Eddings v. Oklahoma Brief for Petitioner
Public Court Documents
January 1, 1980
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Brief Collection, LDF Court Filings. Eddings v. Oklahoma Brief for Petitioner, 1980. fb3d608c-b09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/13b4d688-2adb-4af8-9531-0485efda6b4b/eddings-v-oklahoma-brief-for-petitioner. Accessed April 06, 2025.
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fY lon -fy lt.es_
QUESTIONS PRESENTED
1. Whether the infliction of the death penalty on a child
who was sixteen at the time of the crime constitutes cruel and
unusual punishment under the Eighth and Fourteenth
Amendments of the Constitution of the United States?
2. Whether the Court should address the plain error com
mitted by the trial court when it refused to consider relevant
mitigating evidence in violation of Lockett v Ohio -138 U S
586 (1978)?
♦
%
X
{
111
TABLE OF CONTENTS
Questions Presented ........................................................... j
Opinions Below ............................................................... j
Jurisdiction ........................................................................ \
Constitutional and Statutory Provisions Involved .. 2
Statementoetiie Ca s e ......................................................... 2
April 4, 1977 ........................................................................ 2
The Juvenile Proceedings ............................................... 7
The Trial ..................................................................... 9
Summary of Argument ....................................................... J6
Argument . .........................• .................................... jg
I. The Execution Of A Youth Who Was Under the
Age 01 Eighteen When The Crime was Committed
Would Violate Standards Of Decency Reflected In
History And Precedent, In Legislation And The Ac
tual Behavior Of Capital Juries, And In Contempo
rary Views And Understanding Of Children .......... 18
A. Introduction ......................................................... jg
B. An I Iistorical Perspective ................................... 20
1 The Common Law Tradi t ion.................... 20
2. The Discovery Of The Juvenile Offender 23
3. 1 he Impact On Capital Punishment Of
Society’s Changed Attitudes Toward
Juveniles ....................................................... 34
C. Contemporary Legislation ................................. 45
D. The Response of Capital Juries ......................... 55
E. Conclusion .................. 5g
II. The Execution Of Petitioner Eddings, In View Of
The Overwhelming Mitigating Circumstances In
His Case, Would Constitute Excessive And Dis
proportionate Punishment Forbidden By The
Eighth And Fourteenth Amendments ..................... 59
111. The Court Should Vacate Petitioner Eddings’ Death
Sentence Because Of Plain Error In The Record . . . 64
Conclusion ............................................................................ ^g
Page
IV
Table of Contents Continued
Page
Appendix A —Statutory Provisions Involved .......... la
Appendix B— Median Elapsed Time In Months Be
tween Sentence Ot Death And Execu
tion Of Convicted Murderers By State
And Year Of Execution .................... 5a
Appendix C-Persons Under Age 20 Executed Pur
suant To State Authority From 1864
Through 1967 — By State, Name,
Age, Race and Crime — Compiled
From The Teeters-Zibulka Inventory 7a
Appendix D-Changes Over Time Periods In Major
Themes Recurring In Governors’
Statements In Justifying Commuta
tion Of Death Sentences For Mur
derers And Rapists, North Carolina . 18a
Appendix E —Persons Under Age 20 At The Time
Of Offense Awaiting Execution As 01
May 1, 1981 ......................................... >,)a
TABLE OF AUTHORITIES
Cases: Page
Ahvik v. Slate, Adv. 2123, 613 P.2d 1252 (1980)
(Alaska) .........................................................................
Alabama Stale Federation o f Labor v. McAdory, 325 U.S.
450 (1945) .............. ...................................................... 65
Andres v. United States, 333 U.S. 740 (1948) .................... .6.7
Beck v. Alabama, 447 U.S. 625 (1980) .............................. 19
Bell v. Ohio. 438 U.S. 637 (1978) .................... 19 ,60 ,62 ,67
Bellotti v. Baird, 443 U.S. 622 ( 1 9 7 9 ) ............................ 19, 20
Bluejacket v. State, 91 Okla. Crim. 164, 217 P.2d 848
(1950) ............................................................................. 31
Boykin v. Alabama 395 U.S. 238 (1969) ........................ 64-65
Brace we 11 v. State,___ So.2 d -------(Ala. Cr. App-1980) 28
Bidlington v. Missouri,------U.S.-------, 49 U.S.L.W. 4481
(U.S., May 5, 1981) ....................................................... 60
Gallon v. Utah, 130 U.S. 83 (1889) ..................................... 67
v
Cohen v. California, 403 U.S. 15 (1971) ............................ 64
Coker v. Georgia, 433 U.S. 584 (1977) ........................ 19, 20
46, 55, 58
Coleman v. State, 378 So.2d 640 (Miss. 1979) .................. 30
Commonwealth v. Green, 396 Pa 137 151 A M 241
(1959) .............................; .................. ’............ .............. 32
Commonwealth v. O'Brien,____P a ____ 422 A 2d 894
(1980) .................... ; ............................ .......................... 31
Creek v. Stone, 379 F.2d 106 (D.C. Cir. 1967) ................ 33
F-x Parte Crouse, 4 Whart. 9 (Pa. 1839) .............................. 25
DeBacker v. Brainard, 396 U.S. 28 (1969) ........................ 33
Dorszynski v. United States, 418 U.S. 424 (1974) ............ 28
Eberheart v. Georgia, 433 U.S. 917 (1977) ........................ 19
Eddings v. State, 616 P.2d 1159 (Okla. Cr App
1980) ........................................................... . . . . 1 ,9 ,64
Ezell v. State, 489 P.2d 781 (Okla. Cr. App. 1971) .......... Jl
Fry rear v. Commonwealth, 507 S.W. 2d 144 (Ky 1974) 30
Furman v. Georgia, 408 U.S. 238 (1972) ................ 40, 47, 55
Gardner v. Florida, 430 U.S. 349 (1977) ................ 19, 65, 67
In re Gault, m i U.S. 1 (1968) ......................................... 26, 33
Godfrey v. State, 31 Ala. 323 (1858) .................................. 22
Godfrey v. Georgia, 446 U.S. 420 (1980) .............. 62, 63, 67
Green v. Georgia, 442 U.S. 95 (1979) (per curiam)........... 67
Gregg v. Georgia, 428 U.S. 153 (1976) ........................ 18, 19
20, 50, 59, 67
Haley v. Ohio, 332 U.S. 596 (1948) ................................... 20
Inmates o f Boys Framing School v. Affleck, 346 F Supp
1354 (D.R.l. 1972) ............................................ 33
Jurek v. Texas, 428 U.S. 262 (1976 ) .............................. 19, 67
Kent v. United States, 383 U.S. 541 (1966) ............ 27, 32, 33
Lockett v. Ohio, 438 U.S. 586 (1978) .......... i, 19, 60, 64, 67
Manarella v. Kelley, 349 F. Supp. 575 (S.D.N.Y. 1972) . 33
Matter o f M E., 584 P.2d 1340 (Okla. Cr. App) cert
denied, 436 U.S. 921 (1978) ...............................1 9
Table of Authorities Continued
Page
VI
Mtuiino v. Suite, 539 S \\ 2d 824 (Tenn. Cr. App. 197b) 32
Maxwell v. Bishop, 398 L .S. 2b2 (1971)) (per curiam) 64
Mae v. Anderson, 345 U.S. 528 (1953) ............................... 20
Mckeiver v. Pennsylvania. 403 U.S. 528 (1971) .......... 32, 33
kelson v. Hevne, 491 F .2d 352 (7th C ii ) , cert, denied. 417
U.S. 976 (1974) ............................................................. 33
Oregon v. Mitchell. 400 L .S. 1 12 (19 7 0 ) ........................... 50
People v Cohen____ Colo_____-,617 P.2d 1205 (1980) 29
People v. Davis. 43 N Y 2d 17, 400 N Y.S. 2d 735 (1977) 47
People v. Hiemel. 49 App. Div. 2d 769, 372 N Y.S.2d 730
(NY. 1975) ................................................................... 31
People v. Howell. 16 111. App. 3d 989, 307 N.E.2d 172
(1974) .............................................................................. 29
People v. Martinson. 35 App. Div. 2d 521, 312 N.Y.S.2d
281 (N Y. 1970) ............................................................. 31
People ex ret. O'Connell v. Tamer. 55 111 280, 8 Am. Rep.
645 (1870) ..................................................................... 24
People v Teller. 1 Wheeler Crim. Law Cases 231 (N Y.
City Cl. 1823) ................................................................. 22
People v. Wilkins. 3b 111. App. 3d 761, 344 N.E. 2d 724
(1976) ............................................................................. 29
Prof Tut v- Florida, 428 U.S. 242 (1976 ) ............................... 19
(Harry) Roberts v. Louisiana, 431 U.S. 633 (1977) 19, 62, 67̂
State v. Allison Beard. No. CRF-79-4516 (Dist. Cl. Okla.
Cty.) ................................................................................ 58
State v. Bess. 53 N.J. 10, 247 A.2d 669 (1968) ................ 31
Suae v. Blanton. 166 N.J. Super. 62, 398 A.2d 1328
(1979) .............................................................................. 31
State v. Comstock, 25 Conn. Supp. 453, 207 A.2d 276
(1965) .............................................................................. 29
State v Coughlin, Mont. Sentence Review Div., 176
Mont. 7A (1978) ........................................................... 30
State v. Cox. 369 So.2d 118 (La. 1979) ............................ 3«
State v. Guild. 10 N.J.L. 163 (1828) ................................. 22
State v. Hubbard, 200 Neb. 410, 263 N.W.2d 847 (1978.) 31
Table of Authorities Continued
Page
*<
fc
zs
yv
v.
-:
State v. Quintus Lamar Kezzee, No. CRF-81-1087 (Dist.
Ct. Okla. Cty.) .................................
State v. Linebarger, 71 Idaho 255, 232 P.2d 669 (1951) 29
State v. Maloney, 105 Ariz. 348, 464 P 2d 793 cert
denied, 400 U.S. 841 (1970) ...............................’......... ' 29
State v. Rodriguez, 25 Conn. Supp. 350 204 A 2d 37
(1964) ....................................... ........ ..............29
State v. Jimmy Derrell Scoti, No. CRF-77-1397 (Dist. Ct.
Okla. Cty.) ...................................
State v. Sepalvado, 367 So.2d 762 (1979) .......................... 30
State v. Spinks, 66 N.J. 568, 334 A.2d 23 (1975) .............. 3 |
State v. Stevenson, Mont. Sent. Review Div. 152 Mont
31A (1968) ........................................... 20
State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977) 30
State v. Telavera, 16 Ariz. 183, 261 P.2d 997 (1953) ___ 29
Street v. New York, 394 U.S. 576 (1969) .................... . 64,67
Stromberg v. California, 283 U.S. 359 (1931) ................. 67
Troyer v. State, Adv. 2138, 614 P.2d 313 (Ala. 1980) . . . 28
Vaclton v. New Hampshire, 414 U.S. 478 (1974) 65
Vasil v. State. 374 So.2d 465 (Fla. 1979) .......................... 29
Weems v. United Slates, 217 U .S. 349 (1910) .................. 60
*//) re Wjnship, 397 U.S. 358 (1970) ..................................... 33
Woodson v. North Carolina, 428 U.S. 280 (1976) 50, 59
60, 67
Workman v. Commonwealth, 429 S.W.2d 374 (Ky. 1968) 30
Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972) . . . 33
• C onst itut io nal Pro v is io n s: page
United States Const, amend. V l l l .......................................2, 59
United Stales Const, amend. X I V ......................... j
* United States Const, amend. XX VI ....................... 59
if*
E St a t u t es:
Federal Statutes
Federal Youth Corrections Act, 18 U.S.C. § 5005 etseq. 27
vii
Table of Authorities Continued
Page
Federal Juvenile Delinquency Act, 18 U.S.C. § 5031 . . . . 28
28 U.S.C. § 1257(3) ........................................................... • ■ 1
Juvenile Delinquency Prevention and Control Act, h2
U.S.C.§ 3801 ................................................................. 28
Juvenile Justice and Delinquency Prevention Act of
1974, 42 U.S.C. § 5601 ................................................. - 8
Stare Statutes
Act of Mar. 29, 1824, ch. 126 S 4,(1824] N.Y. Laws 111 23
Act of Mar. 4, 1826, ch. 182. § 3,(1826] Mass. Laws 327 . 24
Act of Mar. 23, 1826, ch.47.(1826] Pa. Laws 133 ........... 24
1981 Ala. Acts, § 13(g) ......................................................... 46
Ala. Code § 12-15-1 (3) (Supp. 1979) ................................... 47
Alaska Stat. § 47- 10-010(a) (Supp. 1979) .......................... 47
Ariz. Rev. Slat. § 8-201.5 (Supp. 1980) ............................ 47
Ariz. Rev. Stat. § 13-703G.5 (Supp. 1980) ........................ 46
Ark. Stat. Ann. §41-1304(4) (Supp. 1979) ...................... 46
Ark. Stat. Ann. §45-406.1 (Supp. 1979) ........................... 47
Cal. Penal Code § 190.3(i)(West Supp. 1980) ................. 46
Cal. Penal Code § 190.5 (West Supp. 1980) ..................... 46
Cal. Well'. & Inst. Code § 300 (West Supp. 1980) ........ 47-48
Colo. Rev. Stat. Ann. §16-11-103(5.l)(f) (1978) ........ 46-47
Colo. Rev. Stat. Ann. § 19-1-103(3) (1978) ...................... 48-
Conn. Gen. Stat. Ann. § 466-120 (West Supp 1 9 8 0 ) . . . . 48
Conn Gen. Stat. Ann. § 53a-46a(f) (1) (West Supp.
1 9 8 0 ) ........................................................................... 46- 41
Del. Code Ann. tit. 10, § 901 (3) (Supp. 1980) .................. 48
Fla. Stat. Ann. §39.01(7) (West Supp. 1981) 48
Fla. Stat. Ann. §921.141 (6)(g) (West Supp. 1981) 47
Ga. Code Ann. § 24-2408 (Supp. 1980) ............................. 48
Hawaii Rev. Stat. § 571-11(1) (Supp. 1980) ...................... 48
Idaho Code § 16-1802(c) (Supp. 1980) ............................... 48
Illinois Juvenile Court Act, [1899] 111. Laws 133 ............ 25
VIII
Table of Authorities Continued
Page
IX
III. Ann. Slat. ch. 37, § 702-2 (Supp. 1980) ........................ 48
111. Rev. Stat. ch. 38, § 9-1 (b) (Smith-Hurd Supp. 1978) . 46
Ind. Code. Ann. § 31-6-1-2(1) (Burns Supp. 1979) ........ 48
Ind. Code Ann. § 35-50-2-9(c) (Burns Supp. 1979) ........ 47
Iowa Code Ann. § 232.2(3) (West Supp. 1980) ................ 48
Kan. Stat. § 38-802 (Supp. 1980) ......................................... 48
Ky. Rev. Stat. Ann. § 208.010(2) (Baldwin Supp. 1980) . 48
Ky. Rev. Stat. Ann. § 532.025(b) (8) (Baldwin Supp.
1980) ................................................................................ 47
La. Code Crim.Pro. Ann. art. 905.5(f) (Supp. 1981) . . . 47
La. Rev. Stat. Ann. § 13.1569(3) (Supp. 1981) ................ 48
Me. Rev. Stat. Ann. tit. 15, § 3003(14) (Supp. 1980) . . . . 48
Md. Crim. Law Code Ann. § 413(g)(5) (Supp. 1980) . . . 47
Md. Cts. & Jud. Proc. Code Ann. § 3-801 (d) (1980) . . . . 48
Mass. Gen. Laws Ann. ch. 119, § 52 (Supp. 1981) .......... 48
Mich. Comp. Laws Ann. § 712A.2(a) (Supp. 1981) ........ 48
Minn. Stat. Ann. § 260.015(2) (West. Supp. 1981).......... 48
Miss. Code Ann. § 43-21-5(c) (Supp. 1979) .................... 48
Miss. Code Ann. § 99-19-101 (6) (g) (Supp. 1979) .......... 47
Mo. Rev. Stat. § 211.21 (Supp. 1981) ................................. 48
Mo. Rev. Stat. § 565.012(3) (7) (Supp. 1981) .................. 47
Mont. Rev. Codes Ann. § 41-5-103(10) (1979) ................ 48
Mont. Rev. Codes Ann. § 46-18-304(7) (1979) ................ 47
Neb. Rev. Stat. § 29-2523(2)(d)(Supp. 1979) .................. 47
Neb. Rev. Stat. § 43-201 (2) (Supp. 1979) ........................... 48
Nev. Rev. Stat. § 62.020(2) (1979) ..................................... 48
Nev. Rev. Stat. § 176.025 (1979) ......................................... 46
Nev. Rev. Stat. § 200.035(6) (1979) ................................... 47
N.H. Rev. Slat. Ann. § 169:2 III (Supp. 1979) .................. 48
N.H. Rev. Stat. Ann. § 630:5 11(b)(5) (Supp. 1979) ........ 47
N.J. Stat. Ann. § 2A:4-14 (Supp. 1980) ............................ 48
Table of Authorities Continued
Page
X
N.M. Slat. Ann. § 31-20A-6 1 (Supp. 1980) ...................... 42
N.M. Stat. Ann. § 32-1-3CA) (Supp. 1980) 4H
N.Y. Fain. Ct. Act § 712(a) (McKinney Supp. 1980) . . . . 48
N.Y. Penal Law § 125.27 (McKinney Supp. 1980) 47
N.C. Gen. Stat. § 7A-517U ) (Supp. 1979) ........................ 48
N.C. Gen. Stat.§ 15A-2000(f)(7) (Supp. 1979) ............. 47
N.D. Cent. Code § 27-20-02(1) (Supp. 1979).................... 48
Ohio Rev. Code Ann. §2151.01.1(0)(D (Supp. 1980) .. 48
Okla. Slat. Ann., tit. 10. § 1101 ........ .................................. 4^
Okla. Stat. Ann., lit. 10. § 1112 ...........................................
Okla. Stat. Ann., tit. 10, § 1139 ...........................................
Okla. Slat. Ann., tit. 21, § 7 0 1 .9 ........................................... 2
Okla. Slat. Ann., tit. 21, § 701.10 .............................. 2 ,16 ,65
Okla. Stat. Ann , tit. 21, §701.11 ......................................... 2
Okla. Stat. Ann., tit. 21 .§701 .12 .........................................2’ 10
Okla. Stat. Ann., tit. 21, § 701 .13 ......................................... 2
18 Pa. Cons. Stat. Ann. § 1311(e)(4) (Purdon 1980) . . . . 47
Pa. Stat. Ann., tit. 42, § 6302(1) (Purdon 1980) .............. 48
R. I. Gen. Laws Ann. § 14-1-3(c)(Supp. 1980) ................ 48
S. C. Code § 14-2l-20(c) (Supp. 1980) ................................ 48
S.C. Code § 16-3-20(c) (b)(7) (Supp. 1980) ...................... 47
S.D. Comp. Laws §26-8-1 (3) (Supp. 1980) ...................... 48
Tenn. Code Ann. § 37-202(1) (Supp. 1980) ...................... 48
Tenn. Code Ann. § 39-2404(j) (7)(Supp. 1980) .............. 4/
Texas Fam. Code Ann. § 51-02(1) (Supp. 1980) .............. 48
Texas Penal Code Ann., tit. 2, § 8.07(d) (Vernon Supp.
1980-1981) .....................................................................
Utah Code Ann. §76-(a) (b)(7) (Supp. 1979) .................. 4/
Utah Code Ann. § 78-3a-2(3) (Supp. 1979) ...................... 48
VT. Stat. Ann., tit. 13, § 2303(b)(Supp. 1980) ................ 47
VT. Stat. Ann., tit. 33, § 632(a)(1)(Supp. 1 9 8 0 ) .............. 48
VA. Code Ann. § 16.l-228(Supp. 1980) ............................ 48
Table of Authorities Continued
Page
xi
Table of Authorities Continued
Page
VA. Code § 19.2-264(11) (v) (Supp. 1980) .......................... 47
Wash. Rev. Code Ann. § 13.40.020 (11) (Supp. 1981) .. 48
W. Va. Code Ann. § 49-5-1 (a) (Supp. 1980) .................... 48
Wis. Stat. Ann. §48.02(2) (West Supp. 1980) ................. 48
Wyo. Stat. Ann. § 6-4-102(j) (vii) (Supp. 1980) ................ 47
Wyo. Slat. Ann. § 14-6-201 (a) (Supp. 1980) .................... 48
International Statutes
Les Codes Larcier, Code Penal, ch.VllI, 77 (Belgium) . . 52
Das Bulgarische Strafgesetzbuch Vom 16 Maerz, 19o8
(Nakazatelen Kodeks, Art. 38(2)(1973) (Bulgaria) 52-53
Penal Code of 1961, § 29(3), trans. in Solnar, The Condi
tions o f Criminal Liability Under the New Czechslovak
Penal Code oj 1961, 20 Bull. Czechoslovak Law 1,
67-68 (1962) (Czechoslovakia)................................... 53
C. Pen art. 66 (France) ................................................... 53
STGB. DDR. §§ 60(2), 65 (German Democratic Repub
lic) .................................................................................... 53 ,
Greek Pen. Code, arts. 121, 122, 127 (trans. by N.
LOLIS 1973) (Greece) ................................................. 53
Crim. Code of Hung. Peoples Republic § 39.(1), trans. in
1 Hung. L. Rev. 25 (1980) (Hungary) ..................... 53
Pen. Code of the Polish People’s Republic, art. 31 (trans.
by W. Kenny & T. Sadowski 1973)(Poland) ............ 53
Pen. Code of the Romanian Socialist Republic art. 54
i (trans. by S. Kleckner 1976) (Romania) .................. 53
Turkish Crim. Code, art. 55, 1 (trans. by N. Gurelli
1980) (Turkey) ............................................................. 53
Soviet Code of Law, art. 23 (W. Simons ed. 1980)
(USSR) ........................................................................... 53
Other Authorities:
American Convention on Human Rights, entered into
1 force July 18, 1978, O.A S. Doc. OEA/SER. K/
XVl( l . l ) Doc. 65 (1970), reprinted in [1969] Year- ' •
book on Human Rights 390 (United Nations) ....... 53
Xl l
A m er ican Law In s t i t u t e , Model Penal Code
§ 210.6(1) (d) (Proposed Official Draft, 1962) . . . 31,62
American Law Institute, Model Penal Code §210.6,
Comment (Official Draft and Revised Comments
1980) ................................................................................ 51
Annual Report of the Ohio Board of Clemency, 1923-
1924 .................................................................................. 44
Bailey Deterrence and the Celerity o f the Deadi Penalty: A
Neglected Question in Deterrence Research, 38 SO
CIAL FORCES 1308 (1980) ...................................... 36
Barnett The Grounds oj Pardon, 6 ORE. L Rev. 205
(1927) ............................................................................. 41
H. Bedau, The Death Penalty in America: An Anthology
(Anchored. 1967) ......................................................... 44
Bedau Capital Punishment in Oregon, 1903-64, 45 ORE.
