High v. Zant Brief Amicus Curiae

    AMERICAN BAR ASSOCIATION 750 North Lake Shore Drive
Chicago, Illinois 60611 
{312)988-5000

MEMORANDUM

TO:

FROM:

RE:

DATE:

Members of the ABA Board of 
Executive Committee

Darryl L. DePriest, General

High v . Zant and Wilk ins v .

September 2 3, 1988

Governors

Counsel 

Missouri

Enclosed for your information is the final copy of 
the ABA amicus curiae brief filed in the following 
case:

High v. Zant and Wilkins v. Missouri, 
Nos. 87-5666 and 87-6026, Supreme Court 
of the United States.

DLD:slg 
Enclosure

cc: Marina B. Jacks

0110c



Nos. 87-5666 and 87-6026

In  The

( ta r t nf tfyr Imtrfr ^tatra
October Term, 1988

1 J ose Martinez H igh,
Petitioner v.

Walter Zant,
'''/  _______  Respondent

<*

f  Certiorari to the United States 
Anneals for the Eleventh Circuit

Petitioner
Heath A. W ilkins,

State b f Missouri,
Respondent 

isouri Supreme Court

BRIE®1 fOF AMICUS CURIAE 
THE AMERICAN BAR ASSOCIATION

Robert D. Raven *
President
American Bar Association

Andrew J. Shookhoff 
750 North Lake Shore Drive 
Chicago, Illinois 60611 
(312) 988-5000

* Counsel of Record

W i l s o n  -  E p e s  P r i n t i n g  C o . ,  In c . -  789-0096 - W a s h i n g t o n , D.C. 20001



TABLE OF CONTENTS
Page

INTEREST OF THE AMICUS CURIAE___________  1

SUMMARY OF ARGUMENT........................................ 4

ARGUMENT:

BECAUSE THE LAW CONCLUSIVELY AND 
PRUDENTLY PRESUMES THAT MINORS UN­
DER THE AGE OF EIGHTEEN ARE NOT CAP­
ABLE OF EXERCISING THE FULL RESPONSI­
BILITIES OF ADULTHOOD, THEY SHOULD 
NOT BE HELD TO THE LEVEL OF MORAL AC­
COUNTABILITY NECESSARY TO JUSTIFY 
THE IMPOSITION OF THE PUNISHMENT OF
DEATH   ............................................................  5

CONCLUSION   .......................................................... 13



11

TABLE OF AUTHORITIES
Cases: Page

BeUotti v. Baird, 443 U.S. 602 (1979) ...................  6
Breed v. Jones, 421 U.S. 519 (1975) ........................  8
Coker v. Georgia, 433 U.S. 584 (1977) ............... 10, 11,12
Eddings v. Oklahoma, 455 U.S. 104 (1982)............  10
Enmund v. Florida, 458 U.S. 782 (1982)................  10,12
Furman v. Georgia, 408 U.S. 238 (1972)................ 12
Ginsberg v. New York, 390 U.S. 629 (1968) .........  6
Gregg v. Georgia, 428 U.S. 153 (1976) ..........„...... 5, 9,12
In re Gault, 387 U.S. 1 (1967) ..... ............. .............  7
Lockett v. Ohio, 438 U.S. 586 (1978)......................  10
May v. Anderson, 345 U.S. 528 (1953) ...... ...... ...... 6
McKeiver v. Pennsylvania, 403 U.S. 258 (1973).... 7
New Jersey v. T.L.O., 469 U.S. 325 (1985) ........ . 6
Parham v. J.R., 442 U.S. 584 (1979) .... ................ . 6
People ex rel. Wayburn v. Schupf, 39 N,Y.2d 682,

350 N.E.2d 906 (1976).........................................  6
Schall v. Martin, 467 U.S. 253 (1984) ...................  6, 7
Tison v. Arizona, 107 S.Ct. 1676, 1688 (1987)........  10
Thompson v. Oklahoma, 108 S.Ct. 2687 (1988) .....passim
Trop v. Dulles, 356 U.S. 86 (1958) ......................... 9
Woodson v. North Carolina, 428 U.S. 280 (1976).... 10
Zant v. Stephens, 462 U.S. 862 (1983) ......... .........  5,10

Constitutional Authority:
U.S. Const, amend. V III........... ....... ............... .........  9
U.S. Const, amend. XXVI..........................................  4

