Thompson v. Oklahoma Brief Amici Curiae in Support of Petitioner

    No. 86-6169

In  T h e

^ujjrntu' (!Imui nf tin' Itttteii Btnt ?b
Oc to b er  T e r m , 1986

W il l ia m  W a y n e  T h o m p s o n ,
Petitioner,

v.

St a t e  of  O k l a h o m a ,
Respondent.

On Writ of Certiorari to the 
Court of Criminal Appeals of the State of Oklahoma

BRIEF OF THE NATIONAL LEGAL AID  
AND DEFENDER ASSOCIATION,

THE NATIONAL ASSOCIATION OF 
CRIMINAL DEFENSE LAWYERS,

AND THE AMERICAN JEWISH COMMITTEE 
AS AMICI CURIAE IN 

SUPPORT OF PETITIONER

Ja m e s  E . Co l e m a n , Jr . 
M ic h a e l  A . M ello *
W il m e r , Cutler  & P ickering

2445 M Street, N.W. 
Washington, D.C. 20037-1420 
(202) 663-6000 
Attorneys for Amici Curiae

* Counsel of Record

W ils o n  - Eras P r in t in g  C o . ,  In c . - 7 8 9 -0 0 9 6  - W a s h in g t o n , d . c . 20001



TABLE OF CONTENTS ................................................  i

TABLE OF AUTHORITIES.........................................  iii

INTEREST OF AMICI CURIAE ....................................  1

SUMMARY OF ARGUMENT.........................................  2

ARGUMENT ....................................................................... 3

THE EXECUTION OF A YOUTH WHO WAS 
UNDER THE AGE OF EIGHTEEN AT THE 
TIME OF THE OFFENSE WOULD VIOLATE 
EVOLVING STANDARDS OF DECENCY...........  3

A. In Most States and for Most Purposes, Age
Eighteen Marks the Boundary Between Child­
hood and Adult Responsibilities .........................  5

B. The Reasons for the Boundary Line: Adoles­
cents Lack the Maturity, Experience, Moral 
Judgment and Sophistication of Adults............  16

C. The Reasons for Treating Children Differently 
From Adults Apply With Special Force Here:
The Developmental Differences Between Ado­
lescents and Adults Diminish the State’s Inter­
est in Inflicting the Death Penalty on Minors.....  21
1. General Deterrence .........     22
2. Retribution ........................................................  23

CONCLUSION....................................................................  30

APPENDICES .... ..............................................................
A. Age of Majority .....................................    la
B. Right to Serve on Jury .........................................  lb
C. Right to Marry Without Parental Consent____ lc
D. Consent to All Forms of Medical Treatment.... Id

TABLE OF CONTENTS
Page



11

E. Driving Without Parental Consent ..................... le
F. Right to Purchase Pornographic Materials.......  I f
G. Right to Participate in Legalized Gambling.......  lg
H. Right to Patronize Pool Halls ....... ...................... lh
I. Right to Pawn Property or to Sell to Junk or

Precious Metals Dealers ...... ............................... . li
J. Right to Work in Hazardous Occupations.......... . l j
K. Letter from Maryland Governor William Schae­

fer to Clayton Mitchell, Speaker, Maryland 
House of Delegates, April 7, 1987 .....................  Ik

TABLE OF CONTENTS— Continued
Page



I l l

TABLE OF AUTHORITIES
Cases Page

Bellotti v. Baird, 434 U.S. 622 (1979)..................  17,20
Carey v. Population Services International, 431

U.S. 678 (1977).......................................................  5
Coker v. Georgia, 433 U.S. 584 (1977) ............3,5,21,27
Craig v. Boren, 429 U.S. 190 (1976)......................  6
Eddings v. Oklahoma, 455 U.S. 104 (1982)....2, 3, 4, 17, 18 
Eddings v. State, 688 P.2d 342 (Okla. Crim. App.

1984), cert, denied, 470 U.S. 1051 (1985)......  4
Enmund v. Florida, 458 U.S. 782 (1982)....3, 21, 22, 23, 27
Fisher v. United States, 328 U.S. 463 (1946).......  22
Furman v. Georgia, 408 U.S. 238 (1972) .........25,26,27
Gallegos v. Colorado, 370 U.S. 49 (1962)..............  18
Ginsberg v. New York, 390 U.S. 629 (1968)...... . 18
Goss v. Lopez, 419 U.S. 565 (1975) .......................... 6
Gregg v. Georgia, 428 U.S. 153 (1976) ____ 21, 22, 23, 27
Haley v. Ohio, 332 U.S. 596 (1948) .......... ............. 18
H.L. v. Matheson, 450 U.S. 398 (1981)..................  6, 17
In Re Winship, 397 U.S. 358 (1970) .....................  10
Kent v. United States, 383 U.S. 541 (1966)............ 10
Lockett v. Ohio, 438 U.S. 586 (1978)......................  27
McKeiver v. Pennsylvania, 403 U.S. 528 (1971).... 10
May v. Anderson, 345 U.S. 528 (1953).................. 17
New Jersey v. T.L.O., 469 U.S. 325 (1985)  ...........  5,18
New York v. Ferber, 458 U.S. 747 (1982)............  5, 17
Oregon v. Mitchell, 400 U.S. 112 (1970)................  17
Parham v. J.R., 442 U.S. 584 (1979)..................... 18
Planned Parenthood of Central Missouri v. Dan-

forth, 428 U.S. 52 (1976) ....................................  6
Prejean v. Blackburn, 743 F.2d 1091 (5th Cir.

1984), modified on other grounds, 765 F.2d 482 
(5th Cir. 1985), petition for cert, filed, No. 85-
5609   ....... .............. ............................................. 25

Roach v. Martin, 757 F.2d 1463 (4th Cir.), cert.
denied, 106 S. Ct. 185 (1985)..................... ........ . 25

Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir.),
cert, denied, 473 U.S. 919 (1985) ........................ 25

Schall v. Martin, 467 U.S. 253 (1984) .................. . 17
Skipper v. South Carolina, 106 S. Ct, 1669 (1986).. 17, 18,

22
South Dakota v. Dole, 107 S. Ct. 869 (1987) (order 

granting certiorari)................................................ 16



IV

Spaziano v. Florida, 468 U.S. 447 (1984)..............  28
Tison v. Arizona, 55 U.S.L.W. 4496 (U.S. April

21, 1987) ................................................................. 3,22
Trimble v. State, 300 Md. 387, 478 A.2d 1143 (Md.

1984), cert, denied, 469 U.S. 1230 (1985).......  25
Trop v. Dulles, 356 U.S. 86 (1958)........ ................. 3
Woodson v. North Carolina, 428 U.S. 280 (1976).. 27

Statutes and Constitutions
50 U.S.C. app.§ 454 (1981).........................................  7, 8
Okla. Const, art. 3, § 1 ...............................................  6
Ark. Stat. Ann. § 82-363 (g) (1976 & Supp. 1986).. 7
Cal. Civ. Code Ann. § 62 (West 1954 & Supp.

1986)........        7
Colo. Rev. Stat. § 16-11-103 (1986) ......................... 26
HB 106, Laws 1986, Ch. 82:1 (codified as N.H.

Rev. Stat. Ann. § 630:5 (IX) to (XIII) (1986
Supp.)) ..................................................................... 26

Neb. Rev. Stat. § 28-105.01 (1985) .......................  26
N.J. Stat. Ann. § 2C:11-3F (West 1986) (L. 1985,

Ch. 478, §1, approved January 17, 1986)____ 26
Okla. Stat. Ann. tit. 10, § 1101 (West 1983) ... 7

15, § 1 3 ........   6
15, § 19 ..................................   7
15, § 20 .......................................  7
21, § 995.13 ............................ 7
21, §1103...................................  7
21, §1215...................................  6
21, § 1241 ...................................  6
38, § 28 ------------    6
43, § 3 . ........................................  6
59, § 1511...................................  7
62, § 2602.......................  7
63, § 703.....................................  7
63, §2152...................................  7

Or. Rev. Stat. § 161-620 (1985)...............................  26
Tex. Penal Code Ann. § 8.07(d) (Vernon Supp.

1982) .......    25
Utah Code Ann. § 15-2-1 (Supp. 1986)..................  7

TABLE OF AUTHORITIES— Continued
Page



V

TABLE OF AUTHORITIES— Continued

Legislative Materials Page
Establishing Constitutional Procedures for the 

Imposition of Capital Punishment: Report of 
the Committee on the Judiciary, 99th Cong., 2d
Sess. (1986) ................................   26

H.R. Rep. No. 92-37, 92d Cong., 1st Sess. (1971).... 8
Lowering the Voting Age to 18: Hearings Before 

the Subcommittee on Constitutional Amend­
ments of the Senate Committee on the Judici­
ary, 91st Cong., 2d Sess. (1970).......................... 8

130 Cong. Rec. H5395-H5407 (daily ed. June 7,
1984) .........................................................................  16

129 Cong. Rec. S8243 (daily ed. June 26, 1984).... 16
130 Cong. Rec. H7220-H7223 (daily ed. June 27,

1984) ..........................................................................  16
S. Rep. No. 92-26, 92d Cong., 1st Sess. (1971).....  8

Periodicals
Comment, Capital Punishment for Minors: An 

Eighth Amendment Analysis, 74 J. Crim. L. &
Criminology 1471 (1983) .........................................   12,23

Comment, Juvenile Curfew Ordinances and the
Constitution, 76 Mich. L. Rev. 109 (1977).......  10

Fredlund, Children and Death From the School
Setting, 47 J. School Health 533 (1977) .. ............ 20

Gale, Retribution, Punishment, and Death, 18
U.C. Davis L. Rev. 973 (1985)............................  22

Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1
(1980)   28

Hafen, Children’s Liberation and the New Egali­
tarianism: Some Reservations About Abandon­
ing Youth to Their “Rights,” 1976 B.Y.U. L.
Rev. 605.................................................................... 16

Handler, The Juvenile Court and the Adversary 
System: Problems of Function and Form, 1965
Wis. L. Rev. 7 ............  10

Hartman, “ Unusual” Punishment: The Domestic 
Effects of International Norms Restricting the 
Application of the Death Penalty, 52 U. Cin. L.
Rev. 655 (1983) ....................................................  13,14



VI

The Juvenile Court and Serious Offenders, 35 Juv.
& Family Ct. J. (Preamble) (Summer 1984).... 11

Liebman & Shephard, Guiding Capital Sentencing 
Discretion Beyond the “ Boiler Plate” : Mental 
Disorder as a Mitigating Factor, 66 Geo. L.J.
757 (1978) ...............................................................  23

Note, Curfew Ordinances and the Control of 
Nochirnal Juvenile Crime, 107 U. Pa. L. Rev.
66 (1958) .........  9

Note, The Dece?icy of Capital Punishment for 
Minors: Contemporary Standards and the Dig­
nity of Juveniles, 61 Ind. L.J. 757 (1986).......  7

Patrick, The Status of Capital Punishment: A 
World Perspective, 56 J. Crim. L., Criminology,
& P.S. 397 (1965) .................................................  14

Rest, Davison & Robbins, Age Trends in Judging 
Moral Issues, 49 Child Development 263

 ̂ (1978) ......................................................   19
Streib, Death Penalty for Children: The Ameri­

can Experience With Capital Punishment for 
Crimes Committed While Under Age Eighteen,
36 Okla. L. Rev. 613 (1983)___ __________ ___’ 4

Streib, The Eighth Amendment and Capital Pun­
ishment of Juveniles, 34 Clev. St. L. Rev. 363 
(1987) - ....................  13, 23,24

TABLE OF AUTHORITIES— Continued
Page

Books, Essays, and Other Materials
Adler & Dolcini, Psychological Issues and Abor­

tion for Adolescents, in Adolescent Abortion
(G. Melton ed. 1986)............................................

American Bar Association Report No. 117A, ap­
proved August 1983 ...... ................................’

American Law Institute, Model Penal Code (Pro­
posed Official Draft 1962) ........