L. Rev. 1 (1965) ........................................................... 45
Bedau Death Sentences in New Jersey 1907-1960,
RUTGERS L. REV. 1(1964) ....................................... 44
4 W Blackstone, Commentaries on the Laws of England
(1792) ....................................................................... •• 21
W. Bowers, Executions in America (1974) .......... 35, 38, 39
California Department of Corrections, Research Divi
sion, Administrative Statistics Section, Executions
in California: 1943 through 1963 (1965) .................. 40
Carter, The Death Penally in California: A Statistical and
Composite Portrait, 15 Crime & Delinq. 62 (1969) . . 39
S. Davis, Rights of Juveniles: The Juvenile Justice Sys
tem (2d ed. 1980) ......................................................... 22
Foster, Crown Lav/(3d ed. 1792) ....................................... 2 '
Fox, Juveidle Justice in America: Philosophical Refotms, 5
Human Rights 63 (1975) ............................................. 32
Fox Juvenile Justice Reform: An Historiai Perspective, 22
Stan. L. Rev. 1 187 (1970) ....................................... 23> 24
Frey The Criminal Responsibility o f the Juvenile Murderer,
1970 Wash. U.L.Q.113 (1970 ) ..................................... 49
1 Hale, Pleas of the Crown (1682) ..................................... 21
Tabic of Authorities Continued
Page
x m
Handler, The Juvenile Court and the Adversary System: Prob
lems o f Function and Form, 1965 Wise. L. Rev. 7 . . . 26, 34
House Rep. No. 92-37, 92nd Cong., 1st Sess. (1971) . . . 50
International Covenant on Civil and Political Rights,
entered into force March 23, 1976, G.A. Res. 2200A,
21 U.N. GAOR, supp. (No. 16) 49, 52 U.N. Doc. A/
6316 (1967) ................................................................... 53
International Human Rights Treaties: Hearings Before the
Senate Comm, on Foreign Relations, 96ill Cong., 1st
Sess. (1979) ................................................................... 54
Institute for Judicial Administration/American Bar As
sociation, Juvenile Justice Standards Project, Tenta
tive Standards Draft, Juvenile Crime (1976) .......... 49
Johnson, Selective Factors in Capital Punishment, 36 SO
CIAL FORCES 165 (1957) ......................................... 45
Keiter, Criminal or Delinquent: A Study o f Juvenile Cases
Transferred to the Criminal Court, 19 CRIME &
DELINQ. 528 (1973) ................................................... 39
Kit trie, Can the Right to Treatment Remedy the Ills o f the
Juvenile Process? SI GEO. L.J. 848 (1969) .......... 33, 34
Knell, Capital Punishment: Its Administration in Relation to
Juvenile Offenders in the Nineteenth Century and its
Possible Administration in the Eighteenth, 5 Brit. J.
' ; Delinq. 198 (1965) ....................................................... 21
M. Levin & R. Sarri, Juvenile Delinquency: A Compara
tive Analysis of Legal Codes in the United States
(1974) ............................................................................. 27
Liebman & Shepard, Guiding Capital Sentencing Discretion
Beyond the ‘Boiler Plate': Mental Disorder as a Mitigat
ing Circumstance, 66 GEO L.J. 757 (1978) .......... 62, 67
H. Lou, Juvenile Courts in the United States (1927) . . . 25
Lowering the Voting Age to IS: Hearings Before the Sub-
comrn. on Constitutional Amendments o f the Senate
Comm, on the Judiciary, 91st Cong., 2d Sess. (1970) 50
Mack, “ The Juvenile Court” , 23 HARV. L. REV. 104
(1909) ........................................................................... 27
Table of Authorities Continued
Page
X IV
Table of Authorities Continued
Page
Mennel, Origins o f the Juvenile Court: Otanging Perspecm^
on :lie Legal Rights o f Juvenile Delinquents, 18 CRIME
& DELINQ. 68 (1972) ................................................. 25
K. Menninger, The Crime of Punishment (1966) .......... 62
Message of the Governor Concerning Pardons, Com
mutations and Reprieves Granted by Gov. James
Rolph, Jr. for period 1931-1933 (1933) (California) . 42
Message of the Governor Transmitting Statements ol the
Pardons, Commutations and Reprieves Granted
During the Year 1972 (New York) .................... 43' 44
Message of the Governor Transmitting Statements of the
Pardons, Commutations and Reprieves Granted
During the Year 1959 (New York) ............................
NAACP Legal Defense and Educational Fund, Inc
Death Row U.S.A. (April 20, 1981) ...................... 56, 57
National Advisory Commission on Criminal Justice
Standards and Goals. Report of the Task Force on
Juvenile Justice and Delinquency Prevention
(1976) ............................................................... ..
National Commission on Law Observance and Enforce
ment- The Child Offender in the Federal System ol
Justice (1931) ....................................................... ;■■■• 28
National Conference of Commissioners on Uniform
State Laws, Uniform Juvenile Court Act,
§2.1(0(1968) ................................................................. 4 ;
Note, Executive Clemency in Capital Cases, 39 N.Y.U.L.
R e v . 136 (1964) .............................................................
Note, Juvenile Delinquents: The Police State Courts and
Individualized Justice, 79 Harv. L. Rev. 775 (1966) . . 26
20 Pari. Deb. 278 (3d Ser. 1833) ......................................... 21
25 Pari. His. 889 (1785-86) ................................................. 22
Patrick, The Status o f Capital Punishment: A World
Perspective, 56 J. Crim. L.C.&P.S. 397 (1965) .......... 52
Paulsen, Fairness to the Juvenile Offender, 41 Minn. L.
Rev. 547 (1957) ....................................................... 26’ 2/
R. Pickett, House of Refuge (1967) ................................. 23
xv
Table of Authorities Continued
Page
A. Platt, The Child Savers: The Invention of Delinquen
cy (2d ed. 1977) ........................................... 21, 22, 25, 32
President’s Commission on Law Enforcement and Ad
ministration of Justice, Task Force Report: Juvenile
Delinquency and Youth Crime (1967) ................ 26,28
President’s Commission on Law Enforcement and Ad
ministration of Justice: The Challenge of Crime in a
Free Society (1967) ........................................... 32,34,61
1 L. Radzinowicz, a History of English Criminal Law and
its Administration from 1750: The Movement for
Reform (1948) ......................................................... 21, 22
Renn, The Right to Treatment and the Juvenile, 19 Crime &
Delinq. 477 (1973) ....................................................... 33
Report o f the Committee on International Human Rights,
United Nations Human Rights Covenants, 36 The
Record of the Association of the Bar of the City of
New York 217 (1981) ................................................... 54
Report of the State Board of Pardons, 1893-1894 (Col
orado) .............................................................................. 42
Report of the State Board of Pardons, 1895-1896 (Col
orado) .............................................................................. 43
Report of the State Board of Pardons, 1905-1906 (Col
orado) .............................................................................. 43
Reprieves, Commutations and Pardons by Gov. C C
• Young, 1929-1930 (1931) (California) .................... 42
Royal Commission on Capital Punishment 1949-1953,
Report (H.M.S.O. 1953) (Cmd. 8932) ...................... 35
Russell Sage Fndn., Juvenile Courts in the United States
(1910) ............................................................................. 27
Russell Sage Fndn., Juvenile Delinquency — Its Preven
tion and Control (1966) ............................................... 33
C. Sandburg, Abraham Lincoln: The War Years (1954) . 42
1 D. Schneider, The History of Public Welfare In New
York State 1609-1866 (1938) ....................................... 23
Schultz, The Cycle o f Juvenile Court History, 19 Crime &
Delinq. 457 (1973) .......... 34
X V I
Senate Rep. No. 92-26, 92d Cong., 1st Sess. (1971) . . . . 50
W. Smithers, Treatise on Executive Clemency in Penn-
sylvania (1909) .............................................................
Society for the Prevention of Pauperism in the City ot
New York. Report on the Subject ot Erecting a
House of Refuge for Vagrant and Depraved Young
People (1823) .................................................................
Thronberry, Race. Socioeconomic Status and SentencinS in
the Juvenile Justice System, 64 J. Crim. L.C.&I .S. 90
(1973) ........................................................... ..............
Dimed Nations, Economic and Social Council, Capital
Punishment — Report of the Secretary General (h/
5616) (1975) .................... ; ......................... ; ............; •
United Nations, Economic and Social Council, Capital
Punishment - Report of the Secretary General
(1973) ........................................................... ..................
United Nations, Economic and Social Council Human
Rights Questions, Capital Punishment — Report ol
the Secretary General (E/1980/9) (1980) ................ 5
United States Dept. Of Health, Education & Welfare,
Welfare Administration, Children s Bureau, Stand-
ards for Juvenile and Family Courts (1966) ............ ^
United States Dept, of Justice, Bureau of Justice Stand
ards National Prisoner Statistics, NCJ-70946, Cap-
ital Punishment 1979 (Dec. 1980) ........................ ’ t,
United States Dept, of Justice, Law Enforcement Assist
ance Administration, National Pnsoner Statistics
Bulletin, No. SD-NPS-CP-2, Capital Punishment
1973 (March 1975) ................................................. .. . -0
United States Dept, of Justice, Law Enforcement Assist
ance Administration, National Prisoner Statistics
Bulletin, No. SD-NPS-CP-1, Capital Punishment
1971-72 (Dec. 1974) .......... ..........................................
Table of Authorities Continued
Page
40
xvn
Table of Authorities Continued
Page
United States Dept, of Justice, National Institute for
Juvenile Justice and Delinquency Prevention
Working Papers of the National Task Force to De
velop Standards and Goals for Juvenile Justice and
Delinquency Prevention, Jurisdiction - Delinquen
cy (1977 ) ........................................................... 1 49
Wolfgang, Kelly and Nolde, Comparison o f the Executed
and the Commuted Among Admissions to Death Row
53 J. CRIM L., C. & D. 301 (1962) .............................' 45
IN THE
&uprm* (Emirt n! % l&xuteb States
October T erm , 1980
No. 80-5727
Monty Lee Eddings, Petitioner,
v.
State of Oklahoma, Respondent.
On Writ Of Certiorari To The
Oklahoma Court Of Criminal Appeals
B R IE F FOR PETITIONER
OPINIONS BELOW
I he opinion ol the Oklahoma Court of Criminal Appeals af
firming petitioner’s conviction of first degree murder and sen
tence of death by lethal injection is reported in Eddings v.
Suite, 616 P.2d 1159 (Okla. Cr. App. 1980)(A. 192-211). The
judgment ol the District Court ol Creek County is unreported
and appears at A. 4-5.
... ̂*ie °P*n'on °* *9e Oklahoma Court of Criminal Appeals af-
. firming the order waiving juvenile jurisdiction and certifying
petitioner to stand trial as an adult is reported in Mutter o f
M.E., 584 P.2d 1340 (Okla. Cr. App.), cert, denied, 436 U.S.
921 (1978). The order of the Juvenile Division of the District
Court of Creek County is unreported.
JURISDICTION
The jurisdiction of this Court rests upon 28 IJ.S.C
§ 1257(3), the petitioner having asserted below and asserting
here a deprivation of rights secured by the Constitution of the
United States. 1
1 he judgment of the Oklahoma Court of Criminal Appeals
was entered on March 21, 1980. A timely petition for rehear-
2
ing was denied by that court on September 15, 1980. The peti
tion for certiorari was filed on November 14, 1980.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This case involves the Eighth Amendment to the Constitu
tion of the United Slates, which provides:
“ Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted;”
and the Fourteenth Amendment to the Constitution ot the
United Slates, which provides, in pertinent part:
“ [N]or shall any State deprive any person of life, liberty,
or properly without due process of law.”
This case also involves the following provisions of the
statutes of the State of Oklahoma, which are set forth in Ap
pendix A to this brief: Okla. S!at. tit. 21, §§ 701.9, 701.10,
701.1 1, 701.12, and 701.13.
STATEMENT OF THE CASE
April 4, 1977
Early on the morning of April 4, 1977, Monty Eddings, a
sixteen-year-old boy who had been living with his natural
father and his stepmother in Camdenton, Missouri (A. 127)
went to the home of a friend, fourteen-year-old Gary Mglt
(A. 50) Eddings revealed to Molt that his parents had be
come angry with him the night before while he was unloading
items from a family van (A. 57); he announced to Molt that
he planned to run away from home (A. 58).' After some dis- 1
1 Eddings had attempted unsuccessfully to run away the previous
month. Ilis probation officer, Steven Dorn, testified that on March 1,
1977, he had been contacted by the Camdenton Police who notified
him that Eddings was being detained as a runaway in the Slate of
Oklahoma. Eddings’ parents had not reported this earlier attempt to
authorities (A. 114).
3
cussion, Molt agreed to join Eddings (id.), and the two re
turned to Eddings’ house.
Before they left, Eddings took a .410 gauge shotgun to his
basement where, according to Molt, he sawed off a portion of
the barrel (A. 50). He then placed that shotgun, together with
another .410 gauge shotgun and a rifle (A. 50), in a red
Volkswagen (A. 48).3 The two left Camdenton in the
Volkswagen for Joplin, Missouri, where they intended to pick
up Eddings’ fourteen-year-old sister Rhonda (A. 58-59) and
another younger sister, Brenda (Cert. H., II, 044)J who lived
with petitioner’s natural mother. Molt testified that although
Eddings acted “ [j]ust normal, you know; nothing different”
(A. 60), in fact he knew Eddings to be “ more or less upset,”
because of problems with his father (A. 67).
Rhonda Eddings had spoken with her brother the previous
weekend at their grandmother’s home, and the two had dis
cussed running away sometime during the coming week
(Cert. IE, II, 083, 085). Rhonda apparently confessed to a fif
teen-year-old classmate, Terrie Clevenger, that she wanted to
run away because she had become pregnant (A. 93), and
Clevenger agreed to accompany Rhonda.
Eddings and Molt met the two young girls outside their
ninth grade classroom in Joplin. When Brenda Eddings
proved unable to leave work to accompany them (Cert. IE, II,
• 044), the four young people set out driving southwesterly on
2 Molt testified that Eddings “ said something about that if we ran
out of money or something, you know, we could use those guns”
(A. 60).
3 Each reference to the transcript of the certification hearing held
in the Juvenile Division of the District Court of Creek County will be
indicated by the abbreviation “ Cert. II.,” followed by a roman num
ber indicating the volume of the transcript and arabic numerals in
dicating the pages referred to. The record of those proceedings was
before the Oklahoma Court of Criminal Appeals in 584 P.2d 1340; it
was not brought back before that court in 616 P.2d 1159.
4
Interstate 44. None of the four had a driver's license (A. 51),
and none had a specific destination. Said Terrie Clevenger:
“ [Tlhey said something about going to Florida, Texas, Mex
ico and California” (A. 93; see A. 59).
Rhonda recalled that her brother said very little during the
drive and seemed "kind of withdrawn all to himself” (Cert.
11., 11, 086-087). After they reached Oklahoma, he stopped at
a turnpike gate to pick up Timothy Thomas, a hitchhiker
(A. 32). Thomas testified that the group indicated they were
headed for Florida; when he told them they were travelling in
the wrong direction, one of the girls asked him ii he could
read a map and give them directions (A. 39).
Shortly after they picked up Thomas, the group stopped at a
Howard Johnson restaurant for ten minutes to purchase soft
drinks (A. 52). As he drove away from the restaurant,
Eddings dropped a cigarette in the car. When he leaned down
to retrieve it, the Volkswagen momentarily veered oil the
road and down a shallow embankment (A. 36-37; see A. 55).
Apparently, a service station attendant observed the Eddings
vehicle veer off the entry road and reported the incident to
Oklahoma Highway Patrol Officer Larry Crabtree, who was in
side the restaurant having coffee. Officer Crabtree said he
would investigate (A. 185).
Some twenty minutes after the Eddings vehicle left the res
taurant and reentered the turnpike (A. 37), Rhonda Eddings
saw a highway patrol car approaching them from behind and
remarked, "Here comes a cop” (A. 89). Monty Eddings be
came extremely angry (A. 62), vowing, Molt testified, that
"[i] finis mother fucking pig tried to stop him he was going to
blow him away” (A. 66). Hitchhiker Thomas recalled Eddings
saying "he was tired of being hassled by the pigs (A. ),
and stating that4
4 Although Gary Molt testified that he had never before heard his
friend express animosity against police (A. 78), the two of them had
experienced "quite a bit of trouble with the Police back in Missouri
(A. 62).
5
"he was going to kill him . . . there was some talk over —
well, you ain’t going to do that, that’s kind of silly. And I
kind of thought it was a joke, and I said — well, you
know, I didn’t say anything — I kind of froze up. 1 really
didn’t believe 1 was there. And the next thing 1 know,
Monty asked for a shotgun, which was in the front floor
board of the seat, and he picked it up, and loaded it with
one shell, and kind of pulled it (at] a forty-five degree an
gle, and just kind of fired on the cop.”
(A. 34).
According to Gary Moll, as Eddings brought his
Volkswagen to a stop on the edge of the highway in response
to the officer’s signal, Molt took the .410 shotgun which had
been resting between the car’s two front bucket seats5 and
placed it behind the driver’s seat (A. 64). Eddings reached
back behind the seat, however, picked up the shotgun, and
loaded it with a single shell (A. 65). As Officer Crabtree ap
proached from behind on the driver’s side, Eddings fired once
(A. 54).
Hitchhiker Thomas recalled that, after the shot was fired,
“ Monty was kind of shaking, but he kind of drove off; and I
asked him if he had killed him, and Monty said, 1 don’t
know” (A. 34).
"Q. Was he silent all this time?
-A. [Thomas]: He was kind of panicing [sic], the same
as I; we were all kind of shocked, really.
Q. What was he saying; what did he say?
A. He was just mumbo-jumbo . . . Nothing 1 could
understand.” 6
(A. 38).
5The other shotgun and the rifle were in a luggage compartment
behind the rear seat (A. 64).
6Terrie Clevenger saw the officer "gra[b] ahold of his chest, and
blood came out, and he fell to the ground” (A. 91). The Assistant
Chief Medical Examiner of the State of Oklahoma testified that Of
ficer Crabtree had suffered a shotgun wound to the chest (A. 21),
6
After firing the shot, Eddings drove off. Terne Clevenger
recalled Eddings saying as they drove away, “ I would rather
have shot an Officer than go back to where 1 live” (A. 93).
Soon after they resumed driving, Eddings instructed Molt and
Thomas to throw all of the guns out of the car, and they did so
(A. 54-55).
John Marquiess, a motorist passing just as the Eddings
vehicle pulled away from the highway patrol car, noticed 01-
ficer Crabtree lyine wounded on the ground and radioed an
alert on his citizen’s band radio (A. 46). The Eddings vehicle
was apprehended by other highway patrol units shortly
thereafter (A. 47). Terrie Clevenger testified that when
Eddings observed patrol units approaching, he pulied over
10 the side of the road, put everything he had on the ground,
and laid down on the ground” (A. 91).
Eddings was arrested and taken to the Creek County
Sheriffs Department where he was alternately questioned and
held in custody (A. 83-84). According to Oklahoma Highway
Patrolman Joe Inman, at one point after Eddings had been
standing in ” a hall back by the cell area of the Sheriff’s De
partment” (A. 76), “ facing the wall” for “ [pjossibly an hour
and a half to two hours” (A. 80) ,1 he turned around and
looked over his shoulder toward Officer Inman and Trooper
Leon Spencer who were “ talking, standing directly, behind
Mr. Eddings at this time” (A. 76), and stated “ if he was loose
that he would shoot us all” (A. 77).“
which inflicted “damage to the muscle and the bone . . . the third,
fourth and fifth ribs were destroyed . . . and this had destroyed both
ventricles of the heart” (A. 21). Officer Crabtree, died of “ [ejxsan-
guination, or bleeding oul due to perforation or the heart . . death
would have been within a matter of seconds to minutes” (A. 23).
7 Officei Inman testified that Eddings was not being questioned and
had simply spent the two hour period lacing the wall ‘ apparently by
his own choice” (A. 80).
“Trooper Spencer confirmed this statement by Eddings (A. 82).
Another Highway Patrolman, Kenneth Bailes, testified that later in
the evening, after Eddings had complained on three occasions about
7
The Juvenile Proceedings
On Tuesday, April 5, 1977, the morning after bis arrest,
Monty Eddings appeared before the Juvenile Division of the
District Court of Creek County, Oklahoma. His natural
parents had come from Missouri and were present (Cert. H.,
1, 002-003). The judge briefly explained that the district
attorney was seeking certification of their son for trial as an
adult, set a hearing for Friday, April 8th, and urged them to
retain counsel (Cert. H., 1, 005-008).
Three days later, Jay C. Baker of Tulsa, co-counsel in this
Court, appeared on behalf of Eddings.* * * 9 The District Attorney
a light being left on in his cell, he said to Officer Bailes, “ Now 1 have
shot one of you people, and I’ll get you too if you don’t turn this light
out” (A. 103).
9 Baker raised at the outset a number of objections to the proceed
ings. fie informed the court that he “spoke with Monty’s parents for
the first time this morning. Beyond that, all 1 know about this case is
what I’ve read in the Wednesday’s edition of the Tulsa Tribune.
There have [sic] been absolutely no opportunity for me to make a
cursive [sic] research of the law nor any kind of investigation into
whatever relevant facts there may be” (Cert. IT, 11, 005). Baker also
stated that although he “ was permitted to visit with [petitioner] in
his cell this morning . . . there were officers standing outside, and 1
wasn’t able to conduct any kind of conversation with him” (Cert. IE,
II, 006). (Baker was later to complain that “ on any occasion that I
have tried to speak with my client . . . it has all been in the presence
of a highway patrolman and someone from the Sheriffs office. Lasi
Saturday we had a psychiatrist interrogate Monty. A jailor was pres
ent throughout the entire process . . . As a matter of fact, if I go over
to the jail, I am not even permitted to see him until he gets a
clearance from the Highway Patrol” (Cert. IE, Ill, 005)).
Baker urged that “ [t]here are motions I would like to file” (Cert.
H., 11, 010), including a motion for a change of venue (Cert. H., II,
005). The court nevertheless refused to continue the case (Cert IE,
II, 011-012). It did recess until the afternoon to permit Baker to pre
pare, and did offer to accept any motions filed later (Cert. IE, II,
012).
8
presented testimony front the medical examiner (Cert. H., II,
022-028), Oklahoma Highway Patrol Officers Inman (Cert.
H., II, 106-109) and Bailes (Cert. H., II, 119-28), and each of
the passengers in the Eddings vehicle: Terrie Clevenger (Cert.
H., II, 029-050); Gary Molt (Cert. H., II, 052-070); Rhonda
Eddings (Cert. H., II, 070-080); and Timothy Thomas (Cert.
IT, II, 090-106) concerning the facts of the crime and
Eddings’ arrest and interrogation, in order to establish "pros
ecutive merit” (Cert. H., II, 005).10 11
During subsequent hearings before the Juvenile Division,
the District Attorney elicited testimony from Eddings’
Missouri probation officer (Stephen Dorn (Cert. H., Ill, OH-
071)); from a psychiatrist (R. D. Garcia (Cert. H., Ill, 072-
095; IV, 002-023)); from a psychologist (11. Brent Dietsche
(Cert. H., IV, 024-044)); from an intake counselor connected
with Oklahoma juvenile institutions (Don McAllister (Cert.
H., IV, 044-054)); and from a social worker lor the Oklahoma
juvenile system (Charles Caywood (Cert. H., IV, 055-084).
The principal thrust of this evidence was to show that al
though Eddings might conceivably be rehabilitated, the State
of Oklahoma possessed inadequate juvenile facilities to effect
his rehabilitation prior to his anticipated discharge lrom
juvenile custody at age eighteen. (See, e.g., Cert. PL, IV, 049-
054; 057-061)."
10 Under former OKLA. ST AT. tit. 10, § 1112, the State was obli
gated to demonstrate eight factors, including “ prosecutive merit,”
in order to obtain certification of a juvenile for adult trial.
11 The governing statue, former OKLA. S3 AT. tit. 10 §1139,
would have allowed the Department of Institutional and Social and
Rehabilitative Services (“ D1SRA” ) - the agency with respon
sibility for juvenile placement - to retain custody of Eddings or any
male juvenile offender until he attained the age of twenty-one. How
ever, a D1SRA supervisor testified that “ it is Departmental policy to
discharge from the custody of the Department all who have attained
the age of eighteen” (Cert. H., IV, 058-059).
