind of leniency to the offender will be not render justice to the victim. Edmund Burke once remarked “Let the punishment match the offense.” In most of the typical cases, the age at which the juvenile committed the crime and convicted was 17. In 1999, when sentencing a seventeen-year-old to serve fourteen years in prison for the murder of his father, Judge Thomas V. Warren said, “I’m not concerned about recidivism or rehabilitation. The matter of concern is punishment.”[xvi]Any kind of merciful or tolerant behavior towards the juvenile can cause further damage to the society. Understanding the background of Simmons case itself, the juvenile, Christopher Simmons who planned a burglary was himself assured of the fact that he would not be given death penalty for committing this offence as he was a juvenile.[xvii] At Simmons’ trial, the prosecutor argued that Simmons’s age should be considered an aggravating, rather than mitigating factor.[xviii] Juries should determine the culpability of juveniles on a case-by-case basis, on the nature of the crime and the maturity level of the juvenile. Justice Scalia argued that a State’s general position on the death penalty does not bear on the question of whether a special rule should protect juveniles from the death penalty where it exists.[xix]

Comprehending socio- political factors, the propagators of death penalty for juveniles in America make a very comment that “If you did not care about my human rights, then why should I?”It is an undisputed fact that as long as human beings exist, crimes will exist. This reason makes it necessary for societies to have strict rules and laws for maintaining peace and harmony. Death penalty has been used since ancient times for various offenses. Even the Bible says that death should be done to anyone who commits murder, kidnaps, or witchcraft.[xx] Thinking on the legal dimensions, even though the people who disobey laws are few, the government needs stringent laws that provide for punishing these few people.

Death penalty for juveniles is one of the ways to curb the human tendency of defying laws and committing crimes. In a society, law plays an important role. Experiencing an increase in violence by juveniles, banning the death penalty would remove a much-needed deterrent. What other countries do concerning executing juveniles should not be relevant to the court’s consideration of what the United States Constitution demands.[xxi] The major issue with the propagators of death penalty is that juvenile courts do not award punishment that is proportionate with the crime committed. But what constitutes such consensus and where does it derive its authority, is irrelevant and unclear in the context of death penalty. Justice Scalia in Simmons case found “neither a historical nor a modern societal consensus forbids the imposition of capital punishment on any person who murders at 16 or 17 years of age”.[xxii]

There is another facade to the entire concept of allowing the juveniles for death penalty. Some men believe that juveniles, due to the psychological changes that they undergo are not  aware about the consequences of the act they are committing. The key question is whether death penalty can deter and diminish the number of crimes and save lives. There is no ‘ultimate’ deterrent’ to eradicate ‘ultimate crime’ and hence abolishing death penalty merely on the ground that it is inefficient is not the answer. Criminal law has always held juveniles to a different standard of accountability from adults. Children over the age of seven who are found criminally culpable face adult punishments because they have the requisite maturity to understand the consequences of their actions.

When children are young to understand their criminal conduct, it is the parents’ responsibility, not the State’s, to determine the appropriate punishment. Because children know that they are required to obey their parents before they even know or understood the laws of the State, the State should not interfere with the parents’ punishment.  However, the age at which juveniles can be transferred out of the juvenile court system, with emphasis on rehabilitation, and into the more punitive adult criminal courts has been steadily declining. In some States, juveniles as young as thirteen, ten, or even seven may be transferred to adult criminal court and some state legislatures have not even prescribed a minimum age for transfer.[xxiii]

However, killing of individuals by juveniles is a harsh reality that needs to be accepted by people today. Although social and personal factors play a major role in determining the death sentence, but it is a fact that it is better to permanently remove juvenile deliquesce from the society rather than wait for their rehabilitation. Considering all the other factors and the increasing number of capital offenders, including juveniles who commit capital offences, should be subject to “absolute” sentences, including the death penalty and life in prison[xxiv] without parole.[xxv] The above opinions are not grounded on sympathy but rather on fundamental justice and common decency to punish according to the culpability.

Edited by Kudrat Agrawal

[i] Amnesty International Report 2011.

[ii]Catherine A. Crosby, The Juvenile Death Penalty And The Eighth Amendment: An Empirical Investigation Of Societal Consensus And Proportionality,(Et Al. Preston A. Britner, Kathleen M. Jodl And Sharon G. Portwood, Springer Publication, Law and Human Behavior, Vol. 19, No. 3 pp. 245-26).

[iii]Mirah A. Horowitz, Kids Who Kill: A Critique Of How The American Legal System Deals With Juveniles Who Commit Homicide, Law And Contemporary Problems (Duke University School of Law, The Future Content of the U.S. Securities Laws Vol. 63, No. 3, pp. 133-177).



[vi]Furman v. Georgia, 408 U.S. 238 (1972).

[vii]Crosby, supra at 2.

[viii]Juvenile Offenders And The Death Penalty In The United States, Benjamin A. Neil, Brian A. Neil, Esquire.

[ix]Juvenile Justice- Advancing Research, Policy AndPractice, 96( Francine T. Sherman et. al., John Wiley & Sons, Inc., United States of America, 2011)


[xi]Stanford v. Kentucky  492 U.S. 361 (1989).


[xiii]Furman vGeorgia, 408 U.S. 238 (1972).

[xiv]Roper vSimmons, 543 U.S. 551 (2005).

[xv]Elizabeth F. Emens, Aggravating Youth: Roper V Simmons And Age Discrimination,(The University of Chicago Press, The Supreme Court Review, Vol. 2005, No. 1, pp. 51-102).

[xvi]Horowitz, supra at 3.

[xvii]Roper v. Simmons, 543 U.S. 551 (2005).

[xviii]Emens, supra at 14.


[xx]Horowitz, supra at 3.


[xxii]Crosby, supra at 2.

[xxiii]Horowitz, supra at 3.

[xxiv]John J. Wilson, Coordinating Council On Juvenile Justice And Delinquency Prevention, (U.S. Department of Justice, Office of Justice Programs, November 2000).


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