Statutory Authority:
Or. Rev. Stat. § 161.620 (1985) ........... .....................  9
Or. Rev. Stat. § 419.533 ........ ............... ....... .............  9
Tenn. Code Ann. § 37-1-134 (1) (1984) ....................  9

Other Authority:
American Bar Association, Reports with Recom­

mendations to the House of Delegates, Report 
No. 117A (August 1983) ........ .......................... ..3, 11, 12

American Bar Association, Standards for Crimi­
nal Justice (1980) ...................................... ........... 2



TABLE OF AUTHORITIES—Continued
Page

American Bar Association, Summary of Actions 
of House of Delegates, 1977 Mid-year Meeting,
Reports of Sections .............................................   3

American Bar Association, Summary of Actions 
of House of Delegates, 1979 Annual Meeting,
Reports of Sections............... ........ -.....................  3

American Bar Association, Summary of Actions 
of House of Delegates, 1983 Annual Meeting,
Reports of Sections.......... .............................................. 2

American Bar Association, Summary of Actions
of House of Delegates, 1988 Annual Meeting,
Reports of Sections ___ _________________  3

Comment, Capital Punishment for Minors: An 
Eighth Amendment Analysis, 74 J. Grim. L.
and Criminology 1471 (1983) ............. ...............  8

Institute of Judicial Administration/American 
Bar Association, Juvenile Justice Standards Re­
lating to Dispositions (1980) ---------------------  8

Institute of Judicial Administration/American 
Bar Association, Juvenile Justice Standards Re­
lating to Transfer Between Courts (1980) ... . 4,8

Institute of Judicial Administration/American 
Bar Association, Standards for Juvenile Justice:
Summary and Analysis (1982)............. ........ ...... 7

Note, The Decency of Capital Punishment for 
Minors: Contemporary Standards and the Dig­
nity of Juveniles, 61 Ind. L. J. 757 (1986) .........  8

iii



In The

^ujtroiu? Court of %  Hutted States
October Term, 1988

Nos. 87-5666 and 87-6026

J ose Martinez H igh,
Petitionerv.

Walter Zant,
Respondent

On Writ of Certiorari to the United States 
Court of Appeals for the Eleventh Circuit

Heath A. W ilkins,
Petitioner

State of Missouri,
Respondent

On Writ of Certiorari to the Missouri Supreme Court

BRIEF OF AMICUS CURIAE 
THE AMERICAN BAR ASSOCIATION

INTEREST OF THE AMICUS CURIAE

The American Bar Association [hereinafter “ABA”] is 
a voluntary, national membership organization of the 
legal profession. Its over 343,000 members come from 
every state and territory and the District of Columbia. 
The constituency of the ABA includes prosecutors, pub­
lic defenders, private attorneys, trial and appellate judges



2

at the state and federal levels, legislators, law enforce­
ment and corrections professionals, law school deans, law 
professors, law students, and a number of non-lawyer 
associates in allied fields.

Since its inception over one hundred years ago, the 
ABA has taken an active interest in improving the ad­
ministration of justice. It has also taken a special in­
terest in the improvement of the juvenile justice system. 
Toward these ends the ABA has promulgated two compre­
hensive sets of standards, the ABA Standards for Crimi­
nal Justice and, in conjunction with the Institute of 
Judicial Administration (IJA), the IJA/ABA Juvenile 
Justice Standards.

The IJA/ABA Juvenile Justice Standards Drafting 
Project, which was completed in 1980 with the adoption 
of the Juvenile Justice Standards, involved one of the 
most thorough studies of our society’s response to the 
problems of juvenile crime ever undertaken. The Stan­
dards not only provide a thorough analysis of the histori­
cal, legal, and criminological developments in society’s 
effort to respond to juvenile crime, but, because of the 
diversity of disciplines and perspectives represented by 
the contributors, the Standards in many ways reflect our 
society’s knowledge, attitudes and values about children 
who commit crimes. The Project took no position on the 
death penalty.