9
Eddings presented the testimony of a behavioral scientist
(Richard Rettig (Cert. H., IV, 087-126)) and a psychiatrist
(Anthony C. Gagliano (Cert. IT, IV, 128-175; V, 004-083)),
both offering favorable prognoses for treatment. He also pre
sented to the court “ an instrument marked Waiver of Right
to Discharge on Majority which the Juvenile, his mother and
[Baker were) willing to execute for the Court pursuant to
§ 1139 (Cert. H., V, 083) (see Resp. Exh. 3), in order to
allow the Oklahoma authorities to “ retain custody until they
are satisfied that Monty Eddings has in fact been rehabilitated,
even though that period of time may be coextensive with his
life” (Cert. IT, V, 084).
The court subsequently entered an order certifying Eddings
to stand trial as an adult. The Oklahoma Court of Criminal
Appeals affirmed, Matter o f M.E., 584 P.2d 1340 (Okla. Cr.
App ), and this Court denied certiorari, Eddings v. Oklahoma
436 U.S. 921 (1978).
The Trial
On May 8, 1977, Monty Eddings entered a plea of nolo con
tendere to a charge of first degree murder in the District Court
of Creek County (A. 2). At the sentencing hearing, the Slate
presented some of the same witnesses whom it had put on to
show the facts surrounding the crime, Eddings’ arrest and his
.post-arrest statements at the certification hearing. 12 Their tes
timony, which we have previously summarized at pages 3-8
above, was apparently adduced in support of three statutory
12The State’s witnesses included: (i) Dr. Neal Hoffman (A. 18-23)
(medical examiner); (ii) Thomas D. Jordan (A 23-29) (ballistics ex
pert); (iii) Johnny Green (A 29-31) (passing motorist); (iv) Timo
thy Wayne Thomas (A. 31-44) (hitchhiker); (v) John Marquiess (A.
44-48) (passing motorist); (vi) Gary Molt (A. 48-71) (Eddings’
friend); (vii) Joe Inman (A. 71-81) (highway patrolman); (viii)
Leon Spencer (A. 81-86) (highway patrolman); (ix) Terrie
Clevenger (A. 86-99) (Rhonda Eddings’ friend); (x) Kenneth Bailes
(A. 99-103) (highway patrolman).
10
aggravating circumstances: (i) that the murder was especially
heinous, atrocious or cruel; 13 * (ii) that the murder was com
mitted for the purpose of avoiding or preventing a lawlul
arrest; 13 and (iii) that there existed a probability that the de
fendant would commit criminal acts of violence that would
constitute a continuing threat to society.15
In mitigation, Eddings produced the testimony of four ex
pert witnesses. Stephen Dorn, petitioner's Missouri probation
officer, 16 testified that he had first met Monty Eddings when
Eddings was fourteen and was referred to the juvenile au
thorities for four break-ins and for tampering with a motor
vehicle (A. 105-107). In investigating Eddings’ past, Officer
Dorn learned that, when Eddings was five years old, his na
tural parents were divorced (A. 106). front the time he was
five until he was fourteen, Eddings remained with his mother,
Mary Kinney, in Jasper County, Missouri (A. 109). During
this period, Ms. Kinney used alcohol excessively (A. 110),
and, according to Jasper County authorities, may have been
involved in prostitution (A. 110-1 ID. The report which Pro
bation Officer Dorn “ received from the Jasper County
Juvenile Court was . . . that . . . Monty could pretty much -
in their own language — do his own thing. He couid come and
go when he wanted to . . . starting at the age ot five.”
(A. 109). Observing that a childhood without rules or disci
pline often “ leads [to] a chaotic adolescence.” Officer Dorn
testified that when Monty Eddings turned fourteen, Ms. Kin-4’
ney sent him to his natural father, Ronald Eddings, “ because
she couldn’t control the child” (id.).
13 OK LA. ST AT. lit. 21, § 701.12(4).
,4OKLA. ST AT. tit. 21, § 701.12(5).
15 OK LA. ST AT. tit. 21, § 701.12(7).
“■Dorn’s title was Juvenile Officer, 26th District Circuit State of
Missouri (A. 104). Under Missouri law, Officer Dorn served both as
an investigator and as a probation official on juvenile cases (A. 104-
105).
11
Ronald Eddings proved a marked contrast to Ms. Kinney in
his child-rearing methods. Officer Dorn described him as
quite an authoritarian,” noting that “ Monty was always fear
ful of his father, because his father tended to overreact; or
rather than discuss things with him, would take it out in more
Physical means . . [bjealings, slapped, that sort” (A. 113).
According to Officer Dorn, Eddings’ step-mother was unable
to “ cope with the problems of a fourteen . . . year old male
child with serious emotional behavior” (A. 116) — indeed,
her reports to juvenile authorities on Monty Eddings “ in
dicated some sort of schism of thought” (id; see A. 126). In
Officer Dorn’s view,
“ Monty was very scared, I think, of his home situation
with his father. He was very hostile. Monty didn’t have
anyone he could turn to and discuss his problems; and I
think Monty was holding a lot of these things within him,
and what happened was just a combination of Monty
holding everything in and just releasing it all at one time.
Toward the end, he became very hostile and bitter.”
(A. 113).
Officer Dorn testified that Monty Eddings was adjudicated a
delinquent on November 28, 1975, on four counts of burglary
in the second degree and stealing, and one count of tampering
with a motor vehicle. He was placed on probation and left in
•the custody of his father (A. 107)17 During the following sum
mer, Eddings returned to live with his natural mother in
Jasper County and became involved in mail box vandalism
and an assault.18 These incidents resulted in a supplemental
petition and further adjudication of delinquency (A. 108), fol
lowing which Eddings was placed in a group home in the fall of
17 The Juvenile Court diagnosed Monty Eddings as someone who
“ lied . . . was deceitful and manipulative.” “ [H]e couldn’t trust peo
ple” (A. 120).
18 Officer Dorn explained that the assault charge arose from a
“street light” involving Eddings and other boys at a local drive-in
theatre (A. 118).
12
1976. He initially did well at the home (Cert. H. 35-39) but lat
er was accused ot several petty thefts (A. 108). lie was again
adjudicated a delinquent, and again placed on probation with
his father and step-mother. This was tour months belore he
ran away (id.).
Officer Dorn summarized that Monty Eddings’ actions deri
ved from “ a mother who didn’t have time tor him in Jasper
County . . . a stormy history of divorce; a . . . step-mother up
in Camdenton who he finally goes to live with who has no idea
how to raise a child, and who, herself, had problems with chil
dren; a father who just didn t have time tor anything but
doing his job” (A. 127J.
Eddings’ second witness in mitigation was Dr. H. B. J.
Dietsche, Chief Forensic Psychologist at the Eastern State
Hospital in Vinita, Oklahoma (A. 131). Dr. Dietsche testified
that he had administered a number of psychological tests to
Eddings. On the Wechsler Adult Intelligence Scale, Eddings
“ obtained an l.Q. score ot 88, which would place him in the
dull . . . average intellectual category . . . Making an extrapo
lation, I got a mental age ot approximately . . . fouiteen years
three months [to] fourteen years six months” (A. 133-134).19
He concluded from Eddings’ high scores on the sociopalhic or
psychopathic scale of the Addiction Research Center Invento
ry and the psychopathic deviancy scale of the Minnesota Mul-
tiphasic Personality Inventory that Eddings had developed a
“ sociopalhic personality” (A. 136). Dr. Dietsche indicated
that “ [t]he most recent studies . . . now think [sociopathy]
start[s] very early in life, and comes to a head more or less
around fifteen years of age” (A. 138), in part because adoles
19 Dr. Dietsche explained that “ the mental age concept breaks
down pretty well, between fourteen to sixteen years ol age (A.
134) and that, although the Stanford-Binet test computes mental
age from lest scores, the Wechsler Scale given to Eddings does not.
Dr. Dietsche’s estimate of fourteen years and six months was there
fore only an extrapolation from test data, not a direct test result (A.
135 136).
13
cents have “ to try to find a vocation; they have to be [able to]
. break[] away from the home ties; they have the inward
boiling of their own sexual impulses that are now coming to
the fore, . . . they have certain demands by others, society in
that they have to learn and adjust to; they still are insecure as
to what their ultimate life goals are to be; so they have quite a
lot thrown at them . . . ” (A. 138-139). Dr. Dietsche testified
that perhaps 30 percent of all sociopaths grow out ol their be
havior by their middle thirties, even without treatment
(A. 139).
Eddings’ third mitigating witness was Dr. Richard Rettig,
an Associate Professor of Psychology at Oral Roberts Univer
sity in Tulsa, Oklahoma (A. 145), and a consultant to the
Oklahoma Department of Institutional and Social Rehabilita
tive Services (A. 147). Dr. Rettig had interviewed Eddings
and reviewed both his psychiatric and psychological records as
well as the record of the certification hearing (A. 146-147).
Dr. Rettig diagnosed Eddings as “ antisocial,” meaning that
“ in his personality development there has been a great deal ol
blockage, l ie’s been unable to develop any mature basis to
make judgments [and] often acts out at a level to a five or ten
or twelve year old child” (A. 149). “ 1 would say, in my best
judgment, that his responses appeared to me to be several
years below his chronological age” (id.).
Dr. Rettig also expressed the opinion that Eddings’ condi
tion was “ [a]bsolutely treatable” (id.), and went on to de
scribe various treatment techniques (A. 150). Asked to desig
nate the cause of Eddings’ personality difficulties, Dr. Rettig
suggested that they “ com[e] from that total ambivalence in
his childhood, the lack of connectiveness, the lack of belong
ingness, the being torn from whatever roots he had in terms
of his mother, and a certain significant degree of hostility and
feelings of alienation, developed in my opinion from the
childhood experience of no roots” (A. 152).
Eddings’ final witness in mitigation was Dr. Anthony C.
Gagliano, a licensed psychiatrist in private practice in Tulsa,
Oklahoma (A. 165). Dr. Gagliano interviewed Eddings in the
14
Sapula County Jail.-0 He indicated that Eddings “ was very
upset about (his parent's] divorce” when he was five, “ (a]nd
he had always maintained the fantasy that they would remar
ry” (A. 168). His natural mother instead remarried a po
liceman from Joplin , Missouri, when Eddings was seven, and
Eddings responded with “ anger, hatred, rebellion, rejection,
loss” (id.). Dt. Gagliano told of one incident when Eddings
” . . . wanted to impress his mother or father. 1 don’t
know why he did it, but he washed down the walls, and
he thought it would be nice if the walls were clean. And
his [step-]father walked in, and 1 think removed his shoe
and hit him quite severely with his shoe for dirtying the
walls.”
(A. 170).’1 Dr. Gagliano stated that the incident engendered
“ Anger. 1 latred” (id.).
Dr. Gagliano diagnosed Eddings as suffering from “ an anti
social or a dissocial disorder,” characterized by an “ arrested
emotional development at age seven” (A. 171) and an
inability to display his emotions (A. 169). He stated that at the
time Officer Crabtree was shot, Eddings “ acted as a seven
year old seeking revenge . . . [against] the original cause of his
anger . . . the Policeman who married his mother, and who
stole his mother away” (A. 172). Eddings’ disorder could be
treated, Dr. Gagliano thought, though the treatment might
take “ many years — fifteen or twenty years of real intensive’"
therapy” (A. 171).
After the defense had rested and both sides presented clos
ing arguments, the court entered oral findings of fact and con
clusions of law. The court found that Eddings’ crime had been 20 21 *
20 Dr. Gagliano taped the entire interview with Eddings, the tape
was introduced into evidence as Respondent’s Exhibit 2 during the
certification hearing.
21 Eddings’ step-father was killed in a motorcycle accident nine
months after the marriage (A. 170).
15
heinous, atrocious and cruel;22 that the crime had been com
mitted for the purpose of avoiding or preventing lawful
arrest; 23 and, in light of the two utterances of Eddings to the
Oklahoma Highway Patrol Officers following his arrest, the
court also found “ beyond a reasonable doubt . . . that there is
a very strong likelihood that if the Defendant were released
that he would again commit a criminal act of violence that
would constitute a continuing threat to society” (A. 188).
Addressing the issue of mitigation, the court stated that
“ 1 think there is some authority in the State that the age
of the Defendant can be considered . . . [and] I have
22 “ In this regard, the Court particularly finds that insofar as the
heinous crime is concerned, that the definition that 1 have re
searched indicates to the Court that this was an extremely
wicked or shockingly evil crime. And this supports the Court
finding insofar as that aspect is concerned. Insofar as atrocious,
the Court finds beyond a reasonable doubt that this crime was an
atrocious crime. And 1 specifically find the definition of that
term to be outrageously wicked and vile. Insofar as cruel, the
definition of cruel that I have found indicates that it must be de
signed to inflict a high degree of pain, utter indifference to or
enjoyment of the suffering of others. I find one part of that par
ticular definition to be complied with beyond a reasonable
doubt, and that is that it was designed to inllict a high degree ol
pain, and was in utter indifference to the rights of Patrolman
Crabtree.”
(A. 187).
23 “ In this particular case, the Court finds without any question
from the testimony that this Defendant did not want to go back
to the authorities in Missouri, or be returned to his father or
mother. Or at least to be returned to the person who was at that
time charged with his supervision. And there isn’t any doubt in
the Court’s mind but that beyond a reasonable doubt the crime
was committed at that particular lime to avoid prosecution.
“ Insofar as a lawful arrest is concerned, of course the Court
feels that there was sufficient evidence to show that by reason of
the lights being on the patrol car, and the actual slopping of the
vehicle, that Trooper Crabtree’s intent was to make a lawful
arrest.”
(A. 187-188).
16
given very serious consideration to the youth of the De
fendant when this particular crime was committed . . .
On the other hand, the Court cannot be persuaded
entirely by the youthfulness of the fact that the youth was
sixteen years old when this heinous crime was commit
ted. Nor can the Court in following the law, in my opin
ion, consider the fact of this young man’s violent back
ground.
♦ * *
So not finding any mitigation other than the youthful
ness, and failing to find that it has sufficiently softened
the aggravating circumstances that the Court has found
beyond a reasonable doubt, the Court has no alternative
in this particular case other than to sentence Monty Lee
Eddings to death. And this will be the judgment and find
ing of this Court .” :j
(A. 188-189).
S U M M A RYOEARGUME N T
I
The imposition of a death sentence for an offense commit
ted by a child below the age of eighteen constitutes cruel and
unusual punishment forbidden by the Eighth and Fourteenth
Amendments. Every objective indicatot of contemporary so
cietal values points toward repudiation of the death penalty as
a punishment for young offenders. The past century, has, in1'
fact, witnessed the gradual evolution of an entirely separate
juvenile judicial and correction system, responding to so
ciety’s growing understanding of the special needs of children
before the law, and their unique potential for rehabilitation. 24
24 Unlike the capital statutes of many states, OKLA. STAT. tit. 21
§701.10 does not specifically enumerate mitigating circumstances
but instead provides merely that “ [iln the sentencing proceeding,
evidence may be presented as to any mitigating circumstances or as
to any of the aggravating circumstances enumerated in this act.” See
Appendix A, infra.
17
ifI' 1
I ‘
!
i . i
iI i
A
it'
The insistence on separate treatment for juvenile offenders
has coincided with a marked decrease in the actual number of
juveniles executed in this country, especially since the 1940s.
These evolving societal values are reflected in legislative
judgments on capital punishment. In some States, juvenile
offenders under eighteen are expressly exempted from capital
statutes; in most other States, the youth of the offender is an
enumerated mitigating circumstance. Juvenile court jurisdic
tional statutes overwhelmingly point to age eighteen as the
most appropriate legal boundary between youth and adult
hood. The ratification of the Twenty-Sixth Amendment adds
to the consensus recognizing the special significance of age
eighteen. An overwhelming agreement by the international
community that children under eighteen ought not suffer
execution sheds further light on societal standards. The ex-
teme reluctance of contemporary juries to impose capital sen
tences on offenders under eighteen completes the proof that
use of the death penalty against persons so young has become
an atavistic and discredited practice. Finally, what we have
learned during the past century about the special frailties of
the young, their still-incomplete moral, emotional and in
tellectual development during adolescence, suggests that
imposition upon them of the most severe and irrevocable
penal sanction wielded by society would violate the very core
of that “ human dignity” protected by the Eighth Amend-
• ment.
II
Petitioner also contends that the totality of mitigating fac
tors in his case requires that his death sentence be vacated as
unconstitutionally excessive and disproportionate, irrespec
tive of the Court’s decision on youth as an absolutely preclu
sive mitigating circumstance. Petitioner has presented un
controverted proof that his mental and emotional age was far
less even than his very young chronological age. He was an
emotionally disturbed youth whose violent outburst has spe
cific roots in the tragic neglect and physical violence which
18
surrounded his childhood. Despite his emotionally deprived
past, petitioner had no serious record of criminal behavior,
and psychologists and psychiatrists agree that he is neither
incorrigible nor beyond rehabilitative treatment.
Ill
Finally, petitioner asks the Court to vacate his death sen
tence because of plain constitutional error apparent from the
record. Although this point was neither asserted nor expressly
decided below, the sentencing judge’s explicit refusal to con
sider relevant mitigating circumstances constitutes an in
disputable violation of the Eighth Amendment requirement
subsequently announced in Lockett v. Ohio, 438 U.S. 586
(1978).
ARGUMENT
1
THE EXECUTION OE A YOUTH WHO WAS UNDER
THE AGE OF EIGHTEEN WHEN THE CRIME WAS
COMMITTED WOULD VIOLATE EVOLVING STAND
ARDS OF DECENCY REFLECTED IN HISTORY AND
PRECEDENT, IN LEGISLATION AND THE ACTUAL
BEHAVIOR OF CAPITAL JURIES, AND IN CONTEM
PORARY VIEWS AND UNDERSTANDING OE CHIL
DREN
9j
A. Introduction
In Gregg v. Georgia, 428 U.S. 153, 187 (1976) (opinion of
Justices Stewart, Powell and Stevens), this Court held that
“ the death penalty is not a form of punishment that may nev
er be imposed, regardless of the circumstances of the offense,
regardless of the character of the offender, and regardless of
the procedure followed in reaching the decision to impose it.’’
The Court nevertheless acknowledged that “ death as a
punishment is unique in its severity and irrevocability,” id.,
“ different in kind from any other punishment imposed under
our system of criminal justice.” Id., at 188. Since Gregg, it has
become a constitutional commonplace that the unique harsh
19
ness of the death penalty commands special Eighth Amend
ment concern. Gardner v. Florida, 430 U.S. 349 (1977);
Lockett v. Ohio, 438 U.S. 586 (1978); Beck v. Alabama. 447
U.S. 625 (1980). In particular, the Court has held that death is
an unconstitutionally excessive penalty for the crime of rape.
Coker v. Georgia, 433 U.S. 584 (1977); see also Eberheart v.
Georgia, 433 U.S. 917 (1977) (per curiam). One Justice has
concluded that capital punishment is a disproportionate pen
alty for the crime of murder “ without a finding that the de
fendant possessed a purpose to cause the death of the victim.”
Lockett v. Ohio, 438 U.S. 586, 624 (1978) (Justice White, con
curring in part and dissenting in part).
The issue presented by this case is whether the Eighth
Amendment permits the severe and irrevocable penalty of
death to be imposed upon a juvenile offender convicted of de
liberate murder. The Court in Gregg itself singled out an
offender’s youth as among the factors that might most “ miti
gate against imposing capital punishment.” Gregg v. Georgia,
supra, 428 U.S. at 197. See also Frojjitt v. Florida, 428 U.S.
242, 251 (1976) (sentencing judge must consider “ whether
the defendant’s youth argues in favor of a more lenient sen
tence than might otherwise be imposed” ); Jurek v. Texas, 428
U.S. 262, 273 (1976) (Texas statute permits jury to “ 'look to
the age of the defendant’ ” in determining sentence). The fol
lowing Term, in (Harry) Roberts v. Louisiana, 431 U.S. 633,
637 (1977) (per curiam), the Court struck down a statute
which imposed capital punishment on all oil'enders who stood
convicted of murdering a police officer, with no provision for
consideration of “ [cjircumstances such as the youth of the
offender.” See also Lockett v. Ohio, 438 U.S. 586, 597, 608
(1978) (mentioning age as a relevant mitigating factor); Bell
v. Ohio, 438 U.S. 637, 640-41 (1978) (same).
The Court has long “ [a]ssume[d] that juvenile offenders
constitutionally may be treated differently from adults.”
Bellotti v. Baird, 443 U.S. 622, 635 (1979). Justice Frankfurter
has cautioned against the assumption that adults and juveniles
should always stand in parity before the law: “ Children [have]
a very special place in life which the law should reflect. Legal
theories and their phrasing in other cases readily lead to fal
20
lacious reasoning if uncritically transferred to determination
of a State’s duty toward children.” May v. Anderson, 34} U.S.
528, 536 (1953) (Frankfurter J., concurring). In its opinions,
the Court has often indicated its underlying rationale behind
this distinction, explaining that “ during the formative years of
childhood and adolecence, minors often lack the experience,
perspective, and judgment to recognize and avoid choices that
could be detrimental to them.” Bellotti v. Baird, supra, 443
U.S. at 635. See, e.g.. Haley v. Ohio, 332 U.S. 596, 599 (1948)
(“ Aae 15 is a tender and difficult age lor a boy of any race. He
cannot be judged by the more exacting standards ol maturity
This is the period of great instability which the crisis of
adolescence produces.” )
The question now is whether the Eighth Amendment
methodology of Gregg and Coker, when applied to the factor ol
age, which this Court has thus consistently recognized as sig
nificant - and, in the context of capital punishment, as a
mitigating factor - requires that, for younger juveniles at
least, youth alone precludes the imposition of society’s most
severe and unique penalty. We contend that the Eighth and
Fourteenth Amendments do forbid the execution of juvenile
offenders under the age of eighteen at the time ot the commis
sion of their crimes. Following Gregg, and Coker, we rely not
alone upon “ basic concept [s] of human dignity at the core of
the [Eighth] Amendment,” Gregg, 428 U.S. at 182, but also
upon objective indicia that reflect society’s “ ’evolving stands
ards of decency,’ ” id., at 173, relating to the question ot
juvenile executions. Specifically, we will show that “ history
and precedent, legislative attitudes, and the response of juries
reflected in their sentencing decisions,” Coker, 433 U.S. at
592, all combine to express unmistakable contemporary
repudiation of death as a punishment for juvenile offenders.
To that evidence, we now turn.
B. An Historical Perspective
1. The common law tradition
At common law, children under seven were not liable for
felonious acts because they were viewed as incapable of form-
21
mg criminal intent, while, between seven and fourteen,
“ though an infant shall be prima facie adjudged to be doli inca-
pax; yet if it appears to the court and jury that he was doli
capax and could discern between good and evil, he may be
convicted and suffer death.” 25 Children fourteen years or
older, however, were deemed fully responsible tor their crimi
nal acts. Consequently, in the eighteenth and nineteenth cen
turies in England, “ [aldolescents as well as children could be
- and actually were - sentenced to death and even
executed ” 20 Sir Leon Radzinowicz reports a number of well-
known instances in which young children were sentenced to
death, including a ten-year-old boy convicted in 1748 at Bury
Summer Assizes for the murder of a five-year-old girl - and a
nine-year-old boy sentenced to death in 1833 tor stealing
printers’ colors worth twopence.28 While some historians have
suggested that the notoriety of such cases may indicate that
actual execution of young children was a comparatively rare
phenomenon, 29 we have no reason to doubt, with respect to
25 4 w. BL.ACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND 23-24 (1792); 1 HALE, PLEAS OF THE CROWN 25-
28 (1682).