American Law Institute, Model Penal Code (Offi­
cial Draft and Revised Comments 1980) 

Amnesty International, United States of America:
The Death Penalty (1987) ________

Barnes, Death Penalty Exemption Advances, 
Washington Post, April 11, 1987.................

20

13

13

13

14 

26



V l l

Barnes & Schmidt, Schaefer Praises Session As 
“ Unusually Successful,” Washington Post, April
14, 1987 .................................................................... 26

Brief of Amici Curiae, South Dakota v. Dole, No.
86-260 (1987) .............  16

Brief of Petitioner, South Dakota v. Dole, No. 86-
260 (1987) ..............................................................  16

C. Bartollas, Juvenile Delinquency (1985)............  22
W. Berns, For Capital Punishment (1979) ............ 29
W. Bowers, Legal Homicide (1984) .......................  22
Bruck, Executing Teen Killers Again: The 14- 

Year-Old Who, In Many Ways, Was Too Small 
For the Chair, Washington Post, Sept. 15, 1985.. 4

S. Davis, Rights of Juveniles: The Juvenile Jus­
tice System (1986) ................................................  11,12

E. Erikson, Childhood and Society (2d ed. 1963).. 19
Federal Bureau of Investigation, U.S. Department 

of Justice, Crime in the United States: 1978
(1979) ....................... - .... - .....................................  21

S. Gettinger, Sentenced to Die (1979) ..... ...... ....... 29
A. Goldstein, The Insanity Defense (1967)...........  23
Gordon, The Tattered Cloak of Immortality, in 

Adolescence and Death (C. Coor & J. McNeil
eds. 1986) ___ _______________ ________ _______  19, 20

Handbook of Existing Rules Pertaining to Human 
Rights in the Inter-American System, OEA/
Ser.L/V/11.65, Doc. 6 (July 1, 1985) ................ 15

Hostler, The Development of the Child’s Concept 
of Death, in The Child and Death (0. Sahler ed.
1978) ..........................................................    19,20

Institute of Judicial Administration/American 
Bar Association, Juvenile Justice Standards, 
Standards Relating to Juvenile Delinquency and
Sanctions (1980) .........    11

Institute of Judicial Administration/American 
Bar Association, Juvenile Justice Standards, 
Standards Relating to Transfer Between Courts

TABLE OF AUTHORITIES— Continued
Page

Rasterbaum, Time and Death in Adolescence, in 
The Meaning of Death (H. Feifel ed. 1959).... 20



V l l l

Kohlberg, Development of Moral Character and 
Moral Ideology, in Review of Child Development 
Research (M. Hoffman & L. Hoffman eds.
1964) .........................................................................  19

LaFraniere, Minors’ Entertainment Curfew Sought
in D.C., Washington Post, May 6, 1987.................  10

Letter from William Schaefer to Clayton Mitchell, 
Speaker, Maryland House of Delegates, April 7,
1987 .......................................................................... 26

J.S. Mill, On Liberty (Penguin Classics 2d ed.
1986) ..........................................................................  29

Miller, Adolescent Suicide: Etiology and Treat­
ment, in Adolescent Psychiatry (S. Feinstein,
J. Looney, A. Schwartzberg & A. Sorosky eds.
1981) .........................................................................  19,20

Multilateral Treaties Deposited with the Secre­
tary General of the U.N., U.N. Doc. ST/LEG/
Ser.E/3 (1985) ....................................................... 15

National Commission on Reform of Criminal Law,
Final Report of the New Federal Code (1971).... 13

National Conference of Commissioners on Uni­
form State Laws, Uniform Juvenile Court Act
of 1968 (1979) ...................................  11

National Institute for Juvenile Justice and De­
linquency, U.S. Department of Justice, Major 
Issues in Juvenile Justice Information and 
Training, Youth in Adult Courts: Between Two
Worlds (1982).........................................................  H

Office of Juvenile Justice and Delinquency Preven­
tion, U.S. Department of Justice, Assessing the 
Relationship of Adult Criminal Careers to Juve­
nile Careers: A Summary (1982)......................... 21

E. Peel, The Nature of Adolescent Judgment
(1971) ......................................................................  19

President’s Commission on Law Enforcement and 
Administration of Justice, Task Force Report: 
Juvenile Delinquency and Youth Crime 1967).. 10

TABLE OF AUTHORITIES— Continued
Page



IX

President’s Commission on Law Enforcement and 
Administration of Justice, The Challenge of
Crime in a Free Society (1967)..........................  24

Resolution N, Inter-American Commission on 
Human Rights, Organization of American 
States, OEA/Ser. L/V/11.69, Doc. 17 (March
27, 1987)................................................................... is

Shipp, Restricting Use of Death Penalty Is Long 
Overdue, Atlanta Journal-Constitution, January
4, 1987 ....................................................................... 26

Transcript of Oral Argument (November 2,
1981), Eddings v. Oklahoma, 455 U.S. 104
(1982)........................................................................ 3

Twentieth Century Fund Task Force on Sentenc­
ing Policy Toward Young Offenders, Confront­
ing Youth Crime (1978) ........     .11,18,19,20

20 Weekly Comp., Pres. Doc. 1036 (July 17, 1984).. 16
2 Illinois Suicides Similar to New Jersey Teen-

Agers, Washington Post, March 14, 1987............. 20
United Nations, Economic and Social Council, Re­

port of the Secretary General, Capital Punish­
ment (1973)............................................................. 14

United States Department of Health, Education 
and Welfare, Welfare Administration, Chil­
dren’s Bureau, Standards for Juvenile and Fam­
ily Courts (1966) .... .........................................  U

United States Department of Health and Human 
Services, The Legal Status of Adolescents 1980
(1981) .........................................................  rj

United States Department of Justice, National In­
stitute for Juvenile Justice and Delinquency 
Prevention, Working Papers of the National 
Task Force to Develop Standards and Goals for 
Juvenile Justice and Delinquency Prevention,
Jurisdiction— Delinquency, Vol. IV (1977).......  n

Wilson & Herrnstein, Crime and Human Nature
<1985) ...................................................... 20,21

TABLE OF AUTHORITIES— Continued
Page



X

TABLE OF AUTHORITIES— Continued
Page

Zimring, American Youth Violence: Issues and 
Trends, in Crime and Justice: An Annual Re­
view of Research (N. Morris & M. Tonry eds.
1979) ......................................................... -............... 21

F. Zimring, Background Pager, in Twentieth Cen­
tury Fund Task Force on Sentencing Policy 
Toward Young Offenders, Confronting Youth
Crime (1978) ..................................... -................... 20

F. Zimring, The Changing Legal World of Adoles­
cence (1982) ..........................................................  9



I n  T h e

dmrrt at %  lliutvh States
O c to ber  T e r m , 1986

No. 86-6169

W il l ia m  W a y n e  T h o m p s o n ,
v Petitioner,

S t a t e  o f  O k l a h o m a ,
_________ Respondent.

On Writ of Certiorari to the 
Court of Criminal Appeals of the State of Oklahoma

BRIEF OF THE NATIONAL LEGAL AID  
AND DEFENDER ASSOCIATION,

THE NATIONAL ASSOCIATION OF 
CRIMINAL DEFENSE LAWYERS,

AND THE AMERICAN JEWISH COMMITTEE 
AS AMICI CURIAE IN 

SUPPORT OF PETITIONER

INTEREST OF AMICI CURIAE 1

The National Legal Aid and Defender Association 
(NLADA) is a non-profit organization with a member­
ship of approximately 4,700 attorneys and organizations. 
NLADA’s primary purpose is to assist in providing effec­
tive legal services to persons unable to retain counsel in 
criminal and civil proceedings.

The National Association of Criminal Defense Lawyers 
(NACDL) is a non-profit corporation with a nation-wide

1 Amici curiae have obtained the written consent of the parties to 
file this brief, as indicated by the consent letters previously filed 
with the Court.



2

membership of over 4,000 lawyers. It is concerned with 
the protection of individual rights and the improvement 
of criminal law practice and procedures.

The American Jewish Committee (AJC) is an organiza­
tion of some 50,000 members which was founded in 1906, 
primarily to protect the civil and religious rights of Jews. 
AJC, however, has also been deeply committed to assur­
ing liberty and justice for all Americans.

SUMMARY OF ARGUMENT

Amici begin with the assumption— accepted by the 
State of Oklahoma in Eddings v. Oklahoma, 455 U.S. 104
(1982)— that there is some age below which execution 
becomes cruel and unusual punishment. This brief ad­
dresses the question invited by such an assumption: At 
what age does our culture set the line? Amici’s answer is 
age 18. Throughout our legal system, we recognize age 
18 as the dividing line between adult responsibilities and 
childhood. That is the only principled line here as well.

In most states and for most purposes, minority status 
— defined as lower than age 18— confers a host of legal 
disabilities. Minors are treated differently because minors 
are different: The diverse legal disabilities are bottomed 
on the common sense and empirically supportable notion 
that minors lack maturity, judgment, impulse control and 
experience. Finally, exemption of minors from capital 
punishment will not detract from the penological justifica­
tions for the death penalty. Exclusion of minors from 
the death penalty would not abate the deterrent force of 
the penalty for other minors, since adolescents are less 
likely to commit the sort of coldly calculated crimes that 
the death penalty may be expected to deter. Exemption 
of minors from execution would not dilute deterrence for 
adults, because adults would most likely not identify with 
condemned minors. Juvenile executions also are so rare 
that preclusion of such executions can have little impact 
on the deterrence of the population at large. Jury be­



3

havior demonstrates that execution of minors would not 
materially advance the interest in retribution: Juries, 
the representatives of the community whose outrage is 
being expressed by death sentences, seldom vote to con­
demn minors.

ARGUMENT

THE EXECUTION OF A YOUTH WHO W AS UNDER 
THE AGE OF EIGHTEEN AT THE TIME OF THE 
OFFENSE WOULD VIOLATE EVOLVING STAND­
ARDS OF DECENCY

The cruel and unusual punishments clause of the eighth 
amendment, made binding upon the states through the 
fourteenth amendment, prohibits punishments that vio­
late “ the evolving standards of decency that mark the 
progress of a maturing society,” Trap v. Dulles, 356 U.S. 
86, 101 (1958), as those standards are revealed by his­
tory and tradition, legislative enactments, and actual jury 
verdicts. Tison v. Arizona, 55 U.S.L.W. 4496, 4499 (U.S. 
April 21, 1987) ; Enmund v. Florida, 458 U.S. 782 
(1982) ; Coker v. Georgia, 433 U.S. 584, 592 (1977). The 
execution of a youth for an offense committed when he 
was under age 18 violates contemporary norms and is 
therefore unconstitutional.

When it last argued to the Court that minors may be 
put to death, the State of Oklahoma conceded that “ it 
would be cruel and unusual punishment to impose the 
death penalty on an individual who was ten years old . . . .  
[T]hat by itself would be enough to convince anybody, 
including this Court, that a ten-year-old person under no 
circumstances should receive the death penalty.”  Tran­
script of Oral Argument (November 2, 1981) at 28, 
Eddings v. Oklahoma, 455 U.S. 104 (1982). The age of 
ten was not hypothetical. The youngest children known 
to have been executed in the United States were two ten- 
year-olds: A Black child, whose name has been lost to 
history and who was hanged in Louisiana in 1855, and



James Arcene, a Cherokee Indian child hanged in Arkan­
sas in 1885.2

Today, we intuitively recoil at the thought of putting 
a ten-year-old child to death. This reaction reflects a 
century-old evolution both in the law and in the culture 
within which the law evolves, an evolution towards rec­
ognition of a special concern for young people. The vex­
ing question then becomes: At what age does this special 
concern for young people give way to an insistence that 
they pay the ultimate price for their acts?