In 1983, however, the ABA House of Delegates adopted 
a resolution opposing, on policy grounds, capital punish­
ment for crimes committed by minors under the age of 
eighteen years [hereinafter referred to as the “juvenile 
death penalty”] : “BE IT RESOLVED, that the Ameri­
can Bar Association opposes, in principle, the imposition 
of capital punishment upon any person for any offense 
committed while under the age of eighteen (18).” ABA, 
Summary of Actions of the House of Delegates, 1983 An­
nual Meeting, Reports of Sections 17. The House of Dele­



3

gates took no position on the constitutionality of the 
juvenile death penalty. The adoption of the House res­
olution followed almost two years of research and con­
sideration of the issue by the ABA Section on Criminal 
Justice, as summarized in its Report to the House of 
Delegates in support of the resolution. ABA, Criminal 
Justice Section, Report with Recommendations to the 
House of Delegates, Report No. 117A (August 1983) 
(hereinafter cited “ABA Juvenile Death Penalty Re­
port” ).

The imposition of the death penalty for crimes com­
mitted by minors presents its own special concerns of 
justice. This claim is underscored by the fact that the 
ABA has rejected resolutions to limit the use of the 
death penalty for adults. In 1977, the ABA Section on 
Individual Rights and Responsibilities proposed a resolu­
tion urging the state legislatures to abolish the death 
penalty in all cases. That resolution failed by a 168-69 
vote. ABA Summary of Actions of the House of Dele­
gates, 1977 Mid-year Meeting, Reports of Sections 18. 
In 1979, the ABA Criminal Justice Section proposed a 
resolution to approve sentencing guidelines limiting the 
circumstances under which capital punishment could be 
imposed. That resolution failed in the House of Dele­
gates by voice vote. ABA Summary of Actions of the 
House of Delegates, 1979 Annual Meeting, Reports of 
Sections 23. This year the House of Delegates passed a 
resolution supporting the enactment of federal and state 
legislation which strives to eliminate any racial discrimi­
nation in capital sentencing, while again emphasizing 
that “this resolution does not create a position for the 
ABA on whether or not capital punishment is an appro­
priate criminal sanction.” ABA Summary of Actions of 
the House of Delegates, 1988 Annual Meeting, Reports 
of Sections —.

The ABA participated as amicus curiae in Thompson v. 
Oklahoma, 108 S.Ct. 2687 (1988), and set forth in its



4
brief the considerations which led to the ABA position 
that the juvenile death penalty cannot be reconciled with 
contemporary societal values. Although a number of 
these considerations were acknowledged in the plurality 
and concurring opinions in Thompson, the Court did not 
reach the issue of the constitutionality of imposing capital 
punishment for crimes committed by minors under the 
age of eighteen. The ABA participates as amicus curiae 
in these cases to underscore the Association’s position 
that for reasons central to our perceptions of ourselves 
as a civilized society the death penalty should not be 
imposed upon any person for any offense committed while 
under the age of eighteen.

SUMMARY OF ARGUMENT
Our society recognizes that minors are less mature, 

less experienced, less able to exercise good judgment and 
self-restraint, more susceptible to environmental influence 
(both positive and negative), and as a result, less re­
sponsible and less culpable in a moral sense than adults. 
See IJA/ABA Juvenile Justice Standards Relating to 
Transfer Between Courts 3 (1980). In light of these 
characteristics, minors are neither entitled to all the 
rights and privileges of adulthood, nor are they given the 
full obligations of adulthood until they reach their eigh­
teenth birthdays. See, e.g., U.S. Const, amend. XXVI, § 1.

Because our criminal justice system is based on con­
cepts of individual responsibility, the differences between 
minors and adults in their capacities to assume such re­
sponsibility, recognized in other legal contexts, should be 
reflected in our response to crimes committed by minors. 
The development of the juvenile justice system is the 
clearest manifestation of society’s commitment to this 
principle of separate treatment of adult and juvenile of­
fenders. Notwithstanding the distinctions in law and fact 
between minors and adults, the juvenile justice system 
cannot deal with all juvenile crime. Some minors who 
commit serious crimes must be subject to trial and sen­



5

tencing in the criminal justice system in order adequately 
to protect society and vindicate the criminal laws. How­
ever, the fact that a minor is appropriately Hied in the 
criminal justice system does not mean that the ultimate 
criminal sanction, execution, is appropriate.