261 L RADZINOWICZ, A HISTORY OF ENGLISH CRIMINAL
LAW AND ITS ADMINISTRATION FROM 1750. THE MOVE
MENT FOR REFORM 1 1 (1948) [hereinafter cited as
RADZINOWICZ, ENGLISH CRIMINAL LAW],
22 Id., at 12, citing FOSTER, CROWN LAW 72 (3d ed. 1792).
28 Id., at 14 n.39 citing20 PARL. DEB. 278 (3d Ser. 1833).
29 Knell, Capital Punishment: Its Administration in Relation to
IuvenHe Offenders in the Nineteenth Century and its Possible Administra
tion in the Eighteenth. 5 BRIT. J. DEL1NQ. 198 (1% 5) [hereinafter
cited as Knell, Capital Punishment], A. PLATT, THE CHILD
SAVERS- THE INVENTION OF DELINQUENCY 193-198 (2d ed.
1977) [hereinafter cited as PLATT, THE CHILD SAVERS). Knell
reports that he had “ found 103 cases of children [under fourteen]
being sentenced to death” between 1801 and 1836 at the Old Bailey
in London. “ Of these 103, not one was executed.” Knell, Capital
Punishment, at 199.
22
older adolescents, the contemporaneous statement made
“ [j]n 1785 [by] Sir Archibald Macdonald, then Solicitor-Gen
eral in Pitt’s government . . . in the House ol Commons that
out of every twenty offenders executed in London, eighteen
were under the age of twenty-one. 3,1
The available historical evidence indicates that the United
States, in the early to mid-nineteenth century, shared both
the common-law presumption against criminal law liability ot
children11 and the British practice of overturning or commut
ing ihe sentences of young children who did receive death
sentences.3’ As in England, however, older adolescents ap
pear not to have been favored by similarly lenient treatment.
^RADZINOWICZ, ENGLISH CRIMINAL LAW, at 14, citing IS
PARL. 111S. 889 (1785-86).
31 “The responsibility of children in the United Stales during the
nineteenth century was formulated according to traditional common
law principles. Many of the earliest commentaries on the criminal
law, such as The American Justice and The Crown Ciicuit Companion,
were merely abridgements of works by such English jurists as Coke,
Hale, Hawkins, and Blackstone. William Blackstone’s Commentaries
(1796) contain a systematic treatment of the criminal law and his
summary of the ciiminal incapacity of children was, in effect, incor
porated into American law.” PLATT, THE CHILD SAVERS, 198-
199.
33 Platt concludes after a review of contemporary judicial records'
and legal textbooks that only two children under age fourteen were
executed between 1806 and 1882 in this country, both of them
Negro slaves. See Godfrey v. State. 31 Ala. 323 (1858) (eleven-year-
old murdered four-year-old charge); State v. Guild, 10 N J.L. 163
(1828) (twelve-year-old confessed to killing elderly widow). “ 1 here
seems to be no justification for the proposition that children were
regularly executed; on the contrary, the courts were extremely hesi
tant to sentence a child under fourteen to death and, where such a
case arose, it was either appealed by the defense counsel or certified
by the irial judge to the state supreme court.” PLATT, THE CHILD
SAVERS, 211-212. Platt’s research appears bolstered by the case ol
People v. Teller, 1 Wheeler Crim. Law Cases 231 (N.Y. City Ct.
23
2. The discovery of the juvenile offender
In the 1820s, a fundamental change in the treatment ol
juvenile offenders began to unfold in the United States Alter
an intensive reform effort, the New York Legislature in 1825
agreed to charter the New York House of Refuge,33 thereby
granting to the Society for the Reformation of Juvenile Delin
quents the
“ power in their discretion to receive and take into the
House of Refuge to be established by them, all such chil
dren as shall be . . . convicted of criminal offenses . . . as
may . . . be proper objects.” 34
This novel development was prompted in large part by the
reformers’ concern over “ corruptive results ol locking up
children with mature criminals.” 35 An 1823 report by the So
ciety for the Prevention of Pauperism in the City ol New York
had posed the question as follows:
“ Can it be consistent with real justice, that delinquents
should be consigned to the infamy and severity of
punishments, which must inevitably tend to perfect the
work of degradation, to sink them still deeper into cor-
1823), in which the court, after citing British authorities concerning
the execution of young children, states: “ The Records of our Crirni-
* nal Courts furnish us with no such cases. The lowest period, that
* judgment of death has been inflicted upon an infant in the United
Slates, has never extended below sixteen years, or at least alter a
careful search none could be found, and it is presumed none can be
found.” Id. at 233.
33 See generally, R. PICKETT, HOUSE OF REFUGE (1967); 1 D
SCHNEIDER, THE HISTORY OF PUBLIC WELFARE IN NEW'
YORK STATE 1609-1866 (1938).
33 Act of Mar. 29, 1824, ch. 126 §4, [1824] N.Y. Laws 111, cited m
Fox, Juvenile Justice Reform: An Historical Perspective, 22 STAN. L.
REV. 1 187, 1 190 (1970) [hereinafter cited as Fox, Historical
Perspective J.
}i Fox, Historical Perspective, at 1189.
24
ruption, 10 deprive them of their remaining sensibility to
the shame of exposure, and establish them in all hardi
hood of daring and desperate villainy ? Is it possible that a
Christian community, can lend its sanction U) such a
process without any effort to rescue and save ?
New York’s responsive experiment with separate juvenile
correctional facilities was quickly adopted in a number ol
other States.37 A related development came with the opening
of the Chicago Reform School, which rejected New York’s
large dormitory or “ congregate” system in favor ol a program
structured along familial lines. As its superintendent stated in
his first annual report:
“ Our government of the school has been parental. We
have labored to introduce as much of the family as possi
bly [sic] into our management of the school. YVe have
made it our chief aim to fill a father’s place to these un
fortunate youth . . . The law of kindness has been our
role in regulating its discipline. 3i
The philosophy that juvenile institutions should strive to
treat children as might surrogate parents saw a judicial parallel
36 hi. citing Society for the Prevention of Pauperism in the City ol
New York, Report on the Subject of Erecting A House of Refuge for
Vagrant and Depraved Young People (1823).
a See, e.g.. Act of Mai. 23, 1826, ch. 47, [1826] Pa. Laws 133
(Pennsylvania); Act of Mar. 4, 1826, ch. 182, § 3, 11826] Mass. Laws
327 (Massachusetts).
>H Fox, Historical Perspectives, at 1208, quoting First Annual Report
of the Officers of the Chicago Reform School to the Board ol Guard
ians 14-15 (1856). The school’s efforts were somewhat short-lived:
Fox recounts that judges developed a practice of sentencing only the
most incorrigible youth to the school; that an Illinois Supreme Court
decision in People ex rel. O’Connell v. Turner, 55 111. 280, 8 Am. Rep.
645 (1870) seriously undercut the limits of the parens patriae notion
during the next several years; and that the Chicago Fire in 1871
forced the closing of the school. Fox, Historical Perspectives, 1215-
1221.
25
1
i
*'
i s s
|
in refinement of the theory that the state should stand as
parens patriae on behalf of wayward children. The most cele-.
brated nineteenth century articulation of this emerging ju
dicial attitude came in Ex Parte Crouse, 4 Whart. 9 (Pa. 1839)
(per curiam), in which the Pennsylvania Supreme Court
rejected a habeas corpus petiton brought by a father seeking
release of his child from Philadelphia’s House of Refuge:
“ The object of the charity is reformation, by training its
inmates to industry; by imbuing their minds with princi
ples of morality and religion; by furnishing them with
means to earn a living; and above all, by separating them
from the corrupting influence of improper associates. To
this end, may not the natural parents, when unequal to
the task of education, or unworthy of it, be superseded
by the parens patriae, or common guardian of the com
munity?” 39
Efforts to create separate correctional facilities for juveniles
and adults blossomed in the late 1890s and early 1900s into
the juvenile court movement, which swept rapidly across the
United States following the enactment in 1899 of the Illinois
Juvenile Court Act.40
“ The early reformers were appalled by adult procedures
and penalties, and by the fact that children could be given
long prison sentences and mixed in jails with hardened
criminals. They were profoundly convinced that a so
ciety’s duty to the child could not be confined by the con
cept of justice alone. They believed that society’s role was
not to ascertain whether the child was ’guilty’ or ‘inno
cent’ but ‘what is he, how has he become what he is, and
39 Expane Crouse, supra, 4 Whart. at 11.
40 Illinois Juvenile Court Act, (1899] 111. Laws 133. On the history
of juvenile court movement, see generally PLATT, THE CHILD
SAVERS: H. LOU, JUVENILE COURTS IN THE UNITED
STATES (1927); Mennel, Origins of the Juvenile Court: Changing
Perspective on the Legal Rights of Juvenile Delinquents, 18 CRIME &
DELINQ. 68 (1972).
26
what had best be done in his interest and in the interest
of the state to save him from a downward career.’ The
child - essentially good, as they saw it - was to be made
‘to feel that he is the object of [the state’s] care and
solicitude,’ not that he was under arrest or on trial. The
rules of criminal procedure were therelore altogether
inapplicable.”
In re Gault, 387 U.S. 1, 15 (1968).-" These iofty principles led
the reformers ‘‘to a peculiar system for juveniles, unknown to
our law in any comparable context” id. at 17.42 The juvenile
court system was characterized by a lack ol formal adversary
proceedings, by extensive prehearing investigation of an
offender’s background and social circumstances, and by an
attempt to prescribe for each offender a rehabilitative program
most fit for his needs.43
41 As one author has put it, “ [t]he critical philosophical position of
the reform movement was that no formal, legal distinctions should
be made between the delinquent and the dependent or neglected.
The adolescent who broke the law should not be viewed, and treated
as an adult otl'ender. . . He should not be considered an enemy ol so
ciety but society’s child who needs understanding, guidance and pro
tection. The goals of the program are rehabilitation and protection
from the social conditions that lead to crime.” Handler, The Juvenile
Court and the Adversary System: Problems of Function and Form, 1965
W1SC. L. REV. 7, 9-10.
43 Even prior to the 1899 Juvenile Court Act, a number ol Stains
had enacted certain limited procedural reforms to shield juvenile
offenders from full participation in the adult criminal process. See
PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, TASK FORCE REPORT:
JUVENILE DELINQUENCY AND YOUTH CRIME 2-3 (1967)
[hereinafter cited as PRESIDENT’S COMMISSION, JUVENILE
DELINQUENCY],
43See generally, Paulsen, Fairness to the Juvenile Offender, 41
MINN. L. REV. 547-550 (1957); Note, Juvenile Delinquents: The Po
lice, State Courts, and Individualized Justice, 79 IIARV. L. REV. 775
(1966).
27
The parens patriae idea implicit in the juvenile court acts
spread quickly. By 1910, at least 34 States had enacted some
form of juvenile court statute,44 and Professor Julian Mack
could assert that “ [t]he past decade marks a revolution in the
attitudes of the state toward its offending children.” 43
It is well-known that during the succeeding half century,
every State has chosen to adopt comprehensive juvenile court
systems.46 These systems have been upheld against repeated
legal attack ‘‘on the theory that the state is merely acting as
parens patriae for the youngster’s protection in the [same] way
as it does in a guardianship matter and not accusing the child
with a view to punishment as it does in a prosecution for
crime.” 47
These statutory reforms have not come from slate leg
islatures alone. In 1950 Congress enacted federal legislation to
accommodate the special needs of young offenders. The Fed
eral Youth Corrections Act,48 under which federal judges are
obligated to consider the special sentencing alternatives cre
ated by the Act before sentencing any youth between the ages
of sixteen and twenty-two, was ‘‘an outgrowth of recommen
dations made by the Judicial Conference of the United
States,” and was expressly ‘‘designed to provide a better
method for treating young offenders convicted in federal
44 RUSSELL SAGE FNDN., JUVENILE COURTS IN THE
UNITED STATES 124(1910).
45 Mack, The Juvenile Court, 23 HARV. L. REV. 104 (1909).
■<0See Kent v. United States, 383 U.S. 541, 554 n.19 (1966). Cur
rent juvenile statutes in force in each State are cited and summarized
in S. DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE
SYSTEM (2d ed. 1980); see also M. LEVIN & R SARRI,
JUVENILE DELINQUENCY: A COMPARATIVE ANALYSIS OF
LEGAL CODES IN THE UNITED STATES (1974).
47 Paulsen, Fairness to the Juvenile Offender, 41 MINN. L. REV.
547, 549 (1957), and cases cited therein at n.10.
48 18 U.S.C. § 5005 etseq.
28
courts in that vulnerable age bracket, to rehabilitate them and
restore normal behavior patterns.’ Dorszynski v. United
Suites. 418 U.S. 424, 432-33 (1974). Congress has also enacted
a separate statutory scheme to cover federal juvenile offen
ders under eighteen, the Federal Juvenile Delinquency Act,41
and has dealt with juvenile offenders in other legislation as
well.'" The federal executive branch has commissioned a
number of national studies during the past fifty years aimed at
examining the juvenile justice system and recommending im
provements. '1
This evolving special concern for juvenile offenders has also
been reflected in judicial decisions in those States which per
mit their appellate courts to reduce criminal sentences on
grounds of excessiveness. Here, the mitigating effect of youth
has been widely recognized.52
« 18 U.S.C. § 5031 etseq.
50 Juvenile Justice & Delinquency Prevention Act of 1974, 42
U.S.C. § 5601 et seq.; Juvenile Delinquency Prevention and Control
Act, 42 U.S.C. § 3801 et seq.
51 See NATIONAL COMMISSION ON LAW OBSERVANCE
AND ENFORCEMENT: THE CHILD OFFENDER IN THE FED
ERAL SYSTEM OF JUSTICE (1931); PRESIDENT’S COMMIS
SION, JUVENILE DELINQUENCY; NATIONAL ADVISORY
COMMISSION ON CRIMINAL JUSTICE STANDARDS AND
COALS, JUVENILE JUSTICE AND DELINQUENCY PREVENT
TION (1976).
52 See, e.g.,: Alabama: Bracewell v. State,-----So.2d------(Ala. Cr.
App. 1980) (“ [W]e would likewise direct the trial couri to carefully
reconsider the imposition of the death sentence where two mitigating
circumstances weigh heavily in the appellant’s favor, i.e., her young
age and the dominance of the husband, her senior by several years.”
Id. a t___ ).
Alaska: Troyer v. State, Adv. 2138, 614 P.2d 313 (1980) (court
reduces burglary sentence of 18-year-olds because of youth, first
offense); Ahvik v. State. Adv. 2123, 613 P.2d 1252 (1980) (court
reduces rape sentence ot an 18-year-old because of youth, history ol
family abuse).
29
Arizona: State v. Maloney, 105 Ariz. 348, 464, P.2d 793, cert, denied,
400 U.S. 841 (1970) (court reduces death sentence imposed at retrial
on defendant who killed his parents at age 15. “ The defendant has
committed a heinous crime, the sheer brutality of which unques
tionably shocked the jury . . . His trial testimony on the issue of self-
defense was unbelievable and repulsive. Had he been of mature age
the death penalty would have gone undisturbed by this court . . . Be
cause of his immaturity we are persuaded that he should not die
. . . .” Id.. 105 Ariz. at 360, 464 P.2d at 80S.); State v. Telavera. 76
Ariz. 183,261 P.2d 997 (1953) (court reduces rape sentence. “ [W]e
feel that the wrong may be ascribed more to the follies ot youth in
this era of confusion and frustration than to a wicked and depraved
heart. Defendant was approximately 17 years of age at the time, im
mature both in judgment and exercise of discretion.” Id., 76 Ariz. at
187, 261 P.2d at 1000.)
Colorado: People v. Colien,___ Colo. ----- , 617 P.2d 1205 (1980)
(court reverses as excessive 20-year second-degree-burglary sen
tence of a 24-year-old with no prior record).
Connecticut: State v. Comstock, 25 Conn. Supp. 453, 207 A.2d 276
(1965) (court suspends sentence for breaking and entering and theft
because defendant was 16); State v. Rodriguez, 25 Conn. Supp. 350,
204 A.2d 37 (1964) (court reduces manslaughter sentence, in part
because “ (t]he defendant has no prior record and is twenty-one years
of age,” id., 25 Conn. Supp. at 352, 204 A.2d at 37-38).
Florida: Vasil v. State, 374 So.2d 465 (Fla. 1979) (court reduces 15-
• ‘ year-old defendant’s death sentence).
Idaho: State v. Linebarger, 71 Ida. 255, 232 P.2d 669 (1951) (court
reduces sentence for rape. “ (A) boy of Ave/i/)'years of age should not
be sent to the penitentiary and his life completely ruined . . . ” Id.,
71 Idaho at 273, 232 P.2d at 682.)
Illinois: People v. Wilkins, 36 111. App. 3d 761, 344 N.E.2d 724 (1976)
(court reduces murder sentence. “ At the time of trial the defendant
was 17 years of age and had no prior criminal record. He was attend
ing high school and would have graduated but for the occurrence. Al
though the nature of the crime is extremely serious, the sentence
imposed does not adequately reflect the possibility of the defendant’s
rehabilitation.” Id., 36 111. App. 3d at 767, 344 N.E.2d at 729.); Peo
ple v. Howell, 16 111. App. 3d 989, 307 N.E.2d 172 (1974) (court
30
reduces attempted murder sentence. "Defendant has a juvende
record, but while in the juvenile system he received a certificate lor
completing a course in drafting, and after ieaving the juvenile system
went to the Gateway House, a rehabilitation center. This is his first
felon v conviction . . . Many of his problems may have stemmed from
an unstable family life and limited job opportunities.” Id.. 16 111.
App.3d at 994, 307 N.E.2d at 175.)
Kentucky: Workman v. Commonwealth. 429 S.W.2d 374 (Ky. 1968)
(court reduces sentence of life without parole lor rape. Such a sen
tence "shocks the general conscience of society today and is intolera
ble to fundamental fairness. The intent of the legislature was to deal
with the incorrigible individual who presented a constant threat to
society; incorrigibility is inconsistent with youth.” Id., 429 S W 2d at
378); Frvrear v. Commonwealth, 507 S.W.2d 144 (Ky. 1974) ( It is
true that we have excepted juvenile offenders from the imposition ol
a sentence to life without benefit of parole. The decision to do so was
not whimsical. It was based on the fact that juveniles have historically
been labeled as a separate class. We think the decision is a rational
one.” Id.. 507 SAV.2d at 146).
Louisiana: State v. Sepulvado, 367 So.2d 762 (La. 1979) (couit
reduces statutory rape sentence ol an 18-year-old), State v. Cox, 3b)
So.2d 118 (La. 1979) (court reduces consecutive sentences for armed
robbery and attempted murder where defendant was a 23-year-old
first offender with no prior history of violence.)
Mississippi: Coleman v. State, 378 So.2d 640 (Miss. 1979)(court
reduces death sentence of a 16-year-old. “ Only after being fired upon
did the 16-year-old Coleman shoot. Again, Coleman had the oppor
tunity to shoot [the victim’s wife], who was an eyewitness, but did
not.” )
Montana: State v. Coughlin. Mont. Sentence Review Div , 176 Mont.
7 A (1978) (review division reduces sentence "based upon the age of
the defendant and the recognized chance lor rehabilitation ); State
v. Stevenson, Mont. Sentence Review Div., 152 Mont. 31A (1968)
(review division reduces sentence where defendant “ is quite young
and it is thought that there is a good chance for rehabilitation in this
case” ).
Nebraska: State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977)
(court reduces death sentence of a 16-yeai-old. “The issue is not
31
whether his age ‘excuses’ the murder. Obviously it does not, and de
fendant has been convicted of premeditated murder . . After weigh
ing the aggravating and mitigating circumstances in this case we con
clude that the defendant’s age at the time of the crime and the
absence of any significant criminal record mitigate strongly against
the imposition of the death penalty upon Rodney Stewart; and that
the public will be served and justice done by sentencing him to a
term of life imprisonment.” Id., 197 Neb. at 524-527, 250 N.W.2d at
865-866.); State v. Hubbard, 200 Neb. 410, 263 N.W.2d 847 (1978)
(court reduces robbery and larceny sentence of an 18-year-old in
view of youth and lack of substantial prior record).
New Jersey: State v. Blanton, 166 N.J. Super. 62, 398 A.2d 1328
(1979) (court reduces sentence for assault and battery ol policeman
because defendant was only 19 years old, had a disadvantaged back
ground and no prior criminal record); State v. Spinks, 66 N.J. 568.
334 A.2d 23 (1975) (court affirms sentence reduction for armed rob
bery because of defendant’s age, immaturity and lack of prior
record), State v. Bess. 53 N.J. 10, 247 A.2d 669 (1968) (court
reduces sentence for second degree murder because of defendant's
age, lack of prior record and good family).
New York: People v. Hiemel, 49 App Div. 2d 769, 372 N.Y.S.2d 730
(1975) (court reduces sentence for first degree murder where the 16-
year-old defendant has used time in prison to become “ a classic ex
ample of the rehabilitation heights attainable within our existing pen
al system by an inmate desirous of taking advantage of the educa
tional facilities available.” Id., 49 App. Div.2d at 110, 372 N.Y.S.2d
at 731), People v. Martinson, 35 App. Div.2d 521, 312 N Y S.2d 281
(1970) (court reduces homicide sentence in view of defendant’s
youth and minor role in crime).
Oklahoma: Ezell v. State, 489 P.2d 781 (Okla. Cr. App. 1971) (court
reduces murder sentence because evidence was not strong and de
fendant was 16 years old). Bluejacket v. State. 91 Okla. C'rim. 164.
217 D.2d 848 (1950) (court reduces manslaughter sentence in light
of facts where defendant was 18 years old).
Pennsylvania: Commonwealth v. O'Brien,-----Pa. ------ , 422 A.2d
894 (1980) (court vacates sentence for robbery of a youthful defend
ant when “ [tlhe lower court made no reference to the many factors
he was required to take into consideration . . . No mention is made ot
appellant’s prior criminal record, his age, his personal characteristics.
32
To be sure, despite all of the judicial and legislative concern
expressed for youth, there is widespread recognition that few
of the early goals of the juvenile reformers have been met. j)
Indeed, “ revisionist” critics now insist that the original inten
tions of the reformers were more socially repressive and less
benevolent than had long been assumed,54 * 56 and that methods
and procedures devised expressly to aid juveniles may in fact
or his potential for rehabilitation.” Id.,-----Pa. a t ------ , 422 A.2d at
896); Commonwealth v. Green, 396 Pa. 137, 151 A.2d 241 (19>9)
(court vacates death sentence imposed on youth aged 15-3/i. [Hlis
age is an important factor in determining the appropriateness ol the
penalty and should impose upon the sentencing court the duty to be
ultra vigilant in its inquiry into the makeup ol the convicted mur
derer. T hat youthful age is an important factor is graphically illustra
ted by the fact that so far as our research can ascertain, no person
under the age of 16 years and only one person under the age of 19
yeais has ever suffered the death penalty in this Commonwealth.
Id., 396 Pa. at 147-148, 151 A.2d at 246.)
Tennessee: Mamno v. State, 539 S.W.2d 824 (Tenn. Cr. App. 1976)
(court reverses denial of probation of larceny sentence to a 20-year-
old. “ The defendant is a first offender with no criminal record ol any
kind and, according to the prosecutor, no history ol drug involve
ment. lie comes from a broken home and had dropped out ol high
school afier the tenth grade . . . .” Id., 539 S.W.2d at 827).