This question was presented in Eddings v. Oklahoma, 
455 U.S. 105 (1982), but the Court did not reach the 
constitutionality of inflicting the death penalty on juve­
niles. Id. at 110 n.5. Instead, the Court remanded Edd­
ings’ death sentence to the Oklahoma courts with instruc­
tions to “ consider all relevant mitigating evidence and 
weigh it against the evidence o f the aggravating circum­
stances.”  Id. at 117. Eddings held that “ youth must be 
considered a relevant mitigating factor.”  Id. at 115. 
Amici submit that the individualized consideration of the 
defendant’s age required by Eddings is insufficient to 
prevent the imposition o f death sentences which are cruel 
and unusual under contemporary standards.3 The facts

2 Streib, Death Penalty for Children: The American Experience 
With Capital Punishment for Crimes Committed While Under Age 
Eighteen, 36 Okla. L. Rev. 613, 619-20 (1983). Estimates of the 
youngest person put to death in this century vary. One commen­
tator opined that “since 1900, the youngest has been 13-year-old 
Fortune Ferguson, Jr., electrocuted at the Florida State Prison on 
April 27, 1927.” Id. at 620. Another writer argued that George 
Stinney, executed at age 14 by South Carolina in 1944, was the 
youngest person put to death in this century. Bruck, Executing 
Teen Killers Again: The 14-Year-Old Who, in Many Ways, Was 
Too Small for the Chair, Washington Post, Sept. 15, 1985, at D l.

3 In Eddings, the death sentence was reinstated by the trial judge 
following remand from this Court. Eddings v. State, 688 P.2d 342, 
343 (Okla. Crim. App. 1984), cert, denied, 470 U.S. 1051 (1985). 
The Oklahoma Court of Criminal Appeals modified the sentence to 
life imprisonment. Id.

4



5

of the case before the Court starkly illustrate the need to 
draw a line between childhood and adulthood that reflects 
our shared notions of responsibility and culpability.

Amici will demonstrate that the eighth and fourteenth 
amendments require that a person be eighteen years or 
older at the time of the offense to be subject to the death 
penalty.4 Drawing the line at any given age should be 
“ informed by objective factors to the maximum possible 
extent.”  Coker v. Georgia, 433 U.S. 584, 592 (1977). 
In this case the line is easier to identify than most: 
Throughout our legal system, we recognize age eighteen 
as the dividing line between adult responsibility and 
childhood.

A. In Most States and for Most Purposes, Age Eighteen 
Marks the Boundary Between Childhood and Adult 
Responsibilities

The “ law has generally regarded minors as having a 
lesser capability for making important decisions,”  Carey 
v. Population Services International, 431 U.S. 678, 693 
n.15 (1977), and “ recognizes a host of distinctions be­
tween the rights and duties of children and those of 
adults.”  New Jersey v. T.L.O., 469 U.S. 325, 350 n.2 
(1985) (Powell, J., concurring). Because of these dis­
tinctions, the Court has “ sustained legislation aimed at 
protecting the physical and emotional well-being of youth 
even when the laws have operated in the sensitive area 
o f constitutionally protected rights.”  New York v. 
Ferber, 458 U.S. 747, 757 (1982). The “ State’s interest 
in the welfare of its young citizens justifies a variety of 
protective measures. Because he may not foresee the con­
sequences of his decision, a minor may not make an en­
forceable bargain. He may not lawfully work or travel

4 The relevant age should, of course, be age at the time of the 
offense rather than age at the time of trial. See, e.g., Institute of 
Judicial Administration/American Bar Association, Juvenile Jus­
tice Standards, Standards Relating to Transfer Between Courts, 
Commentary to Standard 1.1, at 15 (1980).



6

where he pleases, or even attend exhibitions of constitu­
tionally protected adult motion pictures. Persons below 
a certain age may not marry without parental consent.” 
H. L. v. Matheson, 450 U.S. 398, 421-22 (1981) (Stevens, 
J., concurring) (quoting Planned Parenthood of Central 
Missouri v. Danforth, 428 U.S. 52, 102 (1976) (Stevens, 
J., dissenting)) ; see also Danforth, 428 U.S. at 95 & n.2 
(White, J., dissenting). The “ experience of mankind, as 
well as the long history of our law, recogniz[es] that 
there are differences which must be accommodated in 
determining the rights and duties of children as compared 
with those of adults. Examples of this distinction abound 
in our law: in contracts, in torts, in criminal law and 
procedure, in criminal sanctions and rehabilitation, and 
in the right to vote and to hold office.”  Goss v. Lopez, 
419 U.S. 565, 590-91 (1975) (Powell, J., dissenting) 
(emphasis in original).

In Oklahoma, a minor-—defined as a person under age 
18 unless otherwise provided by statute—5 6 7 8 cannot vote;9 
cannot sit on a ju r y ;7 cannot marry without permission 
of a parent or guardian;8 cannot possess alcohol;9 can­
not purchase cigarettes;10 cannot patronize bingo par­

5 Okla. Stat. Ann. tit. 15, § 13 (West 1983). Prior to 1972, 
Oklahoma defined the commencement of civil majority as age 18 for 
females and age 21 for males; females were held criminally respon­
sible as adults at age 18 and males at age 16. Craig v. Boren, 429 
U.S. 190, 197 (1976). In 1972, age 18 was established as the age 
of majority for males and females for civil and criminal pur­
poses. Id.

6 Okla. Const, art. 3, § 1.

7 Okla. Stat. Ann. tit. 38, § 28 (West Supp. 1987).

8 Okla. Stat. Ann. tit. 43, § 3 (West 1979) (age 18).

9 Okla. Stat. Ann. tit. 21, § 1215 (West 1983) (age 21).

10 Okla. Stat. Ann. tit. 21, § 1241 (West Supp. 1987) (age 18).



7

lors 11 or pool halls; 12 cannot pawn property; 13 cannot 
consent to services by health professionals for most med­
ical care, unless he is married or otherwise emancipated; 14 
cannot donate blood without parental permission; 15 may 
disaffirm any contract, except for “ necessaries” ; 16 and 
may not operate or work at a shooting gallery.17 The 
Oklahoma delinquency statutes define “ child” as “any 
person under the age of eighteen.” 18

Oklahoma is not unique; minority status universally 
confers a host of disabilities.19 Eighteen years is the line 
selected by Congress and the states in their enactment 
and ratification of the twenty-sixth amendment to the 
Constitution, governing voting age. Following extensive

11 Okla. Stat. Ann. tit. 21, § 995.13 (West 1983) (age 18).

12 Okla. Stat. Ann. tit. 21, § 1103 (West 1983) (age 18).

13 Okla. Stat. Ann. tit. 59, § 1511 (West Supp. 1987) (age 18).

14 Okla. Stat. Ann. tit. 62, § 2602 (West 1984) (age 18 unless in 
Armed Services).

15 Okla. Stat. Ann. tit. 63, § 2152 (West 1983) (age 18).

16 Okla. Stat. Ann. tit. 15, §§ 19, 20 (West 1983) (age 18).

17 Okla. Stat. Ann. tit. 63, § 703 (West 1984) (age 21).

18 Okla. Stat. Ann. tit. 10, § 1101 (West 1987).

19 See generally Note, The Decency of Capital Punishment for 
Minors: Contemporary Standards and the Dignity of Juveniles, 61 
Ind. L.J. 757, 775-80 (1986) ; United States Department of Health 
and Human Services, The Legal Status of Adolescents 1980 (1981). 
These legal disabilities are not without exceptions. The “emanci­
pation” of a minor— by, for example, marriage or enlistment in 
the armed services— may free him from the legal disabilities prior 
to the actual date of his majority. See, e.g., Cal. Civ. Code Ann. § 62 
(West 1954 & Supp. 1986) ; Utah Code Ann. § 15-2-1 (Supp. 1986). 
However, parental consent is required for minors to marry, see 
Appendix C, or to enlist in the military. 50 U.S.C. § 454 app. (c) 
(1981). The “mature minor” notion also permits a child to consent 
to medical treatment if he is capable of appreciating its nature and 
consequences. See, e.g., Ark. Stat. Ann. § 82-363 (g) (1976 & Supp. 
1986). Few jurisdictions recognize this concept, however.



8

hearings,20 both state and federal legislatures agreed to 
give constitutional significance to age 18 as the time 
when young people should first be permitted to partici­
pate in the most basic civic responsibility of adults in our 
democracy. Eighteen also is the minimum age at which 
a citizen may be drafted into the armed services as well 
as the minimum age at which a person may enlist without 
parental consent. 50 U.S.C. app. § 454(a), (c) (1981).

In most states and for most purposes, a “minor” means 
one below age 18:

• Forty-four jurisdictions set age 18 as the age 
of majority; two jurisdictions set the age at 21, 
three at 19, and two do not set a uniform age 
of majority. See Appendix A.

• Forty-three jurisdictions require jurors to be 18 
years or older, while three require jurors to be 
at least 19 years and five require jurors to be at 
least 21. See Appendix B.

• In fifty jurisdictions, both parties must be at 
least 18 years old to marry without parental 
consent. In one jurisdiction, both parties must 
be at least 21 years old. See Appendix C.

• Thirty-seven jurisdictions establish 18 (unless the 
minor is emancipated) as the age of consent for 
all forms of non-emergency medical treatment; 
one jurisdiction puts the age at 17, one jurisdic­
tion puts the age at 16, one sets the age at 15, 
one jurisdiction puts the age at 14, two permit 
treatment if the minor is able to understand the 
decision, and eight jurisdictions have no legisla­
tion in this area. See Appendix D.

20 See Lowering the Voting Age to 18: Hearings Before the 
Subcomm. on Constitutional Amendments of the Sen. Comm, on the 
Judiciary, 91st Cong., 2d Sess. (1970) ; S. Rep. No. 92-26, 92d Cong., 
1st Sess. (1971) ; H.R. Rep. No. 92-37, 92d Cong., 1st Sess. (1971).



9
• Thirty-three jurisdictions require a person to 

be 18 to receive a driver’s license without par­
ental consent; four jurisdictions set the age at 
17, while fourteen set it at 16. See Appendix E.

• In forty jurisdictions, a person must be at least 
18 to purchase pornographic materials; six juris­
dictions set the age at 17, two jurisdictions set 
it at 16, one sets it at 19, one has simply out­
lawed obscenity by statute, and one jurisdiction 
has no legislation in this area. See Appendix F.

• Of the thirty-nine jurisdictions which permit 
gambling, thirty-one set the minimum age at 18, 
four set it at 21, one sets it at 19, one at 17, 
and two at 16. See Appendix G.

• Of the twenty-three jurisdictions which set a 
minimum age for admission to pool halls, nine­
teen jurisdictions put the age at 18, two set 
the age at 16, while one jurisdiction puts the 
age at 21, and one puts it at 19. See Appendix 
H.

• Of the thirty-one jurisdictions which set a mini­
mum age for the right to pawn property, or to 
sell to junk or precious metals dealers, twenty- 
eight set the age at 18, while three set the age 
at 16. See Appendix I.

• In twenty-five jurisdictions, a person must be 
at least 18 years old to work in a hazardous 
occupation. One jurisdiction puts the age at 17, 
twenty-two jurisdictions set the age at 16, and 
three put it at 14. See Appendix J.

• Many localities have juvenile curfew ordi­
nances.21 The “ most common upper age limit”

21 A  1957 study revealed that more than 50% of all cities with 
populations of greater than 100,000 had juvenile curfew ordinances 
on the books. Note, Curfew Ordinances and the Control of Noc­
turnal Juvenile Crime, 107 U. Pa. L. Rev. 66, 66-68 & n.5 (1958). 
A more recent commentator observed that “thousands of cities” 
have had such ordinances for “a long time.” F. Zimring, The 
Changing Legal World of Adolescence 13 (1982). The District of 
Columbia is the most recent jurisdiction to consider such an ordi-



10
is 18. Comment, Juvenile Curfew Ordinances 
and the Constitution, 76 Mich. L. Rev. 109, 140 
(1977).