The special nature of childhood in our society led to 
the ABA position against the juvenile death penalty and 
is directly relevant to the issue before the Court. The 
death penalty is reserved for people whose crimes are 
so severe, whose character is so depraved, and whose 
moral culpability is so great as to warrant the ultimate 
sanction. See generally Zant v. Stephens, 462 U.S. 862 
(1983); Gregg v. Georgia, 428 U.S. 153 (1976). For 
the same reason we in other legal contexts conclusively 
presume that minors under the age of eighteen are not 
mature and responsible to the same extent as adults, 
they should not be held to the degree of moral account­
ability necessary to justify the ultimate sanction of 
execution.

ARGUMENT

BECAUSE THE LAW CONCLUSIVELY AND PRU­
DENTLY PRESUMES THAT MINORS UNDER THE 
AGE OF EIGHTEEN ARE NOT CAPABLE OF EXER­
CISING THE FULL RESPONSIBILITIES OF ADULT­
HOOD, THEY SHOULD NOT BE HELD TO THE 
LEVEL OF MORAL ACCOUNTABILITY NECESSARY 
TO JUSTIFY THE IMPOSITION OF THE PUNISH­
MENT OF DEATH.

Although the ABA has taken no position on the consti­
tutionality of the juvenile death penalty, the reasons for 
opposing that sanction as a matter of policy are relevant 
to this Court’s consideration of the constitutional issue. 
The ABA policy both derives from and reflects the special 
significance that our society attaches to the status of 
minority—a special significance that shapes and defines 
the issue in this case.



6

As this Court has observed in a number of different 
contexts, “children have a very special place in life which 
the law should reflect.” May v. Anderson, 345 U.S. 528, 
536 (1953) (Frankfurter, J., concurring). In cases 
which present fundamental questions involving minors— 
in this case questions of life and death—we cannot ignore 
the significance of the status of minority. “Legal theories 
and their phrasing in other cases readily lead to fal­
lacious reasoning if uncritically transferred to deter­
mination of a State’s duty toward children.” Id.

Minors are “most susceptible to influence and psycho­
logical damage” and “lack the experience, perspective and 
judgment to recognize and avoid choices that could be 
detrimental.” Bellottiv. Baird, 443 U.S. 602, 635 (1979). 
They are in the early stages of their emotional growth; 
their intellectual development is incomplete; they have 
only limited practical experience; and their value sys­
tems are not yet clearly identified and firmly adopted. 
Scholl v. Martin, 467 U.S. 253, 265 n.15 (1984) (citing 
People ex rel. Wayburn v. Schupf, 39 N.Y.2d 682, 350 
N.E.2d 906 (1976)). Unlike adults, minors are always 
in some form of custody and subject to the control of 
their parents or the state as parens patriae upon whom 
the responsibility of making important decisions for the 
minor traditionally rests, Schall v. Martin, 467 U.S. at 
265; Parham v. J.R., 442 U.S. 584, 602 (1979).

It is only upon the premise that a minor “is not pos­
sessed of that full capacity for individual choice . . . 
that a state may deprive children of . . . rights—the 
right to marry, for example, or the right to vote—depriva­
tions that would be constitutionally intolerable for 
adults.” Ginsberg v. New York, 390 U.S. 629, 649-50 
(1968) (Stewart, J., concurring). The law thus “recog­
nizes a host of distinctions between the rights and duties 
of children and those of adults,” Neiv Jersey v. T.L.O., 
469 U.S. 325, 350 n.2 (1985) (Powell, J., concurring.)



7

This recognition is apparent in the development of a 
separate juvenile justice system for dealing with juvenile 
crime. Separate treatment of juveniles for their criminal 
conduct is a relatively recent development. Under com­
mon law, children over the age of seven (the age below 
which a child was considered incapable of possessing 
criminal intent) were subjected to criminal prosecution 
and punishment like adult offenders. In re Gault, 387 
U.S. 1, 16 (1967). However, reaction to the harshness 
of a system that made no distinction between minor and 
adult when criminal conduct was involved was wide­
spread and led to the development of separate juvenile 
justice systems in every jurisdiction in the country. Id. 
at 14-15. The underlying premise of this separate sys­
tem was that minors are less mature, less able to exercise 
control and judgment, more easily influenced by others 
and by their environment and thus less culpable than 
adults for their actions.