“ While there can be no doubt of the original laudable purpose of
juvenile courts, studies and crituques in recent years raise serious
questions as to whether actual performance measures well enough
against theoretical purposes to make tolerable the immunity ol the
process from the reach of constitutional guarantees applicable to
adults.” Kent v. United Slates, 383 U.S. 541, 555 (1966). See
McKeiver v Pennsylvania, 403 U.S. 528, 534 (1971); PRESIDENT S
COMMISSION ON LAW ENFORCEMENT AND ADMINISTRA
TION OF JUSTICE: THE CHALLENGE OF CRIME IN A FREE
SOCIETY 79-81 (1967) [hereinafter cited as PRESIDENT S COM
MISSION: CHALLENGE OF CRIME].
s*See, e.g., PLATT, THE CHILD SAVERS, 176-192; Fox,
Juvenile Justice in America: Philosophical Reforms, 5 HUMAN
RIGHTS 63 (1975).
33
have proven detrimental.” Dissatisfaction with the evolution
of the juvenile system has been manifested in a number of
ways. Perhaps most notable have been this Court’s decisions
imposing on the juvenile courts certain basic requirements of
due process. Kent v. United States, 383 U.S. 541 (1966); In re
Gault, 387 U.S. 1 (1967); In re Winship, 397 U.S. 358 (1970);
but c f DeBacker v. Brainard, 396 U.S. 28 (1969); McKeiver v.
Pennsylvania, 403 U.S. 528 (1971). However, the Court has
insisted that, in imposing these requirements, it does not in
tend to compromise society’s special legal treatment of
juvenile offenders. “ It is claimed that juveniles obtain benefits
from the special procedures applicable to them which more
than offset the disadvantages of denial of the substance of
normal due process. As we shall discuss, the observance of
due process standards, intelligently and not ruthlessly admin
istered, will not compel the States to abandon or displace any
of the substantial benefits of the juvenile process.” In re
Gault, supra, 387 U.S. at 21. Dissatisfaction has also sparked
efforts at correctional reform, including legal claims that
juvenile offenders have a “ right to treatment” that can be ju
dicially compelled when they are placed in juvenile correc
tional facilities.”
"See, e.g., RUSSELL SAGE FNDN. JUVENILE DELINQUEN
CY - ITS PREVENTION AND CONTROL 31 (1966).
56 See, e.g.. Nelson v. Heyne, 491 F.2d 352 (71h Cir.), cert, dented,
417 U.S. 976 (1974); Creek v. Stone. 379 F.2d 106, 109 (D C. Cir.
1967); MartareUa v. Kelley. 349 F. Supp. 575 (S.D.N.Y. 1972);
Inmates of Boys Training School v. AJJIeck, 346 F. Supp. 1354 (D.R.I.
1972); Wyatt v. Stickney, 344 F. Supp. 373 (M.D. Ala. 1972); Renn,
The Right to Treatment and the Juvenile, 19 CRIME & DELINQ. 477
(1973); Kittrie, Can the Right to Treatment Remedy the Ills of the
Juvenile Process? 57 GEO. L.J. 848 (1969). Kittrie has formulated
the theory behind the right as follows: “ This concept is founded
upon a recognition of the concurrency between the slate’s exercise of
sanctioning powers and its assumption of the duties of social respon
sibility. Its implication is that effective treatment must be the quid pro
quo for society’s right to exercise its pa retis patriae controls.” Id. at
870.
34
But these adjustments in the juvenile process have not
altered or obscured the significance of its historical develop
ment for purposes ol the present case. Virtually none ol
“ [t]he serious critics ot the juvenile court experiment . .
question the initial decision that adolescents ought to be han
dled in a legal process separate from adults. The battle is over
the treatment of adolescents within the separate process.” 5
Indeed, one writer has suggested that the agenda ot today s
skeptical critics — keeping children out ol large, coercive
institutions; diverting children from the court; creating radi
cal alternatives” — adheres remarkably closely to, and
reaffirms the very ideals of, the original shapers ol the
juvenile courts.57 58
3. The impact on capital punishment of society’s changed
attitudes toward juveniles
The transformation in society’s attitude toward juvenile
offenders, hailed expansively by Dean Roscoe Pound as "one
of the most significant advances in the administration ol jus
tice since the Magna Carta,” 59 has inevitably effected a sub
stantial change in society’s willingness to impose and execute
capital sentences against juveniles. We noted above that,
57 Handler, The Juvenile Court and the Adversary System: Problems of
Function and Form, 1965 W1SC. L.REV. 7, 8. See PRESIDENT’S
COMMISSION: CHALLENGE OF CRIME, at 81 (“ The Commis
sion does not conclude from its study of the juvenile court that'the
time has come to jettison the experiment and remand the disposition
of children charged with crime to the criminal courts of the country.
As trying as are the problems of the juvenile courts, the problems of
the criminal courts, particularly those of the lower courts that would
fall heir to much of the juvenile court jurisdiction, are even graver;
and the ideal of separate treatment of children is still worth pursu
ing” )
58Schultz, The Cycle of Juvenile Court History, 19 CRIME &
DEL1NQ. 457, 474-476 (1973).
59 Quoted in Kittrie, Can the Right to Treatment Remedy the Ills of
the Juvenile Process?, 57 GEO. L. J. 848, 849 (1969).
35
unlike very young children, older adolescents in mid-nine
teenth-century England and the United Stales do not appear
to have been spared the full force of capital penalties applica
ble to adults.60 The data we next set before the court demon
strate that a precipitous decline in the number of juvenile
executions has taken place since that era.
In England, the decline was accompanied, and perhaps
prompted, by express legislative changes described in The
Royal Commission Report on Capital Punishment:
“ The Children Act, 1908, provided that a person under
16 years of age at the time of conviction should not be
sentenced to death but should instead be sentenced to be
detained during His Majesty’s pleasure. This provision,
which applied both to England and Wales and to Scot
land, was extended by the Children and Young Person
Act, 1933, . . . to persons under 18 at the time of convic
tion; and was further extended by section 16 of the Crim
inal Justice Act, 1948, . . . to persons under 18 at the
time when the offence was committed. No person under
18 years of age had in fact been executed since 1887.” !
In this country, however, no similar broad legislative enact
ments occurred. Yet available records show a decline in the
number of juvenile executions during the past seventy-fiv e
years, although no thorough accounting is possible because of
the incompleteness of earlier records. Prior to the 1860s, most
executions were held locally in the county of conviction, and
whatever legal records may exist have never to our knowledge
been compiled. Only in the latter half of the nineteenth and
the early twentieth centuries did Stales gradually begin to re
quire that executions be conducted under state, rather than
county, authority at a central location, usually a state prison.6-’
6USee pp. 21-22 supra.
61 ROYAL COMMISSION ON CAPITAL PUNISHMENT 1949-
1953. REPORT (H.M.S.O. 1953) (Cmd. 8932) 64-65.
62 W. BOWERS, EXECUTIONS IN AMERICA 31 (1974); see
also id. at 40, Table 2-3, for figures on the numbers of state-imposed,
locally imposed, and illegal executions in each decade from 1890
through 1960.
36
The most complete source of data available deals only with
these state-imposed executions. It is the Teeters-Zibulka in
ventory, “ Executions Under State Authority: 1864-1967,” 63 *
which collects information about 5,707 executions carried out
during these hundred years. Although data on the ages ol all
persons executed is not available in this inventory,63 a suffi
ciently large sample (55%) exists to obtain highly instructive
information. Moreover, since age information is more often
missing in earlier cases, the absence ot data will, il anything,
bias this review against the claim of an extensive decline in
juvenile executions. We should note that the ages given in the
Teeters-Zibulka survey appear to be those of the condemned
at the time of execution, not at the time of the commission of
the crime. However, many of these cases, especially in earliei
decades, were never appealed, so that execution followed
commission of the crime within a matter ot months.65 Indeed,
even in the late 1950s, the mean elapsed time between sen
tence and execution in most States, especially Southern
States, rarely exceeded twenty months.66
To obtain an historical perspective on juvenile execution
patterns, we have identified every name listed in the Teeters-
Zibulka inventory on which age information exists. All of
Id., at 200-401.
<>-* “ Most of the information in the Teeters-Zibulka inventory was
supplied by Wardens from the records of the Department of Correa-*--
lions of the various states . . . The accuracy and completeness of
these data naturally depend upon the kinds of records kept in the
various states . . . In particular, information on race and age at
execution was simply not part of the record in some states: race is
missing for 13.9 per cent of the executions and age for 45.0 percent.”
Id., at 32.
65 See Bailey, Deterrence and the Celerity of the Death Penalty: A Ne
glected Question in Deterrence Research, 58 SOCIAL FORCES 1308,
1315 (1980), and Table 1 therein. (A copy of this table is set forth in
Appendix B, inf/a).
66 Id.
37
these names have been grouped in chronological order, by-
state, and designated with the original Teeters-Zibulka num
ber to facilitate comparison with the original inventory. Beside
each name is an indication of age, race, and crime. This infor
mation is set forth in Appendix C, infra.
From the data in Appendix C, we have developed the two
tables which appear immediately below. Table One indicates
the numbers of reported executions by age (ages 16 through
19), by race, and by decade.
TABLE ONE
Age Age Age Age Age Age Age Age
I6B 16W 17B 17 W 18B 1sw 19B 19W Totals
1864-1939 4 2 16 6- 31 8 26 21 114
1940-49 6 1 11 2 17 0 15 6 58
1950-54 0 0 2 0 2 0 8 2 14
1955-59 0 0 2 0 3 2 1 1 9
1960-67 0 0 1 0 0 0 1 0 2
Totals 10 3 32 8 53 10 51 30 197
U
.
55II
VV = While
Table Two presents in summary form the last reportei
execution of inmates ages 16 through 19, by race, State, am
date.
TABLE 2
• ■ In ven- Date
* tory of
Age Race Name Stale Number Execution
16 B Lee James Allen Georgia 274 1946
16 W Donald Frohner Ohio 288 1948
17 B Joe Henry Johnson Alabama 148 1961
17 W Louis V. Hand Ohio 267 1944
18 B Jeremiah Reeves Alabama 144 1958
18 W Henry Matthews New York 580 1955
19 B Orelander Jones Georgia 414 1963
19 W William Byers New York 587 1956
Examination of this tabular information yields several use
ful observations:
(1) The number of juveniles executed declines markedly
from the 1940s through the 1960s. While 58 persons under
38
age 20 were executed during the decade of the 1940s, only 23
(39.7% of the 1940s total) were executed in the 1950s, and
only 2 (3.5% of the 1940s total) in the 1960s. The reduction in
the total number of adults and juveniles executed during this
period, while also marked, was not nearly so steep as for
juvenile offenders alone: 1174 persons were executed during
the 1940s; 682, (58% of the 1940s total) in the 1950s; and 191
(16% of the 1940s total) in the 1960s. Thus, using either
absolute or relative measures, the execution of juveniles was
increasingly repudiated during this period.
(2) The execution of younger juveniles, those sixteen or
seventeen, virtually ceased after the 1940s. Only live 16- or
17-year-olds were executed after 1950, only twelve 16-, 17-,
or 18-year-olds during the same period.
(3) A dramatic difference is exhibited in virtually every
decade and in every age category between black offenders and
white offenders. A total of 146 blacks as compared to 51
whites below age 20 are reported to have been executed dur
ing the entire period. Thus, although blacks represented
54.5% of all executed offenders classified by race,67 they com
prised 74.1% of those under 20. Only two 16-, 17-, or 18-year
old white children were executed after the 1940s as compared
to 10 black children of the same ages. In many of the Southern
states, virtually every juvenile offender executed throughout
the period was black. (See, for example, Alabama, Florida,
Georgia and Virginia in Appendix C, infra). Following a thor
ough analysis of the Teeters-Zibulka data on age, race and
offense,68 Professor Bowers observes:
“ [W]e have seen that among some 5,707 persons
executed under state authority over the past one hun
dred years, blacks were . . . younger on the average than
whites at execution, whatever their offenses and whether
or not they had appeals . . .
67 w. BOWERS, EXECUTIONS IN AMERICA 78, Table 3-1
(1974).
68 w. BOWERS, EXECUTIONS IN AMERICA 71-107 (1974).
69 Id., at 102.
39
It is impossible to say whether the differential treatment of
young black offenders reflects in part the influence of race
upon decisions by juvenile courts to transfer or relinquish
jurisdiction to adult criminal courts.70 Whatever its causes, a
heavy concentration of blacks among those juveniles
executed may suggest more widespread acceptance of the
death penalty for black juvenile offenders than for juveniles as
a whole. Looking only at white offenders, we see from Table
Two that no persons under age eighteen have been executed
since 1948.
One of the Slates with the greatest number of executions
during the 1864-1967 period, California, 71 did not have infor
mation on either age or race accessible to Teeters and Zibulka
during the period following 1938. Thus, complete California
statistics are not reflected in the Teeters-Zibulka inventory or
in our discussion above. However, independent studies of
those persons executed in California provide a complemen
tary portrait to the findings on age reflected in the Teeters-
Zibulka inventory. One such study reveals that out of a total
of 187 persons executed between 1938 and 1963,77 only one
person was under 20 years of age.73 (Less than two years inter
vened between sentence and execution for the vast majority
70Studies not focused upon capital offenses in particular have
Tound that race may play a role in juvenile court transfers of serious
youthful offenders to adult courts. Keiter, Criminal or Delinquent: A
Study of Juvenile Cases Transferred to the Criminal Court, 19 CRIME
& DELINQ. 528, 531 (1973); Thornberry, Race, Socioeconomic
Status and Sentencing in the Juvenile Justice System, 64 J. CR1M.L., C.
& P S. 90 (1973).
71 W. BOWERS, EXECUTIONS IN AMERICA 33-35, Table 2-1
(1974): California had 501 reported executions during the period.
72The study does not include data following 1963. However, the
Teeters-Zibulka inventory indicates that only one person, Aaron
Mitchell, aged 37, has been executed in California since 1963.
73 Carter, The Death Penalty in California: A Statistical and Com
posite Portrait, 15 CRIME & DELINQ. 62, 66, Table 7 (1969).
40
of these inmates.)74 A second study, prepared by the Cali
fornia Department of Corrections, confirms this information
for the years 1943 through 1963.7>
To complete our review of the available historical informa
tion, we turn finally to data concerning the ages ol those
under sentence of death in late 1971, just prior to this Court s
decision in Furman v. Georgia, 408 U.S. 238 (1972). Accord
ing to the Justice Department, 14 out o! 620 persons undei a
death sentence on December 31, 1971 were below age 20.70 *
Neither the names, exact ages nor crimes of the oflenders are
indicated in this source. The figure ol 14 thus does not reflect
the number below age 18 who would eventually have been
executed, since none ol these had exhausted their judicial ap
peals, and none had made final clemency requests to their re
spective governors. Other data reviewed would strongly sug
gest that the total of 14 included a large proportion of 18- and
19-year olds, a disproportionate number of them black.
While the data above provide, we believe, a reasonably ac
curate picture of the actual incidence of juvenile executions
during the past 50 to 75 years, it does not purport to indicate
what greater number o! juveniles may have been sentenced to
death — though not executed - during this period. We know
of no central source from which to obtain such capital sen
tencing information, but would certainly expect that addi
tional numbers of sixteen-, seventeen-, and eighteen-year-
74 i(j Table 6. 158 out of 187 were executed less than 700 days af
ter being sentenced.
15CALIFORNIA DEPARTMENT OF CORRECTIONS, RE
SEARCH DIVISION ADMINISTRATIVE STATISTICS SEC
TION, EXECUTIONS IN' CALIFORNIA: 1943 THROUGH 1963,
Table 2 (1965).
70 UNITED STATES DEPT. OF JUSTICE, LAW ENFORCE
MENT ASSISTANCE ADMINISTRATION, NATIONAL
PRISONER STATISTICS BULLETIN, No. SD-NPS-CP-1, CAP
ITAL PUNISHMENT 1971-72, 43-44, Table 11 (Dec. 1974).
41
olds were given death sentences which were never carried out.
The reasons why the lives of these juvenile offenders were
spared are no doubt varied. Yet review of those published
executive clemency decisions accompanied by explanations
indicates that the youth of the offender has often been
deemed the decisive factor in commuting or reducing both
death sentences and lesser sentences. In one influential early
treatise on clemency, 77 * the critical role of youth in clemency
decisions was made clear:
“ Age is so entwined with all criminality and punishment
that it cannot well be eliminated. Youth is so frequently
involved with character, criminal intent, guarantee of
employment, degree of punishment, and the question of
moral guilt that it must be given weight.” ;s
Discussing capital cases, the treatise grouped extreme youth
(or age) together with "weak mentality” and "extraordinary
provocation” as among those exceptional circumstances most
calling for the exercise of clemency:
"There are capital cases in which the circumstances of
the commission of the crime, or the qualities, or the con
dition of the culprit, although legal guilt is undoubted, at
once signal a middle ground and in which the thought of
the extreme penalty shocks the average mind . . . When
a case presents features which induce such a state of
mind there can be no doubt that as to the punishment at
least the case is exceptional and that natural equity calls
for its modification. Nor can action to that end be a
misinterpretation of the people’s will. Cases of extreme
youth or age, weak mentality, extraordinary provocation
or other extenuating circumstances . . . belong to this
class.” 79
77 W. SMITHERS, TREATISE ON EXECUTIVE CLEMENCY IN
PENNSYLVANIA (1909).
78 Id., at 170.
19 Id., 126-27. See also Barnett, The Grounds of Pardon, 6 ORE.
L.REV. 205 (1927). Carl Sandburg has written eloquently of
Abraham Lincoln’s many decisions granting executive pardons dur-
42
A review of actual clemency decisions strongly suggests that
this principle has guided many commutations duiing the past
century.* 80 Systematic studies of the clemency process rein
force the impression that youih plays a major role in deter
minations to commute. One study of 232 persons receiving
death sentences between 1907 and 1960 in the State ot New
Jersey reveals that ” [t]he youngest age group [those aged 15
through 19J . . . whether compared to the next older age
group (20 to 24 years) or to all other age groups combined,
shows a significantly higher rate of commutation . . . In this,
ing [he Civil War, often on the ground of youth. C. SANDBURG,
ABRAHAM LINCOLN: THE WAR YEARS, ch. 51, The Pantoner
(1954).
80 Many governors commute without written or published memo
randa, or without staling reasons. Among those States where
reasoned decisions have been preserved, the following are represen
tative:
CALIFORNIA: REPRIEVES, COMMUNICATIONS AND PAR
DONS BY GOV. C. C. YOUNG, 1929-1930, 14-20 (1931), (Allen
Ellis: death sentence commuted to life. 1 hough shown by the State at
trial to be 18, he presented evidence to the Governor suggesting that
he was possibly 17 at the time of the crime, thereby under the mini
mum statutory age for capital punishment in California. “ As to the
crime itself there are no extenuating circumstances, unless the youth
of the defendant and the effect of association with two other bad boys
may be considered such.” ); id.. 33-35 (Joseph Troche: death-Sen
tence commuted to life. “ Extreme youth” one factor); MESSAGE
OF THE GOVERNOR CONCERNING PARDONS, CGMMU1 A-
TIONS AND REPRIEVES GRANTED BY GOV. JAMES ROLPH,
jr FOR PERIOD 1931-1933, 148-149 (1933). (E. Benjamin
Nuchols. sentence for second degree murder commuted to time
served. “ At the time he committed his offense, he was just a stiag-
gling kid [16] from Tennessee, without any folks and wandered into
California a stranger, and tried a holdup to gain funds, became
excited and shot his victim, who died from the wounds. )
COLORADO: REPORT OF T HE STATE BOARD OF PARDONS,
1893-1894, 23 (Frank Valentine: life sentence for murder pardoned
“ because: First —The murder was planned by others, not the peti-
43
tioner. Second —His youth at the time being a mere lad, and the tool
of the one who committed the crime.” ); REPORT OF THE STATE
BOARD OF PARDONS, 1895-1896, 21 (Henry Lee: sentence for
rape pardoned. “ Pardon recommended for the following reasons:
First —Because ol the many mitigating circumstances in the case, the
boy being eighteen years of age and the woman twenty-two at the
time of the alleged commission of the offense, and the fact that he
was olten induced by the woman and an older sister to spend his
earnings for drinks for them.” ): REPORT OF THE STATE BOARD
OF PARDONS, 1905-1906, 67 (Joseph Lee Carlow: sentence for
murder pardoned. “ Prisoner was but a young boy when he was
drawn into a quarrel with a boy, and, being in a strange crowd, was
getting the worst of it . . . and in desperation he drew a small pocket
knile, as he believed in delense of his life, and stabbed his compan
ion, the stab resulting fatally later on.” )
CONNECTlCU'l: Benjamin Reid: death sentence reduced to life.
“ Some of the other factors were that Reid was a minor, of very low
mental capacity, of a sordid, deprived background." Note, Executive
Clemency in Capital Cases, 39 N.Y.U. L. REV. 136, 162 and n.120
(1964)(Governor commuted without written opinion )
MASSACHUSETTS: II. BEDAU, THE DEATH PENALTY IN
AMERICA: AN AN H 10LOG Y, 426-427 (Anchor ed. 1967) (“ [A]s
early as 1900, Hosea M. Knowlton, then attorney general of Massa
chusetts, recommended the commutation of the death sentence of a
seventeen-year-old whose crime was particularly vicious, on the
ground that Massachusetts public sentiment would not tolerate the
execution of so young a boy. . . . [In the 1940s], in another case in
volving a seventeen-year-old boy, another Massachusetts judge took
the initiative and accepted a plea of guilty to second degree [murder]
on the ground that no Massachusetts governor would ever allow so
youthful an offender to be electrocuted.” )
NE W YORK: M ESS AG E OF THE GOVERNOR TR ANSM1TTTNG
THE STATEMENTS OF THE PARDONS, COMMUTATIONS
AND REPRIEVES GRANTED DURING THE YEAR 1959, 9
(William 11 Green & Louis King: 60 years for murder commuted to
time served. 18 and 17 respectively at the lime of the murder of a cab
driver during a robbery. “ In accordance with (the recommendation
of the Parole Board] and in view of the youthful age of Green and
King at the time of the crime and their good conduct . . . I am com
muting . . . to time served.” ); MESSAGE OF THE GOVERNOR
44
New Jersey may novt be atypical. Its treatment of the youngest
age group . . . is essentially like that reported for Maryland
and Pennsylvania.” S1
TRANSMITTING STATEMENTS OF THE PARDONS, COM
MUTATIONS AND REPRIEVES GRANTED DURING THE
YEAR 1972, 6 (Jose Crespo: sentence of 15-to-life for second degree
murder commuted. “ The crime was committed . . . when Mr.
Crespo, then 17 years old and a member of a teenage gang, shot and
killed a member of a rival gang. Mr. Crespo has been incarcerated for
13'/: years; over the course of his imprisonment he has experienced a
substantial character transformation, demonstrated in part by his ac
ademic and vocational achievements. During the last five years, he
has obtained a high school equivalency diploma and a Regents diplo
ma, completed college courses in English, creative writing and his
tory, succeeded in becoming a fully competent dental technician, and
served as an academic teacher to his fellow inmates. He is president
of the Wallkil! Correctional Facility Jaycee chapter and was recently
ordained a minister in the Samaria Evangelical Church.” )
OHIO: ANNUAL REPORT OF THE OHIO HOARD OF CLEM
ENCY, 1923-1924, 27 (Hilbert V. Sodders: life sentence for first
degree murder; clemency recommended. “ About twenty years ago,
Sodders, with two companions, . . . attempted a stealing in a Dayton
saloon. In the melee which ensued, [a companion] shot the proprie
tor of the place from the effects of which he died in about two weeks.
The three, all young fellows just beyond their teens, were quickly ap
prehended and first degree convictions followed in due course.”