Contemporary attitudes toward minors are reflected 
further in the development of juvenile justice systems. 
“Juvenile courts exist because Americans admit to a 
fundamental difference between children and adults.” 
Institute of Judicial Administration/American Bar As­
sociation, Juvenile Justice Standards, Standards Relating 
to Transfer Between Courts 1 (1980). Every state has a 
comprehensive juvenile court system, Kent v. United 
States, 383 U.S. 541, 554 n.19 (1966), the principal pur­
pose of which is to rehabilitate* 22 and the premise of which 
is that minors are not fully responsible for their offenses 
and therefore should be treated more benignly than their 
adult counterparts. See McKeiver v. Pennsylvania, 403 
U.S. 528, 551-52 (1971) (White, J., concurring) ; Insti­
tute of Judicial Administration/American Bar Associa­
tion, Juvenile Standards, Standards Relating to Transfer

nance; the proposed D.C. law would set the age at 18. LaFraniere, 
Minors’ Entertainment Curfew Sought in D.C., Washington Post, 
May 6, 1987, at Cl.

22 To be sure, the “fond and idealistic hopes of the juvenile court 
proponents and early reformers of three generations ago have not 
been realized.” McKeiver v. Pennsylvania, 403 U.S. 528, 543-44 
(1971); see also In re Winship, 397 U.S. 358 (1970). But the 
disappointments have turned more on “the availability of resources, 
on the interest and commitment of the public, on the willingness to 
learn, and on understanding as to cause and effect,” McKeiver, 
403 U.S. at 547, rather than on fundamental flaws in the juvenile 
court philosophy. The Court’s cases, such as McKeiver and 
Winship, confirm that virtually none of “ [t]he serious critics 
of the juvenile court experiment . . . question the initial decision 
that adolescents ought to be handled in a legal process separate 
from adults. The battle is over the treatment of adolescents within 
the separate process.” Handler, The Juvenile Court and the Ad­
versary System: Problems of Function and Form, 1965 Wis. L. Rev. 
7, 8 ; see also President’s Commission on Law Enforcement and 
Administration of Justice, Task Force Report: Juvenile Delin­
quency and Youth Crime 9 (1967) (quoted in McKeiver v. Penn­
sylvania, 403 U.S. 528, 546 n.6 (1971)).



11
Between Courts 1 (1980) ; The Juvenile Court and Seri­
ous Offenders, 35 Juv. & Family Ct. J. (Preamble) (Sum­
mer 1984). In particular, the legislation establishing 
juvenile court jurisdiction supports the proposition that 
age 18 is the relevant cut-off point between childhood 
and adult responsibilities. Thirty-seven states and the 
District of Columbia designate 18 years as the appro­
priate maximum age for juvenile court jurisdiction; one 
state sets the age at 19, eight set the age at 17, and 
four set the age at 16. S. Davis, Rights of Juveniles: 
The Juvenile Justice System, App. B (1986); accord Na­
tional Institute for Juvenile Justice and Delinquency, U.S. 
Department of Justice, Major Issues in Juvenile Justice 
Information and Training, Youth in Adult Courts: Be­
tween Two Worlds 44, 86 n.2 (1982). Most model stand­
ards reflect the judgment of the vast majority of juris­
dictions which set age 18 as the boundary of juvenile 
courts.23 The Institute of Judicial Administration and the 
American Bar Association, for example, proposed that the 
“ eighteenth birthday should define an adult for the pur­
poses of court jurisdiction” because the “ eighteenth birth­

23 United States Department of Health, Education and Welfare, 
Welfare Administration, Children’s Bureau, Standards For Juve­
nile 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 Com­
missioners on Uniform State Laws, Uniform Juvenile Court Act 
of 1968, Section 2 .1(i) (1979) (18 years); United States Depart­
ment of Justice, National Institute for Juvenile Justice and De­
linquency Prevention, Working Papers of the National Task Force 
to Develop Standards and Goals for Juvenile Justice and Delin­
quency Prevention, Jurisdiction— Delinquency, Vol. IV, at 10-11 
(1977) (18 years) ; Institute of Judicial Administration/American 
Bar Association, Juvenile Justice Standards, Standards Relating to 
Transfer Between Courts, Standard § 1.1 A  and Commentary (1980) 
(18 years) ; Institute of Judicial Administration/American Bar 
Association, Juvenile Justice Standards, Standards Relating to 
Juvenile Delinquency and Sanctions, Standard 2.1 and Commentary 
(1980) (18 years) ; Twentieth Century Fund Task Force on Sen­
tencing Policy toward Young Offenders, Confronting Youth Crime 
9 (1978) (18 years).



12

day signals the achievement of majority for many legal 
purposes. The twenty-sixth amendment to the United 
States Constitution establishes a constitutional right to 
vote in federal elections at that age. This near consensus 
among the states and the federal government argues 
compellingly that juvenile court jurisdiction should end 
at eighteen.”  Standards Relating to Transfer Between 
Courts, supra, Commentary to Standard 1.1 A.24

The limitation of eligibility for the death penalty to 
those eighteen years or older at the time of the offense 
is supported by the American Bar Association, the Amer­
ican Law Institute’s Model Penal Code and the National 
Commission on Reform of Federal Criminal Laws. The 
ABA passed a resolution in 1983 opposing “ the imposi­

24 We recognize that while every state and the District of Colum­
bia has a juvenile justice system, most jurisdictions also have 
mechanisms permitting transfer of otherwise juvenile cases into 
the adult criminal justice system. A t least three states— New York, 
Nebraska and Arkansas— do not provide for waiver of jurisdiction. 
S. Davis, supra at 4-1. Moreover, the broad consensus of the 38 
jurisdictions that recognize age 18 as the general limit to juvenile 
court jurisdiction demonstrates that our society recognizes age 18 
as a crucial watershed in an individual’s development. Whatever 
courts may be chosen to try a juvenile under 18 charged with 
murder by operation of transfer provisions, our evolving standards 
of decency forbid execution of such an offender.

This conclusion is consistent with the rationale underlying trans­
fer provisions: namely, there are certain juveniles who will require 
punishment or treatment beyond the age of eighteen, the jurisdic­
tional limitations for most juvenile courts. By permitting transfer 
of these juveniles to the adult system, these courts gain jurisdiction 
to ensure that the penal system will have sufficient time both to 
exact the necessary punishment and to attempt rehabilitation. 
Furthermore, the decision to transfer a juvenile into the adult court 
system does not turn on questions of individualization and crimi­
nal responsibility, both constitutionally indispensable in deciding 
whether to impose the death penalty. Transfer and capital sentenc­
ing simply ask different questions. Comment, Capital Punishment 
for Minors: An Eighth Amendment Analysis, 74 J. Crim. L. & 
Criminology 1471, 1499-1501 (1983).



13

tion of capital punishment upon any person for any of­
fense committed while under the age of eighteen.”  See 
American Bar Association Report No. 117A, approved 
August 1983; see also Streib, The Eighth Amendment 
and Capital Punishment of Juveniles, 34 Clev. St. L. Rev. 
363, 388 (1987). This resolution is especially significant 
because it is the first time in its history that the ABA 
has taken a formal position on any aspect of capital pun­
ishment. The American Law Institute’s Model Penal Code 
has, since 1962, contained a recommendation that the 
death penalty not be imposed on offenders below age 
eighteen. See American Law Institute, Model Penal Code 
§ 210.6(1) (d) (Proposed Official Draft 1962). This view 
was reaffirmed by revisers of the Code in 1980, despite 
suggestions that the age be lowered or that youth merely 
be considered as a mitigating circumstance. See Ameri­
can Law Institute, Model Penal Code § 210.6, Comment 
at 133 (Official Draft and Revised Comments 1980). The 
National Commission on Reform of Federal Criminal 
Laws also took the position that 18 ought to be the mini­
mum age. See National Commission on Reform of Fed­
eral Criminal Laws, Final Report of the New Federal 
Code § 3603 (1971).

The domestic legislative evidence that age 18 is the 
appropriate boundary between juvenile and adult respon­
sibility coincides with international law. Although in­
complete, “ [t]he available evidence of contemporary state 
practice in the application of the death penalty seems to 
establish a remarkably consistent adherence to the pro­
hibition on execution of juvenile offenders in all regions 
and political systems.” Hartman, “ Unusual Punish­
ment: The Domestic Effects of International Norms Re­
stricting the Application of the Death Penalty, 52 U. Cin. 
L. Rev. 655, 666 (1983). Of the 164 countries for which 
data were available, 122 imposed the death penalty. Sig­
nificantly, of these 122 countries, 45 had statutory pro­
visions recognizing youth as exempt from the death pen­



14

alty: 29 nations set the minimum age at 18, one sets 
the age at 21, three at 20, five at 16, and five prohibited 
the execution of “minors” while two others prohibited the 
execution of “young people.” Id. at 666-67 n.44. The 
significance of these figures is not so much that nations 
set a minimum age, but that two-thirds of those which 
did set the age at 18. Equally significant, of 81 nations 
which were reported to have actually executed persons in 
the period between 1973 and 1982, only two states offi­
cially reported executions of juveniles. Id. Out of the 
thousands of executions recorded by Amnesty Interna­
tional throughout the world between January 1980 and 
May 1986, only eight in four countries were reported to 
have been of persons who were under age 18 at the 
time of the crime; three of these eight executions occurred 
in the United States. See Amnesty International, United 
States of America: The Death Penalty 74 (1987).25 An 
earlier study in 1965 found that out of 95 countries re­
porting, 61 set age 18 as the minimum age for capital 
punishment. See Patrick, The Status of Capital Punish­
ment: A World Perspective, 56 J. Crim. L., Criminology, 
& P.S. 397, 398-404 (1965). Reports of the Secretary 
General of the United Nations confirm that “ the great 
majority of Member States report never condemning to 
death persons under 18 years of age.”  See United Na­
tions, Economic and Social Council, Report of the Secre­
tary General, Capital Punishment 17 (1973). It is tell­
ing that the 36 condemned juveniles on America’s death 
row could not have been sentenced to death if they had 
been convicted in the Soviet Union, China, Iran, Iraq, 
or South Africa.

The policy of the United States has also reflected these 
international norms. In 1977, the United States became

25 Even if executions of juveniles abroad are underreported, these 
numbers remain compelling: A nation’s unwillingness to admit 
execution of minors is itself evidence of a norm against that 
practice.



15

a signatory to two international human rights treaties 
that prohibit execution for crimes committed before age 
18. The International Covenant on Civil and Political 
Rights, which has been ratified by 81 nations and signed 
by another nine nations, provides that death “ shall not 
be imposed for crimes committed by persons below eight­
een years.” See Multilateral Treaties Deposited With 
the Secretary General of the U.N., at 124, U.N. Doc. 
ST/LEG/Ser.E/3 (1985). Similarly, the American Con­
vention on Human Rights, ratified by 19 American nations 
and signed by an additional three countries, provides that 
capital punishment “ shall not be imposed upon persons 
who, at the time the crime was committed, were under 
18 years of age.”  See Handbook of Existing Rules Per­
taining to Human Rights in the Inter-American System, 
OEA/Ser.L/V/11.65, Doc. 6, at 63 (July 1, 1985). Presi­
dent Carter signed both treaties in 1977. The Senate has 
not yet ratified either covenant. Based on the policies 
embedded in these treaties and other materials, the Inter- 
American Commission on Human Rights recently found 
an emerging— although not yet extant— norm of custom­
ary international law establishing 18 to be the minimum 
age for imposition of the death penalty. See Resolution 
N, Inter-American Commission on Human Rights, Organ­
ization of American States, OEA/Ser.L/V/11.69, Doc. 17, 
at 38 (March 27, 1987).

The laws and policies discussed in this section reflect 
an almost universal judgment that adolescents ought to be 
treated differently than adults. There generally are no 
exceptions to that judgment. Public officials do not con­
sider requests by especially mature adolescents to allow 
them to vote, serve as jurors, or drink alcoholic beverages. 
As a society, we treat those under age 18 as categorically 
different from adults.26 These lines reflect clear distinc­

20 If there is any other arguable contender to age 18, it must be 
age 21. In 1984 Congress overwhelmingly passed the National 
Minimum Drinking Age Act withholding federal highway funds



16

tions between children and adults, distinctions that re­
quire this Court to draw the line at age 18 for the impo­
sition of the death penalty.