Despite the more recent recognition that the achieve­
ments of separating systems of juvenile and criminal 
justice have fallen short of the goals, see id. 387 U.S. at 
17-18, our society has not abandoned the underlying 
premise that minors who commit crimes should be treated 
differently from adults. See, e.g., McKeiver v. Pennsyl­
vania., 403 U.S. 258 (1973) ; Schall v. Martin, 467 U.S. 
253 (1984). Thus, the IJA/ABA Juvenile Justice Stan­
dards, which provide a candid critique of the juvenile jus­
tice system and call for considerable system reform, 
nevertheless reaffirm the vitality of this underlying prin­
ciple.1 See IJA/ABA Standards for Juvenile Justice: 
Summary and Analysis 40-41 (1982).

1 There is a tendency to distinguish the juvenile justice system 
from the criminal justice system by contrasting the “rehabilitative” 
goals of the former with the “punitive” goals of the latter. How­
ever, as this Court has noted, the juvenile justice system has puni­
tive characteristics, see In re Gault, 387 U.S. at 27-30; and the 
criminal justice system is not unconcerned with treatment and



8

While not addressing the death penalty issue directly, 
the IJA/ABA Juvenile Justice Standards deal specifically 
with the issue of subjecting some minors who commit 
crimes to the jurisdiction of the criminal court. Notwith­
standing our recognition that minors should not be held 
to the same standards of criminal responsibility as adults, 
the protection offered by the juvenile justice system is 
not appropriate for some minors. IJA/ABA Juvenile 
Justice Standards Relating to Transfer Between Courts 
3. Some acts are so offensive to the community that only 
criminal court jurisdiction can ensure that control is 
maintained over the juvenile offender for a period pro­
portionate to his offense and prior record. Id. However, 
the existence of a mechanism for transfer of jurisdiction 
and the acceptance of the necessity of being able to exer­
cise criminal court jurisdiction over children for commis­
sion of serious crimes does not establish the propriety of 
treating a minor as an adult for the specific and extreme 
purpose of imposing the death penalty. The transfer de­
cision—whether discretionary with the judge or prosecu­
tor or mandated by the legislature—does not involve a 
determination that a minor is as mature as an adult and 
often involves no consideration of individual maturity, 
especially when the offense is most serious. See Note, 
The Decency of Capital Punishment for Minors: Con­
temporary Standards and the Dignity of Juveniles, 61 
Ind. L. Rev. 757, 771-72 (1986); Comment, Ca,pital 
Punishment for Minors: An Eighth Amendment Analysis, 
74 J. Grim. L. and Criminology, 1471, 1476-79 (1983). 
Rather the transfer of jurisdiction is often a pragmatic

rehabilitation. See Breed v. Jones, 421 U.S. 519, 530 n.12 (1975). 
In the ABA’s view, whether the guiding principle articulated is 
treatment, rehabilitation, protection of society through deterrence, 
or retribution, it is the fact of childhood and the fundamental differ­
ences between minors and adults that are the critical factors which 
ultimately provide the rationale for separate systems. See IJA / 
ABA Juvenile Justice Standards Relating to Dispositions, Standard 
1.1 and commentary thereto (1980).



9

decision that the limited jurisdiction of the juvenile jus­
tice system cannot provide adequate protection for the 
community. See Thompson v. Oklahoma, 108 S.Ct. 2687, 
2707 (1988) (O’Connor, J., concurring).

The factors that warrant transfer and the concomitant 
decision to subject the minor to the lengthy sentences 
available in criminal court thus do not resolve the issue 
of the propriety of the death penalty for the minor who 
is transferred. It is not at all incongruous to find states 
in which the juvenile death penalty had been statutorily 
permissible lowering the minimum age for transfer to 
adult court as part of “getting tough” on juvenile crime 
while at the same time eliminating the juvenile death 
penalty. See, e.g., Tenn. Code Ann. § 37-1-134(1) (1984) 
(1982 amendments); Or. Rev. Stat. §§ 161.620 (1985), 
419.533 (1983) (1985 amendments).

The issue before this Court is whether a minor under 
the age of eighteen can, consistent with the Eighth 
Amendment, be held to that level of responsibility and 
moral culpability for which society reserves the penalty 
of death. The words of the Eighth Amendment proscrib­
ing imposition of criminal penalties which are cruel and 
unusual, “are not precise and . . . their scope is not 
static.” Trop v. Dulles, 356 U.S. 86, 100-01 (1958) 
(plurality opinion). The meaning of the Amendment is 
drawn “from the evolving standards of decency that 
mark the progress of a maturing society.” Id. at 101. 
Thus, punishments which may have been accepted by 
society when this amendment was adopted can come to 
be viewed in our time as excessive and unconstitutional. 
Gregg v. Georgia, 428 U.S. at 171 (opinion of Stewart, 
Powell and Stevens, J J .).