Sodders escaped, lived an exemplary life until discovered.) t
81 Bedau, Death Sentences in New Jersey 1907-1960, 19 RUTGERS
L. REV. 1, 25 (1964). Bedau also notes:
“ Prior to 1958-1959, there had been only one serious effort in
the New Jersey Legislature since 1900 to replace the death pen
alty with imprisonment; that one effort was largely prompted by
the execution of a teen-age boy. The youngest person sentenced
to death between 1907 and 1960, Richard Sparks (No. 4222),
was electrocuted on January 5, 1915, at the age of 16; he was
also the youngest person executed. Two weeks later Senate Bill
No. 64, calling for the abolition of capital punishment and the
substitution of life imprisonment, was introduced; it passed in
the Senate by a vote of 11 to 1, but a month later was defeated in
the Assembly by a vote of 29-20.”
Id., at 24. >>*
45
The cited Pennsylvania study followed 439 persons receiv
ing death sentences in Pennsylvania between 1914 and 1958.s-
Ol the 407 lor whom age was known, 17.4 percent received
commutations. Among youth aged 15 to 19, although the
numbers are small, 50 percent received commutations.84 An
other study of 660 persons who were received by the state
prison in North Carolina between 1909 and 195484 compared
changes during the 1909-1954 period in the “ major themes
recurring in governors’ statements in justifying commutation
of death sentence.” 85 This study concluded that over the
course of the hall-century, age played an increasingly signifi
cant role in commutation decisions:
“ As shown by Table 4, there has been a decline in pro
portion ol commutation statements which question the
evidence in the case as justifying the death penalty, which
uie the support of responsible officials and/or jurors, and
which note requests from citizens for extensions of mer
cy. On the other hand, an increasing proportion o f commuta
tion statements point to age or underprivileged status of the
offender. ” 80
82 Wolfgang, Kelly and Nolde, Comparison of the Executed and the
Commuted Among Admissions to Death Row 53 J CR1M L C &
P S. 301 (1962). ’ "• r
8J Id., at 305. Wolfgang et al. note that “ the youthful first offender,
even though having committed a heinous murder, is rarely sen
tenced to death.” Id., at 302.
84 Johnson, Selective Factors in Capital Punishment 36 SOCIAL
FORCES 165 (1957).
85 Id., at 167, Table 4. (This Table is annexed as Appendix D.)
86 hh, at 168 (emphasis supplied). See also Bedau, Capital Punish
ment in Oregon, 1903-6-1, 45 ORE. L. REV. 1, 16 (1965) (“ Gener
ally, the youth of the murderer increases the likelihood of commuta
tion. In other states, evidence shows that anyone under twenty has
had an even chance of commutation, simply because of his youth.
Table VIII suggests this holds true in Oregon as well ” )
46
Our historical review supports the following summary:
Concurrently with the gradual development in the United
States over the past century of a broad societal consensus that
juvenile offenders belong in separate juvenile courts and sep
arate correctional facilities operated by the State in the role ol
parens patriae pursuant to rehabilitative ideals has come a
marked decline in the number of juveniles subjected to the
penalty of death Among young persons under 18, capital
punishment has been virtually eliminated in the United States
since the 1940s; and even for 18-year-olds, it has been infre
quently imposed. Special concern for juveniles has been a ma
jor theme of appellate sentence reductions and of executive
clemency decisions as well.
C. Contemporary Legislation
^ Following this Court’s lead in Coker v. Georgia, supra, 433
U.S. at 592, and Gregg v. Georgia, supra, 428 U.S. at 179, we
next look to “ legislative attitudes” for further indications of
evolving standards on the question of the death penalty for
juveniles. Beginning with the current capital punishment laws,
we note that at least six of the 34 States with presumptively
valid statutes have enacted flat prohibitions against the execu
tion of young people.87 Moreover, among the 27 States which
specifically enumerate mitigating circumstances.88 at least 248'
8?CAL. PENAL CODE § 190.5 (West Supp. 1980) (under 183;
COLO. REV. STAT. § 16-11-103(5)(a)(1978)(under 18); CONN.
GEN. STAT. ANN § 53a-46a(f)(1) (West Supp. 1980)(under 18);
ILL. REV. STAT. ch. 38, § 9-1 (b)(Smith Hurd Supp. 1978)(under
18); NEV. REV. STAT. § 176.025(1973 § Supp. 1977) (under 16);
TEXAS PENAL CODE ANN., tit. 2, § 8.07(d) (Vernon Supp. 1980-
1981)(under 17).
»8 A number of States, including Delaware, Georgia, Idaho, Illi
nois, Oklahoma, South Dakota and Texas do not specify particular
mitigating circumstances by statute, but appear to permit considera
tion of any relevant mitigating evidence.
1981 ALA. ACTS, § 13(g); AR1Z. REV. STAT. § 13-
703G.5(Supp. 1980); ARK. STAT. ANN. § 41-1304(4)(Supp.
1979); CAL. PENAL CODE § 190.3(0(West Supp. 1980); COLO.
47
(or apparently all but Indiana,90 New York91 and Vermont),92 93
have designated an offender’s youth as a statutory mitigating
factor.
Beyond the capital statutes themselves, a review of legisla
tion establishing juvenile court jurisdiction adds to our assess
ment of society’s evolving attitudes toward youthful offen
ders. Among the 50 States, at least 369J currently designate 18
years as the appropriate maximum age for juvenile court
REV. STAT. ANN. § 16-11-103 (5.1)(f)(1978); CONN. GEN.
STAT. ANN. § 53a-46a(f) (West Supp. 1980); FLA. STAT. ANN.
§ 921.141 (6)(g) (West Supp. 1981); KY. REV STAT. § 532.025
(b)(8) (Supp. 1980); LA. CODE CR1M. PRO. ANN. art.
905.5(f) (Supp. 1981); MD. CR1M. LAW CODE ANN.
§ 4 1 3 (g) (5) (Supp. 1980); MISS. CODE ANN. § 99-19-
101(6)(g)(Supp. 1979); MO. REV. STAT. § 565.012(3)(7)(Supp.
1981); MONT. REV. CODES ANN. § 46-18-304(7) (1979); NEB.
REV. STAT. § 29-2523(2) (d )(1979); NEV. REV. STAT.
§ 200.035(6) (1979); N.H. REV. STAT. ANN. § 630:5
II(b)(5)(Supp. 1979); N.M. STAT. ANN. § 31-20A-6 KSupp.
1980); N.C. GEN. STAT. § 15A-2000(f)(7)(Supp. 1979); 18 PA.
CONS. STAT. ANN. § 1311 (e)(4) (Purdon 1980); S.C. CODE § 16-
3-20(c) (b) (7) (Supp. 1980); TENN. CODE ANN. § 39-
2404(j)(7)(Supp. 1980): UTAH CODE ANN. § 76 (a)(b)(7)(Supp.
1979); VA. CODE § 19.2-264(B)(V)(Supp. 1980); WYO. STAT.
^ANN. § 6-4 - 102(j)(vii)(Supp. 1980).
' 901ND. CODE ANN. § 35-50-2-9(c) (Burns Supp 1979).
91 N.Y. PENAL LAW § 125.27 (McKinney Supp. 1980) leaves
open the possibility of a mandatory death sentence for a narrow
category of homicide. In People v. Davis, 43 N.Y.2d 17, 400 N.Y.S.2d
735 (1977), the New York Court of Appeals invalidated the statute
with this possible exception. No prosecutions have occurred since
that time.
92 VT. STAT. ANN. tit. 13, § 2303(b) (1980). The Vermont statute
predates this Court’s opinion in Furman v. Georgia, 408 U.S. 238
(1972) and does not provide for any bifurcated proceedings. There
have been no prosecutions under the statute since 1972.
93 ALA. CODE § 12-15-1 (3) (Supp. 1979); ALASKA STAT. § 47-
10-010(a)(Supp. 1979); ARIZ. REV. STAT. § 8-201.5(Supp 1980);
ARK. STAT. ANN. § 45-406.1 (Supp. 1979); CAL. WELL. & INST.
48
jurisdiction. One Slate sets the age at 19," while 8 States95
specify age 17, and 4 States96 specify age 16. The majority of
CODE § 300 (West Supp. 1981); COLO. REV. ST AT. ANN. § 19-1-
103(3)0978); DEL. CODE ANN. til. 10 § 901 (3)(Supp. 1980);
FLA. ST AT. ANN. § 39.01(7) (West Supp. 1981); HAWAII REV.
STAT. § 571-1 1(1) (Supp. 1 980); IDAHO CODE § 16-
1802(c)fSupp. 1980); 1ND. CODE ANN. § 31-6-1-2(1)(Supp
1979) ; IOWA CODE ANN. § .232.2(3)(Supp. 1980); KAN. STAT.
§ 38-802(Supp. f980); KY. REV. STAT. ANN. § 208.010(2)(Supp.
1980) ; ME. REV. STAT. ANN. tit. 15, § 3003(14)(Supp. 1980);
MD. CTS. & JUD. PROC. CODE ANN. § 3-801 (d)(1980); MINN.
STAT. ANN. § 260.015(2) (Supp. 1981); MISS. CODE ANN. § 43-
215(c)(Supp. 1979); MONT. CODE ANN. § 41-5-103(10)0979);
NEB. REV STAT. § 43-201 (2)(Supp. 1979); NEV. REV. STAT.
§ 62.020(2)(1979); N. H. REV. STAT. ANN. § 169:2 lIKSupp.
1979) ; N.J. STAT. ANN. § 2A:4-14(Supp. 1980); N M. STAT.
ANN. § 32-l-3(A)(Supp. 1980); N.D. CENT. CODE § 27-20-
0 2 ( 1 ) ( S u p p . 1 9 7 9 ) ; OHIO REV. C O D E ANN.
§ 2151.01.1 (B)(1)(Supp. 1980); OKLA. STAT. ANN. tit. 10,
§ 1101 (a)(Supp. 1980); PA. STAT. ANN. tit. 42 § 6302(l)(Purdon
1980) ; R.I. GEN. LAWS ANN. § 14-l-3(c)(Supp. 1980); S.D.
COMP. LAWS § 26 8-1(3)(Supp. 1980); TENN. CODE ANN. § 37-
202(1)(Supp. 1980); UTAH CODE ANN. § 78-3a-2(3)(Supp.
1979) ; VA CODE ANN. § 16.1-228(Supp. 1980); WASH. REV.
CODE ANN. § 13.40.020(11)(Supp. 1981), W. VA. CODE ANN.
§ 49-5-1 (a)(1980); W1S. STAT. ANN. § 48.02(2) (West Supp.
1980) .
94 WYO. STAT. ANN. § 14-6-201 (a) (Supp. 1980). *
95GA. CODE ANN. § 24-2408(Supp. 1980); ILL. ANN. STAT.
ch. 37 § 702-2 (Supp. 1980); LA. REV. STAT. ANN.
§ 13.1569(3)(Supp. 1981); MASS. GEN. LAWS ANN. ch. 119, § 52
(Supp. 1981); MICH. COMP. LAWS ANN. § 712A.2(a)(Supp
1981) ; MO. REV. STAT. § 211.21 (Supp. 1981) S.C. CODE § 14-21-
20(c)(Supp. 1980); TEX. FAM. CODE ANN. § 51-02(1)(Supp.
1980).
96CONN. GEN. STAT. ANN. § 46b-120 (Supp. 1980); N.Y.
FAM. CT. ACT § 712(a)(McKinney Supp. 1979); N.C. GEN.
STAT. § 7A-517U) et seq. (Supp. 1979); VT. STAT. ANN. tit. 33,
§ 632(a)(l)(Supp. 1980).
49
model standards concur with the judgment of those 37 States
which set 18 as the boundary for juvenile court jurisdiction.97
Concededly, a varied pattern of legislation which permits
the waiver of juvenile jurisdiction or, in some States, concur
rent jurisdiction between adult and juvenile courts for serious
juvenile offenders,98 cautions against the assertion that offen
ders under 18 are or should be fully shielded from adult crimi
nal processes under all circumstances. Yet the broad consen
sus reached among 37 States that the age of 18 marks an ap
propriate general limit to juvenile court jurisdiction is impor
tant evidence supporting our claim that — whatever courts
may be chosen to try a juvenile under 18 charged with murder
97 UNITED STATES DEPARTMENT OF HEALTH, EDUCA
TION & WELFARE, WELFARE ADMINISTRATION, CHIL
DREN’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, § 2.1(i)(1968) (18 years); UNITED
STATES DEPARTMENT OF JUSTICE, NATIONAL INSTITUTE
FOR JUVENILE JUSTICE AND DELINQUENCY PREVEN
TION, WORKING PAPERS OF THE NATIONAL TASK FORCE
TO DEVELOP STANDARDS AND GOALS FOR JUVENILE JUS-
* TICE AND DELINQUENCY PREVENTION. JURISDICTION -
DELINQUENCY 10-11 (1977)(18 years); but see INSTITUTE OF
JUDICIAL ADMINISTRATION/AM ERIC AN BAR ASSOCIA
TION, JUVENILE JUSTICE STANDARDS PROJECT, TENTA
TIVE STANDARDS DRAFT, JUVENILE CRIME (1976)07
years).
98 In 46 States, certain juveniles charged with murder or other
serious felonies can be tried in adult criminal courts through waiver
of jurisdiction or concurrent jurisdiction procedures. See generally, S.
DAVIS, RIGHTS OF JUVENILES: THE JUVENILE JUSTICE
SYSTEM, ch. 2, Jurisdiction, and Appendix B (2d ed. 1980). See also,
Frey, The Criminal Responsibility of the Juvenile Murderer, 113
WASH. U. L. Q. (1970).
50
— the Eighth Amendment forbids the imposition upon such
an offender of the punishment of death, society’s most cruel
and final sanction, a punishment qualitatively different,
Woodson v. North Carolina, 428 U.S. 280, 305 (1976) in its
“ severity and irrevocability,” Gregg v. Georgia, supra, 428
U.S. at 187. Age 18 stands as the prevailing line of division
overwhelmingly marked out by the States between legal
solicitude for the frailly and immaturity of youth and the
demand that youth at some point accept full adult respon
sibility.
Eighteen years, of course, is also the line selected by Con
gress and the Slates in their enactment and ratification of the
Twenty-Sixth Amendment to the Constitution,w governing
voting age. Following extensive hearings99 100 and presentations
by a wide range of citizens and groups, both federal and state
legislatures agreed to give constitutional significance to age 18
as the appropriate time when young men and women should
first be permitted to participate in the most basic civic respon
sibility of adults in our democracy.
It is also instructive to consult the American Law Institute’s
Model Penal Code, which has provided useful guidance to the
Court on other capital sentencing issues.101 Since 1962, the
Model Penal Code has embodied a recommendation that the
death penalty should not be imposed on youthful offenders
99 The 26th Amendment reads in pertinent part:
“ 1. The right of citizens of the United States, who are eighteen
years of age or older, to vote shall not be denied or abridged by
the United Stales or by any State on account of age.”
See also Oregon v. Mitchell, 400 U.S. 1 12 (1970).
100 See Lowering the Voting Age to 18: Hearings Before the Subcomm.
on Constitutional Amendments of the Senate Comm, on the Judiciary,
91st Cong., 2d Sess (1970); S. REP. NO. 92-26, 92d Cong., 1st Sess.
(1971); H. REP. NO. 92-37, 92d Cong., 1st Sess. (1971).
101 See, e.g., Gregg v. Georgia, supra, 428 U.S. at 189, 191, 193.
51
below age 18.102 Revisers of the Model Code have recently
reaffirmed that considered judgment, despite suggestions
from several quarters that the minimum age ought to be
reduced to 16 or even 14.103
The domestic legislative indicia pointing toward age 18 as
the appropriate boundary between juvenile and adult respon
sibility have counterparts in the international community. In a
comprehensive 1965 study of international capital punish-
102 AMERICAN LAW INSTITUTE, MODEL PENAL CODE,
§ 210.6(1) (d) (Proposed Official Draft, 1962) reads:
“ (1) Death Sentence Excluded. When a defendant is found guilty
ol murder, the Court shall impose sentence fora felony of a first
degree if it is satisfied that:
(d) the defendant was under 18 years of age at the time of the
commission of the crime.”
103 AMERICAN LAW INSTITUTE, MODEL PENAL CODE
§210.6, Comment, 133 (Official Draft and Revised Comments
1980):
(T)here is at least one class of murder for which the death sen
tence should never be imposed. This situation is murder by
juveniles. The Institute believes that civilized societies will not
tolerate the spectacle of execution of children, and this opinion
is confirmed by the American experience in punishing youthful
offenders. Subsection (1) (d) therefore excludes the possibility
of capital punishment where the actor was under 18 years of age
at the lime of the homicide. Of course, any bright line of this
sort is somewhat arbitrary, and many juveniles of lesser years
have the physical capabilities and mental ingenuity to be ex
tremely lethal. The Institute debated a motion to lower the age
of exclusion to 14 but rejected that proposal on the ground that,
however dangerous some children may be, the death penalty
should be reserved for mature adults. It should also be noted
that 18 is the limit of juvenile court jurisdiction contemplated in
Section 4.10 of the Code. A more difficult issue is the choice be
tween an absolute bar of capital punishment, as provided in Sub
section (1) (d), and mere consideration of youth as a mitigating
circumstance, as indicated in Subsection (4)(h). The Institute
defeated a motion to delete the former provision altogether and
relegate the offender’s age to evaluation as one of several
mitigating factors. This decision reflects the view that no
juvenile should be executed.”
52
ment policies, 73 of 91 countries reporting a minimum age for
execution required the offender to be at least 18 years old.
Subsequent reports of the Secretary General of the United
Nations confirm that “ It]he great majority of Member States
report never condemning to death persons under 18 years of
age.” lu> The statutes of virtually all of the Western and
Eastern European countries which permit capital punishment
in peace time'00 nevertheless prohibit execution of persons
under age 18.107
104 Patrick, The Status of Capital Punishment: A Work! Perspective,
56 J. GRIM. L., C. & P S. 397, 410 and Table 1, 398-403 (1965). The
countries Patrick lists as permitting executions of juveniles under 18
include: Afghanistan. Central African Republic, Ceylon, Cyprus,
Finland, Ghana, Haiti, India, Ireland, Republic of Korea, Laos,
Liberia, Malaya, Nepal, Territory of New Guinea, Nigeria, Pakistan,
and the Union of Soviet Socialist Republics. Patrick notes that
several of the countries which have set minimum ages below 18 fol
low' the English common law; he adds: “ [lit again must be recog
nized that what is possible by law may be highly improbable by cus
tom or practice.” Id.. at 410.
105 UNITED NATIONS, ECONOMIC AND SOCIAL COUNCIL,
REPORT OF THE SECRETARY GENERAL, CAPITAL PUNISH
MENT 10 (1973); see also UNITED NATIONS, ECONOMIC AND
SOCIAL COUNCIL, REPORT OF THE SECRETARY GENERAL,
CAPITAL PUNISHMENT (E/5616)(1975); UNITED NATIONS,
ECONOMIC AND SOCIAL COUNCIL, REPORT OF THE SEC
RETARY GENERAL, HUMAN RIGHTS QUESTIONS, CAPITAL
PUNISHMENT (E/19S0/9)(1980) [hereinafter cited as U. N. SEC.
GEN. 1980 REPORT). In a table appended to his 1980 report, the
Secretary General indicates that among the 62 nations responding
during the years 1974-1978, 343 persons age 18 or older were re
ported executed, while no person under age 18 was reported
executed, hi., Table 1, 17-18.
106The following European countries altogether prohibit capital
punishment in peacetime, either by constitutional provision or by
statute: Austria, Denmark, Federal Republic of Germany, Finland,
Great Britain, Iceland, Italy, Luxembourg, Malta, The Netherlands,
Norway, Portugal, Spain, Sweden, and Switzerland. U.N. SEC. GEN.
1980 REPORT, Annex, at 6.
•°7 Belgium: LES CODES LARCIER, CODE PENAL, ch. VIII,
77- Bulgaria- DAS BULGARISCHE STRAFGESETZBUCH VOM
53
The consensus of the international community against the
execution of juveniles under age 18 is reflected as well in the
provisions of two human rights covenants. The International
Covenant on Civil and Political Rights'08 contains an express
provision that a “ [sjentence of death shall not be imposed for
crimes committed by persons below eighteen years of age and
shall not be carried out on pregnant women.” ‘“ The Amer
ican Convention on Human Rights"0 similarly provides that
“ [clapital punishment shall not be imposed upon persons
who, at the time the crime was committed, were under 18
years ol age . . .
16 MAERZ 1968 (NAKAZATELEN KODEKS, Art
38(2)(1973)(20 years); Czechoslovakia: PENAL CODE OF 1961,
§ 29(3), trans. in Solnar, The Conditions of Criminal Liability Under
the New Czechoslovak Penal Code of 1961, 20 BULL. CZECHOSLO
VAK LAW 1, 67-68 (1962); France: C. PEN., art. 66 (under some
circumstances, 16 years); German Democratic Republic: STGB.
DDR §§ 60(2), 65; Hungary: CR1M. CODE OF HUNG. PEOPLES
REPUB § 39.(1), trans. in 1 HUNG. L. REV. 25, 34 (1980)(21
years); Poland: PEN. CODE OF THE POLISH PEOPLE’S REPUB.,
art. 31, (trans. by W. KENNEY & T. SADOWSK1 1973); Romania:
PEN CODE OF THE ROMANIAN SOCIALIST REPUB. art. 54
(trans. by S. KLECKNER 1976)(20 years), Turkey: TURKISH
CRIM. CODE, ART. 55.1 (trans. by N. GURELLI 1980); USSR:
SOVIET CODES OF LAW, art. 23 (W. SIMONS ed. 1980). But cf
Greece: GREEK PEN. CODE, arts. 121, 122, 127 (trans. by N.
LOLIS 1973) (17 years).
108 International Covenant on Civil and Political Rights, entered
into force March 23, 1976, G.A. Res. 2200A, 21 U.N. GAOR, supp.
(No. 16) 49, 52, U.N. Doc. A/6316 (1967).
109 Id., art. 6(5).
1,0 American Convention on Human Rights, entered into force July
18, 1978, O.A.S. Doc. OEA/SER. K/XV1/1.1 Doc. 65 (1970),
reprinted in [1969] YEARBOOK ON HUMAN RIGHTS 390 (United
Nations).
111 Id., art. 4.5
54
Both covenants have been ratified by numerous countries,
the International Covenant by at least 60,112 the American
Convention, by 14.113 On June 1, 1977, President Jimmy
Carter signed the American Convention,114 and on Octobei 5,
1977, he signed the International Covenant."5 Both were
transmitted to the Senate for advice and consent on February
23, 1978, together with certain proposed reservations and un
derstandings."0 The Senate has not yet formally ratified either
covenant.117
in International Human Rights Treaties: Hearings Before the Senate
Comm, on Foreign Relations, 96th Cong., 1st Sess. 520 (1979)
[hereinafter "'Senate Treaties Hearings”]
Id. at 506.
»■' Id.
115 Id. at 520.
"<> /</. at 506, 520. See generally Weissbrodt, United States Ratifica
tion of the Human Rights Covenants, 63 MINN. L. REV. 35 (1978).
Among the reservations to the International Covenant was one adja
cent to the clause on execution of juveniles stating: “ The United
States reserves the right to impose capital punishment on any person
duly convicted under existing or future laws permitting the imposi
tion of capitai punishment.” Senate Treaties Hearings, at 522. A perti
nent reservation to the American Convention reads. United States
adherence to Article 4 is subject to the Constitution and other law of
the United States.” Id. at 508. In response to sharp criticism ot such
reservations by the Lawyers’ Committee for International Human
Rights, see id. at 48-50, the Department of State remarked: “ The
purpose of that reservation, like the other reservations, is to avoid
the assumption of an international obligation to meet certain stand
ards which U.S. domestic law does not currently meet. Its purpose
was certainly not the preservation of any right to execute children or
pregnant women, something never done in the United States.” Id. at
55.