B. The Reasons for the Boundary Line: Adolescents Lack 
the Maturity, Experience, Moral Judgment and Sophis­
tication of Adults

The various legal disabilities discussed above are bot­
tomed on the common sense and empirically supportable 
assumption that minors lack the maturity, experience, 
sophistication and judgment necessary to make im­
portant decisions. Hafen, Children’s Liberation and the 
New Egalitarianism: Some Reservations About Aban­
doning Youth to Their “Rights,”  1976 B.Y.U. L. Rev. 
605, 644-50. That assumption is what these legal dis­
abilities are all about: “ Children, by definition, are not

from states that failed to raise their drinking age to 21. The 
House of Representatives agreed to the measure by unanimous 
consent. See 130 Cong. Rec. H7220-H7223 (daily ed. June 27, 
1984) ; 130 Cong. Rec. H5395-H5407 (daily ed. June 7, 1984). The 
focus of the Senate debate was whether teenagers should be singled 
out for special treatment. 129 Cong. Rec. S8243 (daily ed. June 26, 
1984) (remarks of Sen. Chafee) ; id. at S8246 (remarks of Sen. 
Byrd) ; id. at S8231 (remarks of Sen. Exon) ; id. at S8209 (re­
marks of Sen. Lautenberg) ; id. at S8212 (remarks of Sen. Pell) ; 
id. at S8214 (remarks of Sen. Specter) ; id. at S8237-38 (remarks 
of Sen. Durenberger) ; id. at S8210; 20 Weekly Comp., Pres. Doc. 
1036 (July 17, 1984).

We recognize that the constitutionality of this legislation is a 
matter presently under plenary consideration by the Court in South 
Dakota v. Dole, 107 S. Ct. 869 (1987) (order granting certiorari). 
The outcome of Dole will not affect our point here: The ultimate 
validity or invalidity of the statute does not minimize the impor­
tance of the congressional recognition that teenagers are particu­
larly vulnerable to exercising poor judgment and need special pro­
tections. Further, no party to the Dole litigation seems to dispute 
that teenagers need special protections. Brief of Petitioner at 
19, 62, 68; Brief of Amici Curiae, National Beer Wholesalers’ 
Association and 46 State Beer, Wine and Distilled Spirits Associa­
tions in Support of Petitioner, at 17, South Dakota v. Dole, 
No. 86-260.



17

assumed to have the capacity to take care of themselves.”  
Scholl v. Martin, 467 U.S. 253, 265 (1984). For exam­
ple, in Oregon v. Mitchell, the states sought to “ justify 
exclusion of 18- to 21-year-olds from the voting rolls 
solely on the basis of the states’ interests in promoting 
intelligent and responsible exercise of the franchise.”  
400 U.S. 112, 243 (1970) (Brennan, White & Marshall, 
JJ., dissenting).

The Court has long “ assume [d] that juvenile offenders 
constitutionally may be treated differently from adults,” 
Bellotti v. Baird, 443 U.S. 622, 635 (1979), and has long 
recognized that “ [cjhildren have a very special place in 
life which law should reflect. Legal theories and their 
phrasing in other cases readily lead to fallacious reason­
ing if uncritically transferred to determination of a 
State’s duty towards children.”  Eddings, 455 U.S. at 
116 n.12 (quoting May v. Anderson, 345 U.S. 528, 536 
(1953) (Frankfurter, J., concurring)). The Court has 
often expressed the rationale underlying this distinction, 
explaining that “during the formative years of childhood 
and adolescence, minors often lack the experience, per­
spective, and judgment to recognize and avoid choices 
that could be detrimental to them.”  Bellotti, 443 U.S. 
at 635; see also H. L. v. Matheson, 450 US 398 409-11 
(1981).

fYJouth is more than a chronological fact. It is a 
time and condition of life when a person may be most 
susceptible to influence and to psychological damage. 
Our history is replete with laws and judicial recogni­
tion that minors, especially in their earlier years, 
generally are less mature and responsible than adults.

Eddings, 455 U.S. at 115-16 (footnote omitted) ; see also 
Skipper v. South Carolina, 106 S. Ct. 1669, 1675 (1986) 
(Powell, J., concurring) ; New York v. Ferber, 458 U.S. 
at 776 (Brennan & Marshall, JJ., concurring) (noting



18

“ the particular vulnerability of children” ) ; Parham v. 
J.R., 442 U.S. 584, 603 (1979) (“ Most children, even in 
adolescence, simply are not able to make sound judg­
ments concerning many decisions” ) ; Ginsberg v. New 
York, 390 U.S. 629, 649-50 (1968) (Stewart, J., con­
curring) (“ a child . . .  is not possessed of that full ca­
pacity for individual choice which is the presupposition 
of First Amendment guarantees” ) (footnote omitted).

[A] dolescents, particularly in the early and middle 
teen years, are more vulnerable, more impulsive, and 
less self-disciplined than adults. Crimes committed 
by youths may be just as harmful to victims as those 
committed by older persons, but they deserve less 
punishment because adolescents may have less capac­
ity to control their conduct and to think in long- 
range terms than adults. Moreover, youth crime as 
such is not exclusively the offender’s fault; offenses 
by the young also represent a failure of family, 
school, and the social system, which share responsi­
bility for the development of America’s youth.

Eddings, 455 U.S. at 116 n .ll (quoting Twentieth Cen­
tury Fund Task Force on Sentencing Policy Toward 
Young Offenders, Confronting Youth Cmme 7 (1978)); 
see also Skijyper v. South Carolina, 106 S. Ct. at 1675 
(Powell, J., concurring) ; Haley v. Ohio, 332 U.S. 596, 
599 (1948) ; Gallegos v. Colorado, 370 U.S. 49, 54 (1962).

“ [A ]s any parent knows, children at certain ages are 
inclined to test the outer boundaries of acceptable con­
duct . . . .”  T.L.O., 469 U.S. at 352 (Blackmun, J., con­
curring). The Court has recognized the “period of great 
instability which the crisis of adolescence produces.” 
Haley, 332 U.S. at 599.

During the “crisis of adolescence”  noted in Haley, 
minors are less mature in their ability to make sound 
judgments and are less able to control their conduct and 
to recognize the consequences of their acts. Adolescence



19

is a time27 when young persons frequently are struggling 
to arrive at a definition of their own identity; adolescents 
are particularly likely to rebel against adult authority 
and to seek affirmation by their peers. E. Erickson, 
Childhood and Society 261-63 (2d ed. 1963). The teen 
years are “ a period of experiment, risktaking and bra­
vado. Some criminal activity is part of the patterns of 
almost all youth subcultures.”  Twentieth Century Fund 
Task Force, supra, at 3. The adolescent’s intellectual 
capability to consider and to choose from the realm of 
possibilities in a comprehensive fashion emerges only in 
late adolescence and early adulthood. E. Peel, The Nature 
of Adolescent Judgment 153 (1971). Moral character is 
to a large degree a product of the maturation process. 
Kohlberg, Development of Moral Character and Moral 
Ideology, in Review of Child Development Research 383, 
409 (M. Hoffman & L. Hoffman eds. 1964) ; Rest, Davi­
son & Robbins, Age Trends in Judging Moral Issues, 
49 Child Development 263 (1978). The ability to make 
moral judgments depends, at least in part, on broader 
factors of social experience. Most adolescents simply do 
not have the breadth and depth of experience which are 
essential to making sound judgments and to understand­
ing the long-range consequences of their decisions.

Many adolescents possess a “ profound conviction of their 
own omnipotence and immortality. Thus many adolescents 
may appear to be attempting suicide, but they do not 
really believe that death will occur.” Miller, Adolescent 
Suicide: Etiology and Treatment, in Adolescent Psychia­
try 327, 329 (S. Feinstein, J. Looney, A. Schwartzberg 
& A. Sorosky eds. 1981) ; see also Hostler, The Develop-

27 Adolescence lasts roughly from age 12 to age 19. Gordon, The 
Tattered Cloak of Immortality, in Adolescence and Death 12, 17-19 
(C. Coor & J. McNeil eds. 1986).



20
merit of the Child's Concept of Death, in The Child and 
Death 19 (0. Sahler ed. 1978) ,28

For this reason, threatening a child with death does 
not have the same impact as threatening an adult with 
death. “ [I]mmature minors often lack the ability to make 
fully informed choices that take account of both immedi­
ate and long-range consequences . . . Bellotti, 443 
U.S. at 640-41. Adolescents live for the moment, for “ an 
intense present,”  with little thought of the future con­
sequences of their actions. Kasterbaum, Time and Death 
in Adolescence, in The Meaning of Death 99, 104 (H. 
Feifel ed. 1959). The defiant attitudes and risk-taking 
behaviors of some adolescents are related to their “ devel­
opmental state of defiance about danger and death.” 
Fredlund, Children and Death from the School Setting, 
47 J. School Health 533, 535 (1977). They typically have 
not learned to accept the finality of death. Hostler, The 
Development of the Child's Concept of Death, in The 
Child and Death (0. Sahler ed. 1978). Adolescents tend 
to view death as a remote possibility; old people die, not 
teenagers. “ Risk-taking with body safety is common in 
the adolescent years, through sky diving, car racing, ex­
cessive use of drugs and alcoholic beverages.”  Gordon, 
supra, at 27. Such “ chance games”  are played by ado­
lescents “ out of their own sense of omnipotence.”  Miller, 
supra, at 329.

Further, most adolescents grow up. “ For most ado­
lescents, age alone is the cure of criminality.” F. Zim- 
ring, Background Paper, in Twentieth Century Fund 
Task Force on Sentencing Policy Toward Young Offend­
ers, supra, at 37; J. Wilson & R. Herrnstein, Crime and

28 This may help explain a recent rash of teenage suicides that 
has focused national attention on the issue. See, e.g., 2 Illinois 
Suicides Similar to New Jersey Teen-Agers, Washington Post, 
March 14, 1987, at A3. Suicide is the third leading cause of death 
among teenagers. Adler & Dolcini, Psychological Issues and Abor­
tion for Adolescents, in Adolescent Abortion 84 (G. Melton ed 
1986).



21

Human Nature 144 (1985). Youth is a “ time of intense 
and unfulfilled passions, leading to crimes for goods and 
pleasures that older people either crave less or can enjoy 
legally.” Id. at 145. Simply stated, an adult is likely 
to have a lower propensity for crime than a youngster 
because the adult is older. “Age, like gender, resists ex­
planation because it is so robust a variable. None of 
the correlates of age, such as employment, peers, or fam­
ily circumstances, explains crime as well as age itself 
Id. (footnotes and reference omitted) (emphasis added).29

The legislative judgment, nearly universal among the 
states, that society should treat adolescents and adults 
differently, and the developmental differences upon which 
that judgment is based, compel the conclusion that ado­
lescents should be spared from the death penalty, at 
least until they reach age 18.

C. The Reasons for Treating Children Differently From 
Adults Apply With Special Force Here: The Develop­
mental Differences Between Adolescents and Adults 
Diminish the State’s Interest in Inflicting the Death 
Penalty on Minors

The “ Constitution contemplates that in the end [the 
Court’s] own judgment will be brought to bear on the 
question of the acceptability of the death penalty under 
the Eighth Amendment.” Coker, 433 U.S. at 597; ac­
cord Enmund, 458 U.S. at 797; Gregg v. Georgia, 428 
U.S. 153, 182-83 (1976). This independent judgment is

29 Statistics suggest that as people move from the turbulence of 
adolescence to the calmer period of the early twenties, they commit 
fewer crimes, whether or not they were apprehended or participated 
in a rehabilitation program. See Office of Juvenile Justice and 
Delinquency Prevention, U.S. Dept, of Justice, Assessing the Rela­
tionship of Adult Criminal Careers to Juvenile Careers: A Sum­
mary 4 (1982) ; cf. Federal Bureau of Investigation, U.S. Dept, of 
Justice, Crime in the United States: 1978, 194-96 (1979) ; Zimring, 
American Youth Violence: Issues and Trends, in Crime and Jus­
tice: An Annual Review of Research 67 (N . Morris & M. Tonry eds. 
1979) (rates of many kinds of criminality peak in mid-adolescence).