The death penalty is different in kind from any other 
criminal punishment; it is “unique in its severity and 
irrevocability.” Id. at 187. In light of this, this Court 
has held that the discretion to impose the death penalty



10

must be limited and directed to ensure that it is not 
inflicted in an arbitrary and capricious manner. Zant v. 
Stephens, 462 U.S. at 874. Not only must the sentencing 
authority be provided guidelines, but it must be able to 
consider any and all mitigating factors, Lockett v. Ohio, 
438 U.S. 586, 604 (1978) (plurality opinion), including 
the character and record of the individual and the cir­
cumstances of the particular offense, Woodson v. North 
Carolina, 428 U.S. 280, 304 (1976) (opinion of Stewart, 
Powell and Stevens, JJ.) and must in fact consider such 
mitigating factors. Eddings v. Oklahoma, 455 U.S. 104, 
114 (1982).

In certain situations, however, the Court has refused 
to allow the sentencing authority the discretion to deter­
mine whether a defendant should live or die based on a 
balancing of aggravating and mitigating circumstances 
presented by the individual case. If the crime is the rape 
of an adult woman and it does not result in the death of 
the victim, the death penalty is prohibited. Coker v. 
Georgia, 433 U.S. 584, 592 (1977) (plurality opinion). 
If the crime results in the death of the victim, but the 
person charged is guilty of felony murder simpliciter, 
the death penalty is prohibited. Enmund v. Florida, 458 
U.S. 782, 788 (1982). For felony murders, the standard 
appears to be that the death penalty may be imposed 
if the defendant is a major participant in the felony 
committed who acted intentionally or with reckless in­
difference to human life. Tison v. Arizona, 107 S.Ct. 
1676, 1688 (1987). Thus, there are situations in which 
ensuring an individualized consideration of the circum­
stances of the offense simply does not satisfy the Eighth 
Amendment; this Court has therefore prohibited execu­
tion in such cases.

This Court has already recognized that the youth of 
a defendant is a mitigating factor which is entitled to 
great weight, Eddings v. Oklahoma, 455 U.S. at 116. 
In Thompson, v. Oklahoma, four members of this Court



11

held that the youth of the defendant alone, at least where 
the child is under the age of sixteen, is an absolute bar 
to execution, 108 S.Ct. at 2700, and one Justice, although 
concurring on narrower grounds, indicated her belief that 
the plurality was probably correct. 108 S.Ct. at 2706 
(O’Connor, J., concurring). The issue in this case is 
whether, when the crime is committed by a minor under 
the age of eighteen, the fact of minority is of such over­
riding importance that a bright line must be drawn 
prohibiting execution.

In determining whether a particular punishment once 
tolerated can no longer be reconciled with our advancing 
standards of decency, the Court has looked to various 
indicia of contemporary values and attitudes. Coker v. 
Georgia, 433 U.S. at 592 n.10. As the plurality noted in 
Thompson v. Oklahoma, the position of the ABA itself 
is an indicator of such values and attitudes. See Thomp­
son v. Oklahoma, 108 S.Ct. at 2696. The House of Dele­
gates which sets ABA policy is composed of representa­
tives of every state and reflects the broad spectrum of 
political and social views of the legal community. See 
Appendix A (ABA Constitution and Bylaws concerning 
composition of House of Delegates). The fact that the 
ABA, which has not opposed the death penalty for adults, 
is opposed to the death penalty for juveniles, is one reflec­
tion of the national consensus on this issue.

Moreover, the ABA Juvenile Death Penalty Report 
considered other indicia of contemporary values and at­
titudes such as international and legislative norms in con­
cluding that a civilized society should no longer allow 
execution for crimes committed by minors. The ABA 
considered evidence, documented by the plurality opinion 
in Thompson v. Oklahoma, 108 S.Ct. at 2696, that the 
juvenile death penalty is overwhelmingly rejected in the 
international community. The ABA also found evidence 
of the unacceptability of the juvenile death penalty in 
the increasing number of states that upon specific con­



12

sideration of the application of the death penalty to per­
sons below the age1 of eighteen have rejected it. See 
Thompson v. Oklahoma, 108 S.Ct. at 2696 n,30. This 
evidence was particularly compelling in light of the re­
enactment of the death penalty in thirty-five jurisdic­
tions since this Court’s decision in Furman v. Georgia, 
408 U.S. 238 (1972).