117 See generally Report of the Committee on International Human
Rights. United Nations Human Rights Covenants, 36 THE RECORD
of the Association of the Bar of the City of New York 217 (Apr.
1981).
55
In sum, the relevant evidence of legislative attitudes — at
the state, federal and international levels — points convin
cingly to 18 as the minimum age below which execution ot a
youthful offender would be offensive to contemporary stand
ards of human decency.
D. The Response of Capital Juries
The third source to which we look to ascertain contempo
rary societal standards regarding capital punishment for
juveniles is “ the response of juries reflected in their sentenc
ing decisions.” Coker v. Georgia, supra, 433 U.S. at 592. Un
fortunately, little helpful information about the ages of per
sons sentenced to death appears to have been collected sys
tematically since this Court’s opinion in Furman v. Georgia.
The annual reports on capital punishment prepared by the De
partment of Justice contain some information on age; but
until 1974, sentences of all offenders “ under 21” were
grouped together."8 Since 1974, the lowest age grouping re
ported for all offenders has been “ under 20 years.” "4 The
most recent report available shows that among 567 offenders
under sentence of death as of December 31, 1979, eleven (1.9
percent) were in the “ under 20 years” category.120 By com
parison, 145 (25.5 percent) were in the next oldest age catego
ry, from 20 to 24 years; and 151 (26.6 percent) were in the age
category from 25 to 29 years.
To update and clarify these figures, we have contacted
prison authorities and other knowledgeable sources in every
us see. e.g., UNITED STATES DEPT. OF JUSTICE, LAW EN
FORCEMENT ASSISTANCE ADMINISTRATION, NATIONAL
PRISONER STATISTICS BULLETIN, NO. SD-NPS-CP-2, CAP
ITAL PUNISHMENT 1973 26, Table 7 (March 1975).
e.g., UNITED STATES DEPT. OF JUSTICE, BUREAU
OF JUSTICE STANDARDS, NATIONAL PRISONER
STATISTICS, NCJ-70945, CAPITAL PUNISHMENT 1979 72 Ta
ble 29 (Dec. 1980).
120 Id.
56
State with offenders presently under sentence ot death in
order to obtain information on all oflenders aged 19 or undet
at the time of the commission of their crimes. The results, as
of May 1, 1981, are presented in Table Three below.121
TABLE 3
Juveniles Under Sentence of Death By Age
At Time of Commission of Crime,
As of May 1, 1981
Age - B W H NA Totals
15 0 1 0 0 1
16 3 2 0 0 5
17 7 4 0 0 11
18 9 3 1 0 13
19 14 15 3 1 33
W - White
B = Black.
H = Hispanic
NA = Native American
The total number of offenders currently under sentence of
death for crimes committed while they were less than 18 years
old thus appears to be 17 (2.1 percent ) of the total condemned
population of 794.122 The total number of juveniles sentenced
to death for crimes committed while 16 or younger — that is,
as young as petitioner Monty Eddings — is 6, three-quarters
of one percent of the current condemned population.123
121 A full listing of all condemned persons below age 20 known to
us as of May 1, 1981, grouped by age, name, race, and state, appears
as Appendix E infra.
122 NAACP LEGAL DEFENSE AND EDUCATIONAL FUND,
INC., DEATH ROW U.S.A. 1 (April 20, 1981).
123 The State of Oklahoma, where petitioner Eddings awaits execu
tion, has apparently never executed anyone under the age of 18. One
18-year-old was executed in Oklahoma in 1933, and one 19-year-old
57
One additional factor of significance clear from the data is
that, while blacks currently comprise 40.5 percent of the con
demned population,124 they represent 10 of the 17 condemned
juveniles under 18 (59 percent), continuing the marked over
representation of young blacks on death rows (even discount
ing the general overrepresentation of blacks in comparison to
their numbers in the population), a pattern which we noted in
figures from previous decades.125
The numbers also suggest that juries and sentencing judges
are reluctant to impose the death penalty on adolescents. In
deed, a notable increase appears when one employs the most
recent Department of Justice figures126 to compare the total
number of condemned inmates under age 20 as of 1979 (1 1)
with the numbers for older inmates (ages 20-24, 145, ages 25-
29, 151).127 Apparently, only when offenders reach their early
twenties does society’s impulse to shield the young lrom the
full harshness of its most extreme criminal penalty truly
abate,128
in 1937. The remainder of the 83 persons executed in that State since
1915 were at least 20 years old. W. BOWERS, EXECUTIONS IN
AMERICA, 343-345 (1977).
124 NAACP LEGAL DEFENSE AND EDUCATIONAL FUND,
INC., DEATH ROW, U.S.A. 1 (April 20, 1981).
125 See discussion at 38-39 supra.
126 we were unable, within the time permitted for completion of
this brief, to obtain individual age information on all inmates below
30 who were under sentence of death as of May 1, 1981. We have no
reason, however, to doubt the reliability of the most recent National
Prisoner Statistics figures for 1979, or to believe, that the pioportions
of condemned persons in the various age brackets recorded has
altered significantly in the eighteen months since that report was
published.
'22 UNITED STATES DEPT. OF JUSTICE, BUREAU OF JUS
TICE STANDARDS, NATIONAL PRISONER STATISTICS, NCJ-
70945, CAPITAL PUNISHMENT 1979, 72, Table 29 (Dec. 1980).
128 It is not likely that scarcity of death sentences imposed on youth
under age 18 simply “ reflectls) the humane feeling that this most ir
58
E. Conclusion
All the indicia of contemporary standards of decency — his
tory and precedent, legislative enactments, and jury behavior
— demonstrate a rejection of the death penalty as an accept
able societal response to juvenile crime, even to juvenile
murder. Our society has learned too much during the past
century about the special nature of childhood and the turbu
lent developmental pressures which peak during adolescence,
as well as about the encouraging rehabilitative potential
possessed by many disturbed young people, to impose upon
them its most terrible and final punishment. The entire mod
ern history of juvenile justice argues against such a draconian
response, even for outrageous and unacceptable juvenile be
havior.
Yet these objective factors do not alone decide the matter,
for “ the Constitution contemplates that in the end [the] judg
ment [of this Court] will be brought to bear on the question of
the acceptability of the death penalty under the Eighth
Amendment,” Coker v. Georgia, supra, 433 U.S. at 597. At is
sue is whether the execution of juveniles “ comports with the
revocable of sanctions should be reserved for a small number of ex
treme cases.” Gregg v. Georgia, supra, 428 U.S. at 182. Since 1977,
when Oklahoma’s present statute was enacted, a number of juveniles
have committed homicides far more aggravated than that of peti
tioner Eddings, and with fewer mitigating circumstances. See, e.g.,
State v. Jimmy Derrell Scott, No. CRF-77-1397 (Dist. Ct. Okla.
Cty.) (Defendant was 17 when he kidnapped two separate victims on
same night, robbed both, killed one after ignoring his pleas for help
and abandoning victim on roadside; received life sentence in
exchange for a plea on Nov. 2, 1977; State v. Allison Beard, No. CRF-
79-4516 (Dist. Ct. Okla. Cty.) (Defendant was 17 when he orally
sodomized and murdered an elderly woman who surprised him dur
ing burglary of her residence; received life sentence in exchange for a
plea); State v. Quintus Lamar Kezzec, No. CRF-81-1087 (Dist. Ct.
Okla. Cty.) (Defendant was 16 when he robbed and killed a 72-year-
old jewelry dealer with .22 pistol; received life sentence), in none of
these more extreme cases was a death sentence imposed.
59
basic concept of human dignity at the core ol the Amend
ment.” Gregg v. Georgia, supra, 428 U.S. at 182.
Surely it does not. The Eighth Amendment demands that
the extreme sanction of capital punishment be restrained by
consideration of “ compassionate or mitigating factors stem
ming from the diverse frailties of humankind.” Woodson v.
North Carolina, supra, 428 U.S. at 304. At a time when the
unique frailties of youth are universally recognized as relevant
to the proper disposition of children who commit criminal acts
of all degrees of seriousness, it is simply inconceivable that the
concept of human dignity embodied in the Eighth Amend
ment could tolerate the execution of a child of tender years.
Some minimum age of susceptibility to the punishment of
death must be recognized by a constitutional guarantee that
decency will fix the outer boundaries of the criminal sanction.
The problem, of course, here as elsewhere in the evolution
of constitutional law, resides in drawing the line. Shall it be 12,
15, 18, 20? The inevitability of the difficult task of linedrawing
is endemic to a Constitution that has not chosen to leave it to
the vagaries of isolated juries and trial judges to determine
exclusively and irremediably the state of our national con
science. And if a line must be drawn — as assuredly it must
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 de
scribed above fixes age 18 as the line ol full adult respon
sibility with a clarity that is not merely convenient but com
pelling when the gravest penal sanction of a society is sought
to be exacted of its youth.
II
THE EXECUTION OF PETITIONER EDDINGS, IN
VIEW OF THE OVERWHELMING MITIGATING CIR
CUMSTANCES IN HIS CASE, WOULD CONSTITUTE
EXCESSIVE AND DISPROPORTIONATE PUNISH
MENT FORBIDDEN BY THE EIGHTH AND FOUR
TEENTH AMENDMENTS
In the present case, however, the Court needs not reach the
question whether the execution of children younger than 18 is
6 0
invariably cruel and unusual punishment. Petitioner Eddings’
sentence of death can and should be vacated under the Eighth
Amendment as excessive and disproportionate in light ol the
“ relevant facets of the character and record ol [this] in
dividual offender [and] the circumstances of [his] particular
offense." Woodson v. North Carolina, supra, 428 U.S. at 304.
The Court has long recognized as “ a precept of justice that
punishment for crime should be graduated and proportioned
to offense,” Weems v. United States, 217 U.S. 349, 367
(1910); and the Court has on several occasions entertained
claims that a particular death sentence was excessive or dis
proportionate, see, e.g., Woodson v. North Carolina, sttpia, 428
U.S. at 303 n.40; Lockett v. Ohio, supra, 438 U.S. at 609 n. 16;
Bell v. Ohio, supra, 438 U.S. at 642 n.; Bullington v. Missouri,
___ U.S. ____ , 49 U.S.L.W. 4481, 4485 n.17 (U.S., May 5,
1981)(No. 79-6740), although it has never heretofore been
required to decide those claims.
Here, petitioner Eddings has presented uncontroverted evi
dence of at least three factors which, considered together,
overwhelmingly mitigate his offense. First, Eddings was
barely sixteen at the time of the offense12’ and, according to
the uncontradicted testimony of the Chief Forensic Psycholo
gist at Oklahoma’s Eastern State Hospital, Eddings’ mental
age “ was far younger," “ approximately . . . fourteen years
three months [to] fourteen years six months” (A. 134). Dr.
Richard Rettig, an Associate Professor of Psychology at Qral
Roberts University, concurred in this assessment, noting that
“ in [his] best judgment . . . [Eddings’] responses appeared to
me to be several years below his chronological age” (A. 149).
“ He’s been unable to develop any mature basis to make judg
ments [and] often acts out at a level of a five or ten or twelve
year old child” (id.). Thus no* only was Eddings’ crime the
act of a very young juvenile chronologically, but his mental
129The trial judge’s reports completed following the trial indicates
that Monty Eddings’ birthdate was December 5, 1960 (A. 6). He was
sixteen years and lout months old on April 4, 1977.
6 1
and emotional age made him even younger in behavior and
outlook. This Court, as we have previously observed, has
repeatedly identified the youth of an offender as one of the
most significant mitigating factors in a capital case. |J°
Second, this record is replete with evidence that Eddings
act stemmed in large part from the emotional deprivations of
his chaotic childhood and from the desperate bitterness and
anger with which Eddings responded to parental neglect. The
President’s Commission on Law Enforcement and the Ad
ministration of Justice could well have been describing Monty
Eddings when it set forth the classic formula for juvenile
delinquency:
“ He is 15 or 16 year's old . . . one of numerous children
— perhaps representing several different fathers — who
live with their mother in a home that the sociologists call
female-centered. It may be broken, it may never have
had a resident father. . . . He may never have known a
grownup man well enough to identify with or imagine
emulating him. From the adults and older children in
charge of him he has had leniency, sternness, affection,
perhaps indifference, in erratic and unpredictable succes
sion. All his life he has had considerable independence,
and by now his mother has little control over his comings
and goings, little way of knowing what he is up to until a
policeman brings him or a summons from court comes in
the mail.” 129 * 131
Admixed into this formula during Eddings’ childhood was
an additional ingredient - physical violence inflicted both by
his father (A. 113) and by his stepfather, a motorcycle po
liceman (A. 170). Eddings’ own violent deed, however legally
and morally unacceptable, was yet sadly predictable:
“ Clinical experience has indicated that where a child has
been exposed early in his life to episodes of physical vio-
uuSee pages 19-20 supra.
131 PRESIDENT’S COMMISSION. CHALLENGE OF CRIME, at
60.
62
lence, whether he himself is the victim or . . the wit
ness he will often later demonstrate similar outbursts ot
uncontrollable rage and violence of his own Aggression
becomes an easy outlet through which the child s frustra
tion and tensions how, not just because of a simple mat
ter of learning that can be just as simply unlearned . . .
but because these traumatic experiences have ovei-
whelmed him. His own emotional development is too
immature to withstand the crippling inner effects ot outer
violence. Something happens to the child’s character, to
his sense of reality, to the development of his controls
against impulses that may not later be changed easily but
which may lead to reactions which in turn provoke more
reactions — one or more of which may be criminal.
The Model Penal Code133 and the capital statutes of nu
merous states13'’ have long recognized the mitigating signifi
cance of actions committed under extreme mental or emo
tional disturbance. This Court itself has taken account of ex
treme emotional trauma” in evaluating the heinousness of a
homicidal act, Godfrey v. Georgia, supra. 446 U S .421), 4JJ
(1980)' see also Bell v. Ohio, supra, 438 U.S. at 641 ( emo
tional instability” ); (Harry) Roberts v. Louisiana supra 431
U.S. at 637 (“ extreme emotional disturbance ). Similarly in
this case, substantial psychological and psychiatric evidence
persuasively suggests that Eddings’ fatal act was not the coo y
rational deed of a hardened criminal, but instead the tragically
uncalculated response of a troubled adolescent to deeply
rooted, explosive psychological pressures with which ne
proved too immature to cope.
MENNINGER, THE CRIME OF PUNISHMENT 214-15
(1966). See also the testimony of Dr. Anthony Gagliano (A.
m AMERICAN LAW INSTITUTE, MODEL PENAL CODE
§ 210.6(4) (b) (Proposed Official Draft 1962).
iJ4 See Liebinan & Shepard, Guiding Capital Sentencing Discretion
Beyond the ‘Boiler Plate’: Mental Disorder as a Mitigating Circumstance,
66 GEO. L.J. 757, 794-807 (1978), and statutes cited therein at n.
158.
63
Eddings’ violent outburst, however, was not part ol a pat
tern of serious violent behavior, and his lack of any significant
prior criminal conduct constitutes a third mitigating factor in
this case. The State attempted at the sentencing hearing to dis
count this factor by making much of Eddings’ vocal threats of
harm (A. 77, 103) directed with bravado against highway
patrolmen long after Eddings was securely in custody - one,
after he had stood for 1-1/2 or 2 hours facing a wall (by his
own choice, according to police testimony) during a respite in
interrogation (A. 83). Yet at a time when he was capable ol
acting on such threats - following the shooting of Officer
Crabtree - Eddings instead directed that his three weapons
be thrown from his vehicle (A. 54-55); and, as officers ap
proached to arrest him, he “ pulled over to the side of the
road, put everything he had on the ground, and laid down on
the ground” (A. 91).
This non-belligerent behavior was consistent with Eddings
minor juvenile record for mischief and property offenses m
Missouri. Apart from one adjudicated petition for assault, in
volving what his probation officer characterized as a “ street
fight” among several boys (A. 118), there is simply no indica
tion that Eddings had ever engaged in other crimes of vio
lence or in any serious felonies. It is in part in view of this
minor criminal involvement that an expert witness diagnosed
Eddings as “ absolutely treatable” (A. 149); none of the ex
perts who examined him found him incorrigible or beyond re
habilitation, and none characterized him as chronically violent
or dangerous.
Nor was the crime for which he stands condemned especial
ly aggravated. The victim was killed by a single shotgun
wound to the chest. Officer Crabtree was apparently unaware
of his jeopardy until the incident occurred, and, according to
the medical examiner, died from his wound “ within a matter
of seconds to minutes” (A. 23). C f Godfrey v. Georgia, supra
446 U S at 425 (defendant shot two victims with a shotgun).
The entire episode was a matter of the moment, as unplanned
as it was unexpected. Grievously rash, it was the immature act
64
of a young juvenile plagued by serious emotional problems.
Monty Eddings is unquestioningly deserving of moral blame
as well as lengthy incarceration — but not death. This emo
tionally disturbed young boy, still bitter and hostile against his
neglectful parents, deserves something other than society’s
ultimate, irrevocable penal sanction. The Eighth Amendment
prohibition against excessive and disproportionate punish
ment — against needless cruelty — would be violated by his
execution.
Ill
THE COURT SHOULD VACATE PETITIONER
EDDINGS’ DEATH SENTENCE BECAUSE OF PLAIN
CONSTITUTIONAL ERROR IN THE RECORD
Study of the trial record during preparation of this briel has
disclosed a plain error of constitutional dimension not pre
sented in the petition for certiorari. We are compelled to call
this to the Court’s attention because it may obviate the need
for the Court to reach the broader constitutional questions
raised by the case. Cf. Maxwell v. Bishop, 398 U.S. 262
(1970) (per curiam). Although we urge the decision of those
questions, cf. Cohen v. California, 403 U.S. 15 (1971), we rec
ognize the considerations that may cause the Court to decline
“ to decide the constitutional issues involved in this case on a
broader basis than the record before [it] . . . imperatively re
quires,” Street v. New York, 394 U.S. 576, 581 (1969).
The sentencing proceedings below were conducted on May"
15 and May 17, 1978, some two months prior to this Court’s
decision in Lockett v. Ohio, 438 U.S. 586 (1978). The trial
judge, sitting as the sentencing authority, plainly violated the
constitutional rule subsequently announced in Lockett. This
Lockett error was not enumerated or argued on appeal to the
Oklahoma Court of Criminal Appeals, nor was it directly
addressed by that court, although the court did acknowledge
its responsibility pursuant to “ Title 21 O.S. Supp. 1978,
§ 701.13 . . . to review the propriety of every sentence . . . in
addition to any direct appeal taken by the person sentenced to
death,” Eddings v. State, supra, 616 P.2d at 1162. Cf. Boykin v.
65
Alabama. 395 U.S. 238, 241-242 (1969); Gardner v. Florida,
supra, 430 U.S. at 361. In any event, there is no doubt that this
Court may consider the issue under Rule 34.1(a), see Vachon
v. New Hampshire, 414 U.S. 478 (1974), particularly in the
service of the principle of avoiding unnecessary decision of
novel constitutional questions, e.g., Alabama State Federation
o f Labor v. McAdory, 325 U.S. 450, 461 (1945).
Lockett held that
“ the Eighth and Fourteenth Amendments require that
the sentencer, in all but the rarest kind of capital case,
not be precluded from considering as a mitigating factor,
any aspect of a defendant’s character or record and any of
the circumstances of the offense that the defendant
proffers as a basis for a sentence less than death.”
438 U.S. at 604 (original emphasis). Here, the trial judge, in
his oral findings on the issue of mitigation, stated:
“ Now under the law that we have, the Court must at this
time consider the mitigation; and if the Court finds that
there is sufficient mitigation under the law the Court is
duty bound to impose a sentence of life instead of the
death penalty.
“ In this particular regard, the Court has attempted to as
certain what is meant by mitigation.135 Some examples of
mitigation that I have found, are to render less painful, to
lessen, to abate to moderate, or to soften. And I think
135 Under Oklahoma law, no mitigating circumstances are specifi
cally enumerated by statute. Instead, OKLA. ST AT. tit. 21 § 701.10,
effective July 24, 1976, provides that “ (i]n the sentencing proceed
ing, evidence may be presented as to any mitigating circumstances or
as to any of the aggravating circumstances enumerated in this act.”
No judicial guidance on the meaning of the statute existed in
Oklahoma at the time of petitioner Eddings’ trial, since it was only
when his death sentence was affirmed two years later that the
Oklahoma Court of Criminal Appeals first considered the new
statutory scheme.
6 6
there is some statutory authority in the State that the age
of a Defendant can be considered.
“ 1 have given very serious consideration to the
youth of the Defendant when this particular crime was
committed. Should 1 fail to do this, I think 1 would not be
carrying out my duty. On the other hand, the Court can
not be persuaded entirely by the youthfulness of the fact
that the youth was sixteen years old when this heinous
crime was committed. Nor can the Court in following the
law, in my opinion, consider the fact o f this young man s vio
lent background.
* * *
“ So not finding any mitigation other than the youthfulness,
and failing to find that it has sufficiently softened the
aggravating circumstances that the Court has found
beyond a reasonable doubt, the Court has no alternative
in this particular case other than to sentence Monty Lee
Eddings to death.”
(A. 188-189) (Emphasis supplied).
As reported more fully in the Statement of Facts,136 there
had been substantial mitigating evidence presented by peti
tioner Eddings’ counsel at the sentencing hearing concerning
Eddings’ “ violent background,” which the trial judge thus be
lieved himself obliged by law to disregard. This included tes
timony .that after Eddings’ parents’ divorce, his mother had
become an apparent alcoholic and prostitute (A. 110); t h a r
Eddings was beaten by his policeman step-father (A. 170),
that his natural father, an “ authoritarian,” often beat him,
slapped him (A. 113), and engendered in him feelings of bit
terness, hostility and fear ( id .f that he developed a psycholog
ical condition, in part because of these events (A. 171); and
that his fatal outburst against Patrolman Crabtree was psycho
logically precipitated in some measure by this violence in his
own past (A. 172).
‘“ See pages 13-19, supra.
67
Unquestionably, this evidence points to “ special facts about
this defendant that mitigate against imposing capital punish
ment,” Gregg v. Georgia, supra, 423 U.S. at 197. See, e.g.
(fdairy) Roberts v. Louisiana, supra, 431 U.S. at 637 (describ
ing evidence of “ emotional disturbance” as mitigating, in
addition to evidence of “ youth” ); Bell v. Ohio, 438 U.S. 637,
641 (1978) (referring to evidence of Bell’s mental, emotional
and drug problems); Godfrey v. Georgia, supra, 446 U.S. at
424 n.3 (1980) (referring to evidence of Godfrey’s prior hos
pitalization for drinking problems); see generally, Liebman &
Shepard, Guiding Capital Sentencing Discretion beyond the
“Boiler Plate’’: Mental Disorder as a Mitigating Factor, 66 GEO.
L. J. 757 (1978). The circumstances of Eddings’ stormy child
hood and adolescence, in short, were clearly “ relevant evi
dence” on “ why a death sentence . . . should not be
imposed,” Jurek v. Texas, supra, 428 U.S. at 271; and their
consideration by the trial court was “ a constitutionally in
dispensable part of the process of inflicting the penalty of
death.” Woodson v. North Carolina, supra, 428 U.S. at 304
(emphasis supplied).