22
informed by the twin penological justifications for the 
death penalty: general deterrence and retribution. Tison 
v. Arizona, 55 U.S.L.W. at 4499-500; Skipper v. South 
Carolina, 106 S. Ct. at 1675-76 (Powell, J., concurring) ; 
Enmund, 458 U.S. at 798-99; Gregg, 428 U.S. at 183-87. 
Preclusion of juvenile executions would undermine nei­
ther of these goals.

1. G en era l D eter ren c e

The “ death penalty has little deterrent force against 
defendants who have reduced capacity for considered 
choice.”  Skipper, 106 S. Ct. at 1675 (Powell, J., concur­
ring). The death penalty may be expected to deter only 
those who engage in a “ cold calculus that precedes the 
decision to act,”  those who “ carefully contemplate[ ] ” 
their crimes. Gregg, 428 U.S. at 186; see also Fisher v. 
United States, 328 U.S. 463, 484 (1946) (Frankfurter, 
J., dissenting) ; W. Bowers, Legal Homicide 272 (1984). 
“ The socialization processes, which include the internal­
ization of a society’s moral norms and prohibitions, un­
doubtedly play a role in general deterrence.”  Gale, Retri­
bution, Punishment, and Death, 18 U.C. Davis L. Rev. 
973,995 (1985) (footnote omitted).

Amici have demonstrated above that with adolescents 
the socialization process is as yet incomplete; for this 
reason, capital punishment will not likely deter other 
minors from committing crimes. Adolescents are less 
likely than adults to calculate rationally; this, indeed, is 
the premise underlying the states’ guardianship and pro­
tection of minors. It is unlikely that cold, rational calcu­
lation is involved when juveniles commit crimes. See 
C. Bartollas, Juvenile Delinquency 102 (1985). Our cul­
ture assumes for countless other purposes that minors, 
prior to acting, do not engage in the sort of responsible 
risk-benefit analysis that lies at the core of the deter­
rence theory. And when adolescents do calculate, the fear 
of death will not be given its fair measure. Adolescents 
have not learned to accept death’s finality.



23

Moreover, execution of minors will fail to deter the 
general population from committing crimes. Potential 
murderers are most likely to be deterred by the execution 
of one with whom the potential killer can identify; put 
another way, execution of a person who is particularly 
distinguishable from the general population will not serve 
to deter members of the general population. Cf. A. Gold­
stein, The Insanity Defense 13 (1967) ; Liebman & Shep­
hard, Guiding Capital Sentencing Discretion Beyond the 
“Boiler Plate” : Mental Disorder as a Mitigating Factor, 
66 Geo. L.J. 757, 813-17 (1978). Nor will exclusion of 
minors from execution abate the deterrent force of the 
death penalty for adults. Finally, because juvenile execu­
tions are so rare, their preclusion would have little im­
pact on the deterrence of the population at large. See 
generally Comment, Capital Punishment for Minors: An 
Eighth Amendment Analysis, 74 J. Crim. L. & Crim­
inology 1471, 1510-13 (1983).

2. R etrib u tio n

In addition to deterrence, the Court has said that retri­
bution— the expression of society’s outrage at particularly 
offensive conduct— remains a legitimate penological goal 
of capital punishment. Spaziano v. Florida, 468 U.S. 
447, 461-62 (1984) ; Enmund, 458 U.S. at 800-01; Gregg, 
428 U.S. at 183. But such outrage is tempered when the 
defendant is an adolescent: Juries, the representatives 
of the community whose outrage is being expressed by 
death sentences, seldom vote to condemn teenagers.

The actual practice of sentencing minors to die, and 
of actually executing them, has declined to a remarkably 
low level. As of December, 1983, only thirty-eight (2.9%) 
of the 1,289 persons on death row were under age eight­
een at the time of their crimes.30 By July of 1986, the

30 Streib, supra, 34 Clev. St. L. Rev. at 384. We assume that all 
of these cases involved jury sentences of death. Although four states 
exclude the jury from the capital sentencing process, Spaziano, 468



24
number had dropped from thirty-eight to thirty-two, while 
the population of death row had increased by 500. Streib, 
supra, 34 Clev. St. L. Rev. at 384. Thus, while the 
death row population grew by 42% (from 1,250 to 
1,770), the juvenile death-row population decreased by 
16%.

Even more strikingly, only seven new juveniles were 
added to the death row population from December 1983 
to March 1986. Approximately 700 total death sentences 
were imposed during this period. Id. Accordingly, juve­
niles accounted for only 1% of the death sentences meted 
out during this two and one-half year period.

Review of intentional homicide data dramatically un­
derscores the fact that juries impose capital sentences on 
juveniles at a significantly lower rate than on adults. 
Approximately 9.2% of intentional homicides from 1973 
through 1983 were committed by persons under eighteen. 
Id.®1 In stark contrast to this 9.2% commission rate, only 
2% to 3% of all capital sentences imposed over this pe­
riod were imposed on juveniles. Id. at 387.

Most importantly, data compiled through March of 
1987 establish that the juvenile capital-sentencing rate 
has leveled off at a dramatically low level. Over the last 
five years, those under age eighteen have been sentenced 
to death as follows: 1982— 11; 1983— 9; 1984— 6; 1985 
— 3; 1986— 7. During this same period, the annual 
death-sentencing rate for adults has been approximately * 31

U.S. at 463-64 n.9, none of these states contributed to the present 
population of juvenile death row. The three states permitting judges 
to impose death notwithstanding a jury’s recommendation of life 
imprisonment— Alabama, Florida and Indiana— account for seven 
juvenile death sentences. It is not known whether the juries in 
these cases recommended life or death.

31 However, it is the 18 to 24 “age group— beyond the jurisdiction 
of almost all juvenile courts— that has the highest arrest rate for 
crimes of violence.” President’s Commission on Law Enforcement 
and Administration of Justice, The Challenge of Crime in a Free 
Society 56 (1967).



25

300 per year.®2 Juvenile death sentences are so rare that 
they are cruel and unusual “ in the same way that being 
struck by lightning is cruel and unusual.” Furman v. 
Georgia, 408 U.S. 238, 309 (1972) (Stewart, J., con­
curring) .

Some courts, upholding the constitutionality of execut­
ing minors, have focused upon legislative enactments in 
concluding that such executions do not offend our so­
ciety’s evolving standards of decency.32 33 However, statutes

32 Few death sentences translates into still fewer actual execu­
tions. A  20-year national moratorium on executing minors ended 
when Charles Rumbaugh was executed in 1985. Rumbaugh was 
17 years old at the time of the crime. Rumbaugh, however, as an 
adult and after a full evidentiary hearing on his competency to 
waive further legal action to save his life, volunteered for execu­
tion. Rumbaugh v. Procunier, 753 F.2d 395 (5th Cir.), cert, denied, 
473 U.S. 919 (1985). Early in 1986, Terry Roach became the first 
nonconsensual execution of a juvenile since 1964; Roach, however, 
did not allege in his first federal habeas corpus proceeding that 
execution of a juvenile per se violates the Constitution. Roach v. 
Martin, 757 F.2d 1463 (4th Cir.), cert, denied, 106 S. Ct. 185 
(1985). Similarly, Jay Pinkerton, executed later in 1986, appar­
ently raised the claim in a successor habeas petition. Thus, of the 
70 people executed in the post-Furman era, only three were under 
the age of 18 at the time of their crime, and one of the three volun­
teered for execution. Further, Rumbaugh and Pinkerton— who 
were seventeen years old at the time of their offenses— were exe­
cuted in Texas, where the maximum juvenile court age is 17. Tex. 
Penal Code Ann. § 8.07(d) (Vernon Supp. 1987).

33 See, e.g., Prejean v. Blackburn, 743 F.2d 1091, 1098-99 (5th 
Cir. 1984), modified on other grounds, 765 F.2d 482 (5th Cir. 
1985), petition for cert, filed, No. 85-5609; Trimble v. State, 300 
Md. 387, 478 A.2d 1143, 1158-64 (Md. 1984), cert, denied, 469 U.S. 
1230 (1985). In fact, legislative responses support age 18 as the 
minimum age for execution eligibility. As discussed infra, legisla­
tion places a variety of limitations upon minors, restrictions which 
evince a consensus that minors are less mature and responsible 
than adults.

As to capital punishment specifically, the legislative message is 
more mixed but still supportive of the notion that if an age must 
be chosen— and surely it must— then eighteen is the only principled



26

are not determinative, particularly since they have led 
to only a miniscule number of death sentences or execu­
tions. Death penalty legislation alone cannot reveal so­
ciety’s evolving standards of decency.

In the decade and a half since Furman v. Georgia, 
almost every current Justice has written or joined in 
opinions that look to the pattern of jury verdicts in sup­

line. Of the fifteen states that establish a minimum age for capital 
punishment, eleven set it at eighteen, three set it at seventeen, and 
one sets it at sixteen.

Further, the most recent legislative activity has been in the 
direction of setting 18 as the minimum age. Nebraska in 1982 set 
18 as its minimum age for execution; Colorado and Oregon did so 
in 1985; New Jersey did so in 1986. Neb. Rev. Stat. § 28-105.01 
(1985); Colo. Rev. Stat. § 16-11-103 (1986); Or. Rev. Stat. §161- 
620 (1985); N.J. Stat. Ann. §2 C : l l -3 f  (West 1986) (L. 1985, 
ch. 478, §1 , approved Jan. 17, 1986). In April 1987, Maryland 
became the latest state to set 18 as the minimum age for capital 
punishment. Barnes & Schmidt, Schaefer Praises Session As "Un­
usually Successful,”  Washington Post, April 14, 1987, at A7. The 
Governor was “struck by the fact that the decisive Senate votes 
came not from the newly-elected members of that Chamber, but 
from Senate veterans who had opposed an exemption for minors in 
previous years.” Letter from William Schaefer to Clayton Mitchell, 
Speaker, Maryland House of Delegates, April 7, 1987, at 1 (repro­
duced at Appendix K ). The Maryland House of Delegates, in 
putting the age at 18, reversed the Maryland Judiciary Committee, 
which had set the age at 16. Barnes, Death Penalty Exemption 
Advances, Washington Post, April 11, 1987, at B4. The 1987 ses­
sion of the Georgia General Assembly considered such a measure. 
Shipp, Restricting Use of Death Penalty is Long Overdue, Atlanta 
Journal— Constitution, January 4, 1987, at ID. The New Hampshire 
legislature recently re-codified and therefore reaffirmed its ex­
emption of minors from capital punishment. HB 106, Laws 1986, 
ch. 82:1 (effective Jan. 1, 1987) (codified as N.H. Rev. Stat. Ann. 
§ 630:5 (IX ) to (X III) (1986 Supp.)).

Finally, the recently proposed federal death penalty legislation 
was amended to provide that a sentence of death may not be 
imposed upon a person who was less than 18 years old at the time 
of the offense. Establishing Constitutional Procedures for the Im­
position of Capital Punishment: Report of the Committee on the 
Judiciary, 99th Cong., 2d Sess. 30 (1986).



27

port of a conclusion about the death penalty’s constitu­
tionality, either generally or for particular crimes,84

34 Members of the Court have reasoned that the “jury . . .  is a 
significant and reliable objective index of contemporary values 
because it is so directly involved,” Enmund, 458 U.S. at 795 (White, 
Brennan, Marshall, Blackmun & Stevens, JJ.) (quoting Gregg v. 
Georgia, 428 U.S. 153,181 (1976) (Stewart, Powell & Stevens, JJ .)) ; 
that “it is thus important to look at the sentencing decisions that 
juries have made in the course of assessing whether capital punish­
ment is an appropriate penalty for the crime being tried.” Coker, 
433 U.S. at 596 (White, Stewart, Blackmun & Stevens, JJ.). In 
Woodson v. North Carolina, 428 U.S. 280, 293 (1976), a plurality 
consisting of Justices Stewart, Powell and Stevens cited jury re­
fusal to convict in mandatory capital cases to support its conclu­
sion that the mandatory statutes did not reflect evolving standards 
of decency. In Lockett v. Ohio, 438 U.S. 586, 625 (1978), Justice 
White wrote, in concurrence, that the death penalty could not be 
used if the defendant did not intend the death of the victim, even 
though at the time “approximately half of the states [had] not 
legislatively foreclosed the possibility of imposing the death penalty 
upon those who did not intend to cause death” ; the reasoning of 
Justice White’s concurrence in Lockett was endorsed by the Court 
in Enmund v. Florida, with both the majority, see 458 U.S. at 795, 
and the dissent, see id. at 818-20 (O’Connor, J., joined by Burger, 
C.J., Powell & Rehnquist, JJ.), analyzing the behavior of capital 
juries. The majority in Enmund relied on statistics showing that 
despite these statutes, defendants in this category rarely were 
executed. Justice Brennan, in Furman, also relied on the gap 
between legislative authorization of capital punishment and the 
number of death penalties actually inflicted:

When an unusually severe punishment is authorized for wide- 
scale application but not, because of society’s refusal, inflicted 
save in a few instances, the inference is compelling that there 
is a deep-seated reluctance to inflict it.

Furman v. Georgia, 408 U.S. 238, 300 (1972) (Brennan, J., con­
curring) . In Coker v. Georgia, 433 U.S. at 596, a plurality consist­
ing of Justices Stewart, White, Blackmun and Stevens cited 
Gregg’s observation that the “jury . . .  is a significant and reliable 
objective index of contemporary values because it is so directly 
involved.” Justice Powell concurred in this reasoning insofar as it 
supported “the view that ordinarily death is a disproportionate 
punishment for the crime of raping an adult woman.” Coker, 
433 U.S. at 601.



28

Thus, the Court, while considering legislative judgments 
as one measure of society’s evolving standards of decency, 
still looks beyond those judgments to learn whether they 
are accurate. There is a good reason to do so:

Each lawmaker confronts capital punishment ab­
stractly. No life depends on her vote. Legislative re­
sponse tells us the degree to which we are willing 
to have laws permitting execution, but sentencing 
and execution tell us the degree to which we are will­
ing to carry them out. A statute, furthermore, is 
static. It remains until changed. As public opinion 
shifts, older statutes become less reliable indicators 
of current values. Forces influence legislators that 
do not affect jurors. A legislator may believe, for 
example, that death penalty proponents in his con­
stituency are more likely than its opponents to be 
single-issue voters or are more likely to organize 
against him, if he opposes capital punishment, than 
will opponents if he supports it. A constituency’s 
willingness to vote based on a single issue and its 
degree of organization likely influence a lawmaker’s 
decision and may skew the degree to which the pat­
tern of legislation reflects community sentiment. Of 
course, legislative action may accurately reflect com­
munity sentiment on the acceptability of the death 
penalty, either generally or in classes of cases. But 
without a pattern of jury response, we cannot know 
whether this is true or whether, instead, various po­
litical factors have combined to obscure the com­
munity view. The jury, “because it is so directly 
involved,” is needed to avoid guessing wrong.

Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 72-73 
(1980) (footnotes omitted).

It is no accident that even in an era in which the 
public perceives a significant increase in juvenile crime, 
juries almost never vote to execute teenagers. Lay jurors, 
given the task of expressing the common sense judgment 
of the community, recognize that adolescents are develop- 
mentally distinct from adults, that adolescents grow up,



29

and that young people are uniquely rehabilitable. Juries 
recognize that it is unrealistic and inhumane to treat 
young offenders as if they have fully mature judgment 
and control.

Or perhaps juries intuit that the philosophical prem­
ises of retribution fail when applied to minors. The 
morality of the anger that fuels the desire for retribu­
tion is based on the killer’s violation of the social com­
pact. Society has entrusted its citizens with rights, one 
of which is freedom, and the murderer has grossly abused 
that freedom. W. Berns, For Capital Punishment 155 
(1979). The fallacy of this retributive argument as it 
applies to minors is precisely that we do not entrust 
minors with such freedom.35 As discussed above, states 
do not trust their minors to vote, sit on juries or engage 
in a wide variety of adult activities.

The inequity of the death penalty for minors is per­
haps best captured by a vignette described in S. Get- 
tinger, Sentenced to Die (1979). The mother of a con­
demned 15-year-old was asked by prison officials for 
parental consent to emergency treatment for her son, 
should he need it. The mother observed: “ Now, isn’t
that ironic? . . . He’s old enough to be put to death, but 
he’s not old enough to get an aspirin without our con­
sent.” Id. at 150.

35 John Stuart Mill’s On Liberty set forth, in 1859, the classic 
antipaternalist position. J.S. Mill, On Liberty (Penguin Classics 
2d ed. 1986). Mill’s logic is utilitarian and argues for the absolute 
prohibition of state paternalism. Yet Mill found it “hardly neces­
sary to say that [his] doctrine is meant to apply only to human 
beings in the maturity of their faculties. We are not speaking of 
children or of young persons below the age which the law may fix 
as that of manhood or womanhood.” Id. at 69.



30

CONCLUSION
The Court should hold that execution of those who were 

younger than age 18 at the time of their offense violates 
the eighth and fourteenth amendments.

Respectfully submitted,

Of Counsel:
Patrick C. Joyce 
1650 Selwyn Ave., #18E 
Bronx, New York 10457 
(212) 731-3269

Date: May 14,1987

James E. Coleman, Jr. 
Michael A. Mello *
W ilmer, Cutler & Pickering 
2445 M Street, N.W. 
Washington, D.C. 20037-1420 
(202) 663-6000 
Attorneys for Amici Curiae
* Counsel of Record



la
APPENDIX A

Age of Majority

UNDER 18 OVER 
18 18

Cumulative Totals by Age— 50 States & D.C.

DU

2
Not Uniform

44

18

30

0 14 15 16 17
Age

3 2
rvvvujJVUUK&aa&a Bsssasa 
19 21



2a

A G E  OF M A J O R IT Y  *

State Age Citation
AL 19 Ala. Code § 26-1-1 (1986)
AK 18 Alaska Stat. § 25.20.010 (1983)
AZ 18 Ariz. Rev. Stat. Ann. § 1-215 (1974)
AR 18 Ark. Stat. Ann. § 57-103 (1985)
CA 18 Cal. Civil Code § 25.1 (West 1982)
CO 18 Colo. Rev. Stat. § 13-22-101 (1974)
CT 18 Conn. Gen. Stat. § 1-ld (Supp. 1986)
DL 18 Del. Code Ann. tit. 1, § 701 (1975)
DC 18 D.C. Code Ann. § 30-401 (1981)
FL 18 Fla. Stat. Ann. § 743.07 (West 1986)
GA 18 Ga. Code Ann. § 39-1-1 (1982)
HI 18 Haw. Rev. Stat. § 577-1 (1976)
ID 18 Idaho Code § 32-101 (1983)
IL 18 111. Ann. Stat. ch. 110i/2 para. 11-1 (Smith- 

Hurd Supp. 1986)
IN 18 Ind. Code Ann. § 34-1-67-1 (Burns Supp. 1980)
IA 18 Iowa Code Ann. § 599.1 (West 1981)
KS 18 Kan. Stat. Ann. § 38-101 (1986)
KY 18 Ky. Rev. Stat. Ann. § 2.015 (Michie/Bobbs- 

Merrill 1985)
LA 18 La. Civ. Code Ann. art. 37 (West 1987)
ME 18 Me. Rev. Stat. Ann. tit. 1, § 72 (1979)
MD 18 Md. Ann. Code art. 1, § 24 (1981)
MA 18 Mass. Gen. Laws Ann. ch. 4, § 7 Cl. fifty-first 

(West 1986)
M I 18 Mich. Comp. Laws Ann. § 722.52 (West Supp 

1986)
MN 18 Minn. Stat. Ann. § 645.451 (West Supp. 1987)
MS 21 Miss. Code Ann. § 1-3-27 (1972)
MO — Not Uniform
MT 18 Mont. Code Ann. § 41-1-101 (1985)
N E 19 Neb. Rev. Stat. § 38-101 (1984)

* Counsel gratefully acknowledges the valuable assistance of
Janice Mitnick, Margaret McCandless, Stephan Geisler, Robert
Taylor, Michael Ollen, Jonathan Graves and James Lee Buck in the
preparation of the Appendices to this brief.



3a

State Age Citation
NV 18 Nev. Rev. Stat. § 129.010 (1957)
NH 18 N.H. Rev. Stat. Ann. 21:44 (1985)
NJ 18 N.J. Stat. Ann. § 9 :17 B-3 (West 1976)
NM 18 N.M. Stat. Ann. § 28-6-1 (1983)
NY — Not Uniform
NC 18 N.C. Gen. Stat. § 48A-2 (1984)
ND 18 N.D. Cent. Code § 14-10-01 (1981)
OH 18 Ohio Rev. Code Ann. § 3109.01 (Baldwin 1983)
OK 18 Okla. Stat. Ann. tit. 15, § 13 (West 1983)
OR 18 Or. Rev. Stat. § 109-510 (1985)
PA 21 Pa. Stat. Ann. tit. 1-6, § 1991 (Purdon 1986)
RI 18 R.I. Gen. Laws § 15-12-1 (1981)
SC 18 S.C. Const, art. XVII, § 14
SD 18 S.D. Codified Laws Ann. § 26-1-1 (1984)
TN 18 Tenn. Code Ann. § 1-3-105 (1985)
TX 18 Tex. Fam. Code Ann. § 11.01 (1) (Vernon 1986)
UT 18 Utah Code Ann. § 15-2-1 (1986)
VT 18 Vt. Stat. Ann. tit. 1, § 173 (1985)
VA 18 Va. Code Ann. § 1-13.42 (1979)
WA 18 Wash. Rev. Code Ann. § 26.28.010 (1986)
WV 18 W. Va. Code § 2-2-10 (1979)
WI 18 Wis. Stat. Ann. § 990.01 (West 1985)
WY 19 Wyo. Stat. § 14-1-101 (1986)

Totals (50 States and D.C.)
Not

Age 18 19 21 Uniform

Number 44 3 2 2



lb
APPENDIX B

Right to Serve on Jury

Cumulative Totals by Age— 50 States & D.C.