There is no way to ascertain from this record whether, had
the trial judge felt legally free to consider such evidence, he
might have reached a decision to impose a life sentence. His
express statement that, “ in following the law, [he could not]
. . . consider the fact of this young man’s violent background"
*' manifestly “ creates the risk that the death penalty [was]
imposed in spite of factors which may call for a less severe
penalty.” Lockett v. Ohio, supra, 438 U.S. at 605. Petitioner
Eddings’ death sentence should therefore be vacated under
Lockett. See, e.g., Green v. Georgia, 442 U.S. 95 (1979) (per
curiam); Gardner v. Florida, 430 U.S. 349 (1977), Andres v.
United States. 333 U.S. 740, 752 (1948); Gallon v. Utah, 130
U.S. 83, 86-87 (1889); c f Slromberg v. California, 283 U.S.
359, 367-68 (1931); Street v. New York, 394 U.S. 576, 587-88
(1969).
• 68
CONCLUSION
The judgment of the Oklahoma Court of Criminal Appeals
affirming petitioner’s sentence of death should be reversed.
Respectfully submitted,
Jay C. Baker
1850 South Boulder
Tulsa, Oklahoma 74119
Court-appointed Counsel
for Petitioner
IN THE
(Enurt of tljp United States
October Term, 1980
No. 80-5727
M onty L ee E d d in g s , Petitioner,
v.
St a t e o f O k l a h o m a , Respondent.
APPEN D ICES
la
A PPEN D IX A
STATUTORY PROVISIONS INVOLVED
Okla. Stat. Ann. tit. 21, §701.9
§ 701.9-Punishment for Murder
A. A person who is convicted of or pleads guilty or
nolo contendere to murder in the first degree shall be
punished by death or by imprisonment for life.
Okla. Stat. Ann. tit. 21, §701.10
§ 701.10-Sentencing Proceeding Murder in the First
Degree
Upon conviction or adjudication of guilt of a defendant
of murder in the first degree, the court shall conduct a
separate sentencing proceeding to determine whether the
defendant should be sentenced to death or life imprison
ment. The proceeding shall be conducted by the trial
judge before the trial jury as soon as practical without
presentence investigation. If the trial jury has been
waived by the defendant and the state, or if the defend
ant pleaded guilty or nolo contendere, the sentencing
proceeding shall be conducted before the court. In the
sentencing proceeding, evidence may be presented as to
any mitigating circumstances or as to any of the aggravat
ing circumstances enumerated in this act. Only such evi-
•' de" ce in aggravation as the state has made known to the
defendant prior to his trial shall be admissible. However,
this section shall not be construed to authorize the in
troduction of any evidence secured in violation of the
Constitutions of the United States or of the State of
Oklahoma. The state and the defendant or his counsel
shall be permitted to present argument for or against sen
tence of death.
Okla. Stat. Ann. tit. 21, §701.11
§701.11-Instructions - Jury findings of aggravating cir
cumstances
In the sentencing proceeding, the statutory instruc
tions as determined by the trial judge to be warranted by
2a
the evidence shall be given in the charge and in writing to
the jury for its deliberation. The jury, if its verdict be a
unanimous recommendation of death, shall designate in
writing, signed by the foreman of the jury, the statutory
aggravating circumstances or- circumstances which it
unanimously found beyond a reasonable doubt. In non
jury cases, the judge shall make such designation. Unless
at least one of the statutory aggravating circumstances
enumerated in this act is so found or if it is found that
any such aggravating circumstance is outweighed by the
finding of one or more mitigating circumstances, the
death penalty shall not be imposed. If the jury cannot,
within a reasonable time, agree as to punishment, the
judge shall dismiss the jury and impose a sentence of
imprisonment for life.
Okla. Star. Ann. tit. 21, §701.12
§ 7 0 1 .1 2 -Aggravating Circumstances
Aggravating circumstances shall be:
1. The defendant was previously convicted of a felony
involving the use or threat of violence to the person,
2. The defendant knowingly created a great risk of
death to more than one person,
3. The person committed the murder for remunera
tion or the promise of remuneration or employed an
other to commit the murder for remuneration or tf^e
promise of remuneration;
4. The murder was especially heinous, atrocious, or
cruel;
5. The murder was committed for the purpose of
avoiding or preventing a lawful arrest or prosecution;
6. The murder was committed by a person while serv
ing a sentence of imprisonment on conviction of a
felony; or,
7. The existence of a probability that the defendant
would commit criminal acts of violence that would con
stitute a continuing threat to society.
3a
Okla. Slat. Ann. tit. 21, §701.13
§ 701.13 —Death Penalty — Review of sentence
A. Whenever the death penalty is imposed, and upon
the judgment becoming final in the trial court, the sen
tence shall be reviewed on the record by the Oklahoma
Court of Criminal Appeals. The clerk of the trial court,
within ten (10) days after receiving the transcript, shall
transmit the entire record and transcript to the Oklahoma
Court of Criminal Appeals together with a notice pre
pared by the clerk and a report prepared by the trial
judge. The notice shall set forth the title and docket num
ber of the case, the name of the defendant and the name
and address of his attorney, a narrative statement of the
judgment, the offense, and the punishment prescribed.
The report shall be in the form of a standard question
naire prepared and supplied by the Oklahoma Court of
Criminal Appeals.
B. The Oklahoma Court of Criminal Appeals shall
consider the punishment as well as any errors enum er
ated by the way of appeal.
C. With regard to the sentence, thex'ourt shall deter
mine:
1. Whether the sentence of death was imposed under
the influence of passion, prejudice, or any other arbitrary
factor;
2. Whether the evidence supports the jury’s or the
judge’s finding of a statutory aggravating circumstance as
enumerated in this act; and
3. Whether the sentence of death is excessive or dis
proportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
D. Both the defendant and the state shall have the
right to submit briefs within the time provided by the
court, and to present oral argument to the court.
E. The court shall include in its decision a reference to
those similar cases which it took into consideration. In
4a
additional to its authority regarding correction of its
errors, the court, with regard to review of the death sen
tence, shall be authorized to:
1. Affirm the sentence of death; or
2. Set the sentence aside and remand the case for
modification of the sentence to imprisonment for life.
F. The sentence review shall be in addition to direct
appeal, if taken, and the review and appeal shall be con
solidated for consideration. The court shall render its
decision on legal errors enumerated, the factual substan
tiation of the verdict, and the validity of the sentence.
5a
A P P E N D IX B
MEDIAN ELAPSED TIME IN MONTHS BETWEEN
SENTENCE OF DEATH AND EXECUTION OF
CONVICTED MURDERERS BY STATE
AND YEAR OF EXECUTION*
1956-
State 1956 1957 1958 1959 1960 19607
Alabama 13.6 11.6 16.8 14.0
Arizona 22.2 46.6 17.6 20.7 26.8
Arkansas 11.4 18.0 14.7
California* 19.4 13.8 51.7 16.2 13.1 22.8
Colorado 18.4 7.9 67.4 31.2
Connecticut’ 57.4 34.7 46.1
Florida 24.5 29.6 36.4 24.7 19.4 26.9
Georgia** 11.9 10.3 14.7 9.0 2.0 9.6
Idaho 10.4 10.4
Illinois 36.9 36.9
Indiana
Iowa
Kansas
Kentucky 18.2 18.2
Louisiana 23.3 24.0 12.3 19.9
Maryland 11.3 12.2 11.8
Massachusetts
Mississippi 7.8 24.1 29.9 20.6
Missouri 19.1 19.1
Nebraska 12.6 12.6
Nevada
New
22.0 22.0
Hampshire
New Jersey 29.1 29.1
New Mexico 16.4 20.5 18.5
New York
North
10.8 21.4 19.2 18.2 14.4 16.8
Carolina 23.7 11.5 17.6
Ohio* 13.2 6.8 12.1 21.7 22.3 15.2
6a
1956-
State 1956 1957 1958 1959 1960 I960!
Oklahoma
Oregon
Pennsylvania
South
Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wyoming
All states
14.6 16.6
14.1
11.1 21.8
3.3
78:7
10.6
6.6
28.7
3.8
2.0
28.2
14.0 13.5
28.1
8.0 2.4
16.9
2.1 5.4
7.3 20.0
15.3 13.6
15.4 15.5
21.1
16.5
10.6
2.9 4.6
27.4 41.0
15.1 6.2
1.2 19.4
10.4
15.4 14.4
Bailey, Deterrence and the Celerity of the Death Penalty: A Neglected
Question In Deterrence Research, 58 SOCIAL FORCES 1308, 1315,
Table 1 (1980).
7a
APPENDIX C
TEETERS - ZIBULKA INVENTORY OF PERSONS LINDER
20 EXECUTED UNDER STATE AUTHORITY BETWEEN
1864-1967 BY STATE, NAME, AGE. RACE AND DATE
STATE NAME AGE RACE DATE
ALABAMA
No. 45 Wesley Vincent 19 W 1936
46 Gabel Waters 19 B 1936
58 Frank Millhouse 18 B 1938
62 Willie James Whitfield 17 B 1938
87 William Clark 18 B 1941
102 .Henry Daniels, Jr. 19 B 1943
106 Daniel T. Reddy 19 W 1945
110 F. Ernest Johnson 17‘/2 B 1946
126 J. C. Winters V- 18 B 1949
133 Leveret Forrest 19 B 1952.
141 Melvin Jackson 18 B 1956
144 Jeremiah Reeves 18 B 1958
148 Joe Henry Johnson 17 B 1961
ARIZONA
ARKANSAS
CALIFORNIA
Eolsoin
No. 33 Earl Loomis 19 W 1915
50 Ed Montijo 19 W 1925
84 Aldrich Lutz 19 W 1935
San Quentin
No. 47 William Warner 18 — 1905
49 Henry Brown 18 — 1906
3a
STATE NAME AGE RACE DATE
54 Louis Dabner 18 — 1908
75 Louis Bundy 19 — 1915
77 Charles Oxnam 17 — 1916
98 Louis Guillen 19 — 1922
106 Lawrence Campbell 18 — 1923
122 Lewis Perry 19 — 1925
156 Charles Simpson 18 — 1931
182 Rush Griffin 19 1935
COLORADO
CONNECTICUT
No. 9 Charles Cross 18 W 1900
11 Joseph Watson 18 B 1904
20 Raeffaele Carfaro 19 W 1909
51 Soo Hoo Wing 19 Chin 1927
62 Carlo James De Care 19 W 1944
66 19 W 1946
FLORIDA
No. 14 Fortune Ferguson 16 B 1927
47 Moruoe Hasty 17 B 1935,
64 Robert Hinds 17 B 1937
73 Ivory Williams 18 B 1940
81 Nathaniel Walker 17 B 1941
82 Edward Powell 16 B 1941
83 Willie B. Clay 16 B 1941
106 Freddie L ane 18 B 1944
107 James Davis 16 B 1944
120 Lewis Green 19 B 1947
132 Lacy Stewart 17 B 1948
153 Nathaniel Orion Johnson 19 B 1954
158 Abraham Beard 18 B 1954
STATE NAME
GEORGIA
9a
AGE RACE DATE
No. 10 Pringle Williams 17 B 1926
40 Ed Capers 19 B 1929
64 Fred Griffin 18 B 1931
74 Eddie March 16 B 1932
90 Richard Mortis 18 B 1933
91 Richard Sims 18 B 1933
92 Mose White 18 B 1933
97 Grady Brooks 19 B 1933
100 Will Osborne 18 B 1934
113 Charlie Dodson 17 B 1935
124 ' Isaiah Ashley 18 B 1935
130 Jesse Reese 19 B 1935
136 Eddie Bower 18 B 1936
152 Leonard Brown 18 B 1937
172 Charlie Rucker 18 B 1938
185 James Bivins 19 B 1939
194 Fred Anderson 19 B 1940
195 Henry William Hicks 18 B 1940
201 Eddie Bennie Hayes 19 B 1941
203 Charlie Anderson 18 B 1941
222 Bernice Franklin 17 B 1943
229 Marlin Hancock 16 B 1943
233 S. A. Allison 17 B 1943
' 237 Willie Hicks 18 B 1944
250 L C. Johnson 19 B 1945
254 David Watkins 18 B 1945
265 Isaac Bonner 19 B 1946
274 Lee James Allen 16 B 1946
276 Willie Stevenson 17 B 1946
277 James Rufus Williams 19 B 1946
279 J. C. Hill 19 B 1946
287 Herbert Reddick 17 B 1947
290 Terreil Laughbridge 18 B 1947
300 James Mangum 18 B 1948
314 John A. Jones, Jr. 17 B 1949
10a
STATE NAME AGE RACE DATE
315 Wilbur G. Jones 18 B 1949
320 Robert F. Bryan 19 B 1950
334 Willie Ford Ballard 19 B 1951
356 Paul Wright 19 B 1954
360 Herman Lee Miller 18 B 1954
361 Willie Jackson 17 B 1954
365 Joe Lee Jones 17 B 1954
366 Charles L. King 19 B 1954
367 Calvin E. Davis 19 B 1954
368 James W. Morgan 18 W 1955
384 Don Mitchell Coleman 18 B 1957
414 Orelander Jones 19 B 1963
IDAHO
ILLINOIS
No. 14 Edward Balbin 19 W 1935
INDIANA
No. 18 William Ray 18 B 1920
61 James Swain 18 B 1939
1
IOWA
No. 1 James Dooley 18 W 1894
KANSAS
KENTUCKY
LOUISIANA
11a
STATE NAME AGE RACE DATE
MAINE
MARYLAND
No. 2 Carroll Gibson 18 B 1925
5 Ottie Simmons 19 B 1927
8 Alfred Simms 19 B 1927
49 John Lampkin 19 B 1943
63 Charles Lee Carmen 19 B 1947
65 Weldon Jones, Jr. 18 B 1947
78 Leonard M. Shockey 17 B 1959
MASSACHUSETTS
No. 9 Leong Gong 19 1909
l l Andrei Ipson 19 I9 ll
54 Paul Giaconrazza 19 - 1942
61 Donald Millard 19 - 1943
MISSISSIPPI
No. 6 Walter Johnson
MISSOURI
NEBRASKA
19 B 1955
NEVADA
No. 18 Raymond Plunkett 17 - 1944
22 David Blackwell 18 1949
NEW HAMPSHIRE
12a
STATE NAME AGE RACE DATE
NEW JERSEY
35 Stefano Ruggierri 17 W 1914
38 Michael Sparks 16 B 1915
66 William Battles 19 B 1923
NEW MEXICO
NEW YORK
Auburn
No. 54 David Dunn 19 W 1915
Clinton
Sing Sing
No. 141 Stanley J. Hillstein 19 W 1916
165 Elmer Hyatt 19 W 1920
223 John Rye 19 W 1925
242 Sam Wing 19 Chin 1926
245 John Garuglia 19 W 1926
246 Cosima Brescie 19 W 1926
279 Israel Fisher 19 W 1929
295 James Bolger 19 W 1930
302 Fred Carmosino 19 W 1931
306 Herbert Johnson 19 B 1931
313 Francis Crowley 19 W 1932
331 Thomas Carpenter 19 B 1933
332 Charles Bates 19 B 1933
372 Stanley Pluzdrak 17 W 1935
403 Charles Ham 19 B 1937
404 Frederick Fowler 18 B 1937
424 Vincente Forte 19 W 1939
426 Dominick Guaraglia 18 W 1939
479 Lawrence Edwards 18 B 1942
13a
STATE NAME AGE RACE DATE
489 Benitez Dejesus 18 B 1943
490 Edward Height 17 W 1943
491 William Diaz 18 B 1943
506 Gordon Cooke 19 B 1944
510 Lew York Bing 18 Chin 1944
530 Jauvham Jackson 18 B 1948
536 Harris Gray 18 B 1949
537 Louis Smiley 19 B 1949
553 Harley LaMarr 19 1 1951
574 Allen Henry 19 B 1954
580 Henry Matthews 18 W 1955
587 William Byers 19 W 1956OOookO Norman Roye 17 B 1956
NORTH CAROLINA
No. 27 Willie Black 18 B 1916
112 Wilson Autrey 19 B 1931
114 J. W. Ballard 17 B 1931
119 Dudlay Moore 19 B 1932
157 Caesar Miller 18 B 1935
158 Arthur Gosnell 18 W 1935
162 Allen Foster 19 W 1936
164 William Long 19 B 1936
168 Ed Hester 19 W 1936
184 Robert Glenn Brown 18 B 1937
193 Leroy McNeill 17 B 1937
194 William Perry 18 B 1937
209 L. J. Jefferson 17 B 1938
227 Willie Richardson 19 B 1939
232 Nathaniel Bryant 17 B 1940
254 Otis Harris 17 B 1942
260 John Henry Lee 19 B 1943
272 Wayman Grainger 19 B 1944
NORTH DAKOTA
NAME
14a
AGE RACE DATESTATE
OHIO
8 Otto Lueth 16 W 1890
19 William Whaley 18 B 1894
20 Charles Hart 18 W 1895
25 William Taylor 18 B 1895
29 William Haas 17 W 1897
40 Carl Berg 19 W 1904
51 Herman Hamilton 19 B 1905
73 Hurley Beard 18 W 1914
82 Frank Mazzard 19 w 1919
108 Samuel Purpera 17 w 1922
131 Alex Kuszik 19 w 1924
147 William Clark 19 w 1926
151 Emmanuel Ross 17 B 1926
160 Floyd Hewitt 16 W 1928
161 John Coverson 18 B 1928
163 W. H. Wilson 19 B 1928
164 James Coleman 18 B 1928
174 Lee Akers 17 W 1930
188 Blanton Ralls 19 B 1931
204 Joseph Murphy 18 B 1933
222 Theo Blackam 19 B 1935
235 Thomas Williams 19 B 1938
252 Pang Young 18 Chin 1939
265 Erwin Griffin 19 B 1943
.4
267 Louis Hand 17 W 1944
273 Henry Hagert 19 W 1945
288 Donald Frohner 16 W 1948
295 Asbell Adams 19 w 1949
313 Lon Stevenson 19 B 1952
318 Louis A. Angel 19 W 1953
325 Bernard Schreiber 19 W 1956
OKLAHOMA
No. 40 George Oliver
56 Charlie Sands
18 W 1933
19 1 1937
15a
STATE NAME AGE RACE DATE
OREGON
PENNSYLVANIA
SOUTH CAROLINA
No. 178 George Stimney 14 B 1944
SOUTH DAKOTA
TENNESSEE
TEXAS
UTAH
VERMONT
No. 5 Henry Welcome 18 — 1871
VIRGINIA
No. 2 Winston Green 17 B 1908
5 Benjamin Gilbert 19 W 1909
6 Arthrlius Christian (sic) 17 B 1909
20 Thurman Spinher 18 B 1910
31 John Eccles 17 B 1910
34 Harry Sitlington 17 B 1910
42 Byrd Jackson 18 B 1912
43 Virginia Christian 17 B 1912
65 Willie Puryear 19 B 1914
16a
STATE NAME
68 Arthur Neale
73 Lem Jones
78 Sherman Stanfield
79 Percy Ellis
82 Milton Maloy
83 Richard Green
84 Clifford Hickens
86 Minzer Harris
94 Guy Nixon
95 Tolson Bailey
103 Raleigh Haskins
118 Friz Lewis
119 Otto Clear
124 Rodney Hoke
140 James Washington
147 Alphonso Bellamy
149 Calvin Groome
150 Sam Panned
178 Charles Johnson
194 Thomas Harrison
AGE RACE DATE
19 B 1915
19 B 1915
18 B 1915
16 B 1916
19 B 1916
19 B 1916
19 B 1916
19 B 1916
19 B 1918
17 B 1918
18 B 1921
17 B 1924
18 B 1924
19 W 1925
19 B 1928
19 B 1930
18 B 1931
18 B 1932
19 B 1942
19 W 1946
WASHINGTON
No. 6 William White
33 Walter Dubuc
47 Earl Talbott
48 Roy Wright
18
17
19
19
W 1906
W 1932-*'
W 1939
W 1939
WEST VIRGINIA
17a
STATE NAME AGE RACE DATE
WYOMING
• *W. BOWERS, EXECUTIONS IN AMERICA, Appendix A (1974)
W = White
B = Black
I — Indian
Chin = Chinese
— = Not reported
All numbers correspond to the numbers used for identification in the
Teeters — Zibulka inventory.
18a
APPENDIX D
CHANGES OVER TIME PERIODS IN MAJOR
THEMES RECURRING IN GOVERNORS’STATEMENTS IN
JUSTIFYING COMMUTATIONS OF DEATH SENTENCES
FOR MURDERERS AND RAPISTS, NORTH CAROLINA*
Themes in
Commutation Statements
Percentage of Commutation
Statements which Expressed
Given Theme During Given
Years:
1909- 1924- 1939-
1923 1938 1954
Responsible officials and/or
jury urged commutation 69.6 52.5 44.4
Community urged commuta
tion 31.9 11.3 5.6
Age of offender or his under
privileged status 11.6 8.8 22.9
Victim contributed to crime or
was disreputable 21.7 16.3 25.9
Mental condition of offender 27.5 30.0 31.5
Crime was not premeditated 21.7 20.0 27.8
Evidence does not justify
death penalty or is of doubt
ful nature 36.2 30.0 22.9 -
Number of cases 69 80 54
‘Johnson, Selective Factors in Capital Punishment, 36 SOCIAL
FORCES 165, 168 Table 3 (1957).
i
19a
APPENDIX E
PERSONS UNDER AGE 20 AT THE TIME
OF OFFENSE AWAITING EXECUTION
ASOFMAY 1,1981
Age Name Race State
15 Todd Ice W Kentucky
16 Jose High B Georgia
16 Johnny Johnson W Georgia
16 Joseph Marshall B Louisiana
16 Reginald Smith B Louisiana
16 Monty Eddings. W Oklahoma
17 Frank Valencia W Arizona
17 Willie Simpson B Florida
17 Sam Gibson B Georgia
17 Andrew Legare B Georgia
17 Joseph Brown B Louisiana
17 Dalton Prejean B Louisiana
17* John Boutwell W Oklahoma
17 James Roach w South Carolina
17 Rudolph Tyner B South Carolina
17 Billie Battie B Texas
17 Harvey Earvin B Texas
18. Jose Ceja H Arizona
18 Raymond Tyson W Arizona
18 Michael Leach W California
18 Lenson Hargrave B Florida
18 Ronald Jackson B Florida
18 Roy McKennon B Florida
18 Terry Goodwin B Georgia
18 David Jarrell W Georgia
18 John Young B Georgia
18 Alphonso Morgan B Georgia
18 Willie Reddix B Mississippi
18 Larry Jones B Mississippi
18* Charles Giddens B Oklahoma
19 Ricky Tyson W Arizona
19 Charles Neal W Arkansas
19 Douglas Stankewitz NA California
19 Earl Jackson B California
19 Marvin Walker B California
19 Jesse Rutledge B Florida
19 Robert Buford B Florida
19 Anthony Peek B Florida
19 Frank Smith B Florida
19 Donald Thomas B Georgia
19 Nathen Brown B Georgia
19 Freddie Davis W Georgia
19 Eugene Thomas B Georgia
19 Roger Collins B Georgia
19 Carl Isaacs W Georgia
19 Tony Amadeo W Georgia
19 David Peek W Georgia
19 Kenneth Dam pier W Georgia
19 Michael Servi W Georgia
19 Daniel Baker w Georgia
19 Jerry Sprouse W Georgia
19 Juan Caballero H Illinois
19 Fuis Ruiz H Illinois
19 James Copeland W Fouisiana
19 Lawrence Johnson B Maryland
19 Michael Pinch W North Carolina
19 Farry Dean Smith W Oklahoma
19 Robert Glidewell W Oklahoma
19 James Anthony Butler W South Carolina
19 Richard Simon B Tennessee
19 John Henry Quinones H Texas
19 Stanley Burks B Texas
19 William Andrews B Utah
’Age when received at State penitentiary.
W = White
B = Black
H = Hispanic
NA = Native American