5 0 --------------------- -------------------- -------------------------------------------
43

Age



2b

State A ge

A L 19
A K 18
A Z 18
A R 21
C A 18
CO 18
CT 18
D L 18
DC 18
F L 18
G A 18
H I 18
ID 18
IL 18

IN 18
IA 18
K S 18
K Y 18

L A 18
M E 18
M D 18
M A 18

M I 18

M N 18
M S 21
MO 21
M T 18
N E 19
N V 18
N H 18

RIGHT TO SERVE ON JURY 

Citation
Ala. Code § 12-16-60 (1986)
Alaska Stat. § 09.20.010 (1983)
Ariz. Rev. Stat. Ann. § 21-301 (1975)
Ark. Stat. Ann. § 39-101 (Supp. 1985)
Cal. Civ. Proc. § 198 (West 1982)
Colo. Rev. Stat. § 13-71-106 (Supp. 1986)
Conn. Gen. Stat. § 51-217 (1985)
Del. Code Ann. tit. 10, § 4504 (Supp. 1984)
D.C. Code Ann. § 11-1901 (1981)
Fla. Stat. Ann. § 40.01 (West Supp. 1987)
Ga. Code Ann. § 15-12-60 (1985)
Haw. Rev. Stat. § 612-4 (1976)
Idaho Code § 2-209 (Supp. 1986)
111. Stat. Ann. ch. 78, para. 2 (Smith-Hurd 

1987)
Ind. Code Ann. § 35-1-15-11 (Burns 1979) 
Iowa Code Ann. § 607.2 (West Supp. 1986) 
Kan. Stat. Ann. § 43-156 (1986)
Ky. Rev. Stat. Ann. § 29A.080 (Michie/Bobbs- 

Merrill 1985)
La. Code Crim. Proc. Ann. art. 401 (West 1987) 
Me. Rev. Stat. Ann. tit. 14, § 1211 (Supp. 1986) 
Md. Cts. & Jud. Proc. Code Ann. § 8-104 (1984) 
Mass. Gen. Laws Ann. ch. 234, § 1 (West 

1986) ; ch. 51, § 1 (West 1975)
Mich. Comp. Laws Ann. § 600.1304 (West 

1981)
Minn. Stat. Ann. § 593.41 (West 1987)
Miss. Code Ann. § 13-5-1 (1972)
Mo. Stat. Ann. § 494.010 (Vernon Supp. 1987) 
Mont. Code Ann. § 3-15-301 (1985)
Neb. Rev. Stat. § 25-1601 (1985)
Nev. Rev. Stat. § 6.010 (1957)
N.H. Rev. Stat. Ann. §§ 500-A:l to 500-A:2 

(1983)



3b

State A ge Citation
NJ 18 N.J. Stat. Ann. § 9-17B-1 (West Supp. 1986)
NM 21 N.M. Stat. Ann. § 38-5-1 (1978)
NY 18 N.Y. Jud. Law § 510 (McKinney Supp. 1987)
NC 18 N.C. Gen. Stat. § 9-3 (1986)
ND 18 N.D. Cent. Code § 27-09.1-08 (Supp. 1985)
OH 18 Ohio Rev. Code Ann. § 2313.42 (Baldwin 1984)
OK 18 Okla. Stat. Ann. tit. 38, § 28 (West Supp. 1987)
OR 18 Or. Rev. Stat. § 10.030 (c) (1985)
PA 18 Pa. Stat. Ann. tit. 42, § 4521 (Purdon 1981)
RI 18 R.I. Gen. Laws § 9-9-1 (Supp. 1984)
SC 18 S.C. Code Ann. § 14-7-140 (Law. Co-op. Supp. 

1986)
SD 18 S.D. Codified Laws Ann. § 16-13-10 (1986)
TN 18 Tenn. Code Ann. § 22-1-101 (1980)
TX 18 Tex. Gov’t Code Ann. § 62.102 (Vernon 1987)
UT 21 Utah Code Ann. § 78-46-8 (1977)
VT 18 Vt. Stat. Ann.—Administrative Orders and 

Rules: Qualification List, Selection and 
Summoning of All Jurors— Rule 25 (1986)

VA 18 Va. Code Ann. § 8.01-337 (1984)
WA 18 Wash. Rev. Code Ann. § 2.36.070 (Supp. 1987)
w v 18 W. Va. Code § 52-1-8 (Supp. 1986)
WI 18 Wis. Stat. Ann. § 756.01 (West 1981)
WY 19 Wyo. Stat. § 1-11-101 (West Supp. 1986)

Totals (50 States and D.C.)

Age 18 19 21

Number 43 3 5



lc
APPENDIX C

Right to Marry Without Parental Consent

UNDER 18 OVER 
18 18

Cumulative Totals by Age— 50 States & D.C.
50

18

w

;

10
0

14 15 16 17

Age

1

19 21



2c

R IG H T  TO M A R R Y  W IT H O U T  P A R E N T A L  C O N S E N T

State Age Citation

AL 18 Ala. Code § 80-1-5 (1983)
AK 18 Alaska Stat. § 25.05.171 (1983)
AZ 18 Ariz. Rev. Stat. Ann. § 25-102 (1976)
AR 18 Ark. Stat. Ann. § 55-102 (Supp. 1985)
CA 18 Cal. Civ. Code § 4101 (West 1983)
CO 18 Colo. Rev. Stat. § 14-2-106 (Supp. 1986)
CT 18 Conn. Gen. Stat. § 46b-30 (1986)
DL 18 Del. Code Ann. tit. 13, § 123 (1981)
DC 18 D.C. Code Ann. § 30-111 (1981)
FL 18 Fla. Stat. Ann. § 741.04 (1986)
GA 18 Ga. Code Ann. § 19-3-37 (1982)
HI 18 Haw. Rev. Stat. § 572-2 (1976)
ID 18 Idaho Code § 32-202 (1963)
IL 18 111. Ann. Stat. ch. 40, para. 203 (Smith-Hurd 

Supp.1986)
IN 18 Ind. Code Ann. § 31-7-1-6 (Burns Supp. 1986)
IA 18 Iowa Code Ann. § 595.2 (West 1981)
KS 18 Kan. Stat. Ann. § 23-106 (1981)
KY 18 Ky. Rev. Stat. Ann. § 402.210 (Michie/Bobbs- 

Merrill 1984)
LA 18 La. Civ. Code Ann. art. 97 (West 1952)
ME 18 Me. Rev. Stat. Ann. tit. 19, § 62 (1981)
MD 18 Md. Fam. Law Code Ann. § 2-301 (1984)
MA 18 Mass. Gen. Laws Ann. ch. 207, § 7 (West Supp. 

1986)
MI 18 Mich. Comp. Laws Ann. § 551.103 (West Supp. 

1986)
MN 18 Minn. Stat. Ann. § 517.02 (West Supp. 1987)
MS 21 Miss. Code Ann. § 93-1-5 (d) (Supp. 1986)
MO 18 Mo. Ann. Stat. § 451.090 (Vernon 1986)
MT 18 Mont. Code Ann. § 40-1-202 (1985)
NE 18 Neb. Rev. Stat. § 42-105 (1984)
NV 18 Nev. Rev. Stat. § 122.020 (1957)
NH 18 N.H. Rev. Stat. Ann. § 457:5 (1983)
NJ 18 N.J. Stat. Ann. § 9:17 B-l (West Supp. 1986)
NM 18 N.M. Stat. Ann. § 40-1-6 (1986)
N Y 18 N.Y. Dom. Rel. Law § 15 (McKinney Supp. 

1987)



3c

State
NC
ND
OH
OK
OR
PA

RI
SC
SD
TN
TX
UT
VT
VA
WA
WV
WI
WY
Totals

Age

Age Citation
18 N.C. Gen. Stat. § 51-2 (1984)
18 N.D. Cent. Code § 14-03-02 (1981)
18 Ohio Rev. Code Ann. § 3101.01 (Baldwin 1983)
18 Okla. Stat. Ann. tit. 43, § 3 (West 1979)
18 Or. Rev. Stat. § 106.060 (1985)
18 Pa. Stat. Ann. tit. 48, §1-5 (Purdon Supp. 

1986)
18 R.I. Gen. Laws § 15-2-11 (1981)
18 S.C. Code Ann. § 20-1-250 (Law. Co-op. 1985)
18 S.D. Codified Laws Ann. § 25-1-9 (1984)
18 Tenn. Code Ann. § 36-3-106 (1984)
18 Tex. Fam. Code Ann. § 1.51 (Vernon 1987)
18 Utah Code Ann. § 30-1-9 (1984)
18 Vt. Stat. Ann. tit. 18, § 5142 (Supp. 1986)
18 Va. Code Ann. § 20-49 (1983)
18 Wash. Rev. Code Ann. § 26.04.210 (1986)
18 W. Va. Code § 48-1-1 (1986)
18 Wis. Stat. Ann. § 765.02 (West 1981)
18 Wyo. Stat. § 20-1-102 (1977)
(50 States and D.C.)

18 21
Number 50 1



Id
APPENDIX D

Consent to All Forms of Medical Treatment

Cumulative Totals by Age— 50 States & O.C.

8
No Legislation

2
Minor Able to Understand

or

18

;°
10

1 1 1 1  

14 15 16 17

Age

19 21



2d

C O N S E N T  TO A L L  F O R M S OF M E D IC A L  T R E A T M E N T

State Age Citation
AL 14 Ala. Code § 22-8-4 (1984)
AK 18 Alaska Stat. § 09.65.100 (1983)
AZ 18 Ariz. Rev. Stat. Ann. § 44-132 (1967)
AR * Ark. Stat. Ann. § 82-363 (Supp. 1986)
CA 18 Cal. Civ. Code § 25.8 (West 1982)
CO 18 Colo. Rev. Stat. § 13-22-103 (Supp. 1986)
CT 18 Conn. Gen. Stat. Ann. § 46b-150d (1986)
DL 18 Del. Code Ann. tit. 13, § 707 (1981)
DC — No Legislation
FL 18 Fla. Stat. Ann. § 743.064 (West 1986)
GA 18 Ga. Code Ann. § 31-9-2 (1985)
HI 17 Haw. Rev. Stat. § 577A-2 (1976)
ID 18 Idaho Code § 39-3801 (1985)
IL 18 111. Ann. Stat. ch. I l l ,  para. 4501 (Smith-Hurd 

1978)
IN 18 Ind. Code Ann. § 16-8-3-1 (Burns 1973)
IA 18 Iowa Code Ann. § 147.137 (West Supp. 1986)
KS 18 Kan. Stat. Ann. § 38-122 (1986)
KY 18 Ky. Rev. Stat. Ann. § 216B.400 (Michie/Bobbs- 

Merrill 1982)
LA 18 La. Rev. Stat. Ann. § 40:1095 (West 1977)
ME 18 Me. Rev. Stat. Ann. tit. 32, § 3292 (Supp. 1986)
MD 18 Md. Health-Gen. Code Ann. § 20-102 (1982)
MA 18 Mass. Gen. Laws Ann. ch. 112, § 12F (West 

1983)
MI — No Legislation
M N 18 Minn. Stat. Ann. § 144.341 (West 1987)
MS * Miss. Code Ann. § 41-41-3 (Supp. 1986)
MO 18 Mo. Ann. Stat. § 431.061 (Vernon Supp. 1987)
M T 18 Mont. Code Ann. § 41-1-402 (1985)
NE — No Legislation
NV 18 Nev. Rev. Stat. § 129-030 (1957)
NH — No Legislation
NJ 18 N.J. Stat. Ann. § 9.-17B-1 (West Supp. 1986)
N M 18 N.M. Stat. Ann. § 24-10-1 (1986)

* M inor able to understand



3d

State Age Citation
NY 18 N.Y. Pub. Health Law § 2504 (McKinney 1985)
NC 18 N.C. Gen. Stat. § 90-21.1 (1985)
ND 18 N.D. Cent. Code § 14-10-17.1 (1981)
OH 18 Ohio Rev. Code Ann. § 2317.54 (Baldwin 1984)
OK 18 Okla. Stat. Ann. tit. 63, § 2602 (West 1984)
OR 15 Or. Rev. Stat. § 109.640 (1985)
PA 18 Pa. Stat. Ann. tit. 35, § 10101 (Purdon 1977)
RI 16 R.I. Gen. Laws § 23-4.6-1 (1985)
SC 18 S.C. Code Ann. § 20-7-280 (Law. Co-op. 1985)
SD 18 S.D. Codified Laws Ann. § 20-9-4.2 (Supp. 

1986)
TN 18 Tenn. Code Ann. §§ 63-6-220 to 63-6-223 (1985)
TX 18 Tex. Fam. Code Ann. § 35.03 (1986)
UT 18 Utah Code Ann. § 78-14-5 (1977)
VT — No Legislation
VA 18 Va. Code Ann. § 54-325.2 (1982)
WA 18 Wash. Rev. Code Ann. § 26.28.015 (1986)
WV — ■ No Legislation
WI — No Legislation
WY — No Legislation

Totals (50 States and D.C.)
M inor

Able to No
A ge 14 15 16 17 18 Understand Legislation

Number 1 1 1 1 37 2 8