Finally, the ABA Juvenile Death Penalty Report con­
sidered the role of a death penalty for juveniles in fur­
thering deterrence and retribution, two values recognized 
by this Court as legitimate bases for imposing criminal 
penalties including capital punishment. Gregg v. Georgia, 
428 U.S. at 183 (1976) (opinion of Stewart, Powell and 
Stevens, J J ) . The report concluded that these justifica­
tions “. . . lose much of their persuasiveness when ap­
plied to an adolescent’s case.” ABA Juvenile Death 
Penalty Report 8-9. Whatever deterrent effect might exist 
for potential adult offenders, Gregg v. Georgia, 428 U.S. 
at 184-85, in light of the characteristics associated with 
childhood—impulsiveness, lack of self control, poor judg­
ment, feelings of invincibility—the deterrent value of the 
juvenile death penalty is likely of little consequence. In 
any event, it would be difficult to support a claim that the 
death penalty as a deterrent for juvenile crime, as op­
posed to life imprisonment, “is an indispensable part of 
the State’s criminal justice system.” Coker v. Georgia, 
437 U.S. at 592 n.4. Whatever deterrent value might 
exist is insignificant when balanced against the societal 
values compromised by the juvenile death penalty.

Retribution, defined by this Court as “the expression of 
society’s moral outrage at particularly offensive conduct” 
Gregg v. Georgia, 428 U.S. at 183, is also an unsatisfac­
tory justification for the juvenile death penalty. The 
moral force of—and thus the legal justification f o r -  
taking human life in retribution is dependent on the de­
gree of culpability of the offender, and not just on the 
injury to the victim. See Enmund v. Florida, 458 U.S. at



13

800. Because of our societal attitudes and well-founded 
legal presumptions regarding the status of minority, a 
minor simply cannot be held to that degree of culpability 
and accountability.

Lines drawn on the basis of age inevitably appear 
arbitrary for those near the line of demarcation. How­
ever, as a society we must in important matters of legal 
rights and responsibilities make distinctions based on age 
alone that are absolute and allow no exceptions for the 
particularly responsible or irresponsible person of that 
age. In areas in which the rights exercised or the respon­
sibilities imposed are of the highest order in our society—■ 
the right to vote and the responsibility to serve on a 
jury—every jurisdiction conclusively presumes that chil­
dren under the age of eighteen, no matter how mature, 
are incapable of exercising adult responsibility. See 
Thompson v. Oklahoma, 108 S.Ct. at 2701, Appendices A 
and B. Even the dissent recognizes that at some point 
age alone must be held to be an absolute bar to execution. 
Thompson v. Oklahoma, 108 S.Ct. at 2714. The ABA 
submits that the appropriate point to draw the line for 
purposes of the death penalty is at the age of eighteen.

CONCLUSION

The death penalty should not be imposed upon any per­
son for any offense committed while under the age of 
eighteen.

Respectfully submitted,

Robert D. Raven *
President
American Bar Association

Andrew J. Shookhoff 
750 North Lake Shore Drive 
Chicago, Illinois 60611 
(312) 988-5000

* Counsel of Record



APPENDIX A

American Bar Association, Constitution and Bylaws; 
Rules of Procedure House of Delegates; Article 6, Section 
6.1 and 6.2 (1987-88).

Article 6. The House of Delegates
§ 6.1 Powers and Functions. The House of Delegates 

shall control, formulate policy for, and administer the 
Association. It has all the powers necessary or incidental 
to performing those functions. It shall supervise and 
direct the Board of Governors, officers, sections, commit­
tees, and employees and agents of the Association. It 
may adopt rules consistent with the Constitution and 
Bylaws. It is the judge of the election and qualifications 
of its members.

§ 6.2 Composition, (a) The House of Delegates, which 
is designed to be representative of the legal profession of 
the United States, is composed of the following members 
of the Association:

The State Delegates, one for each state, who also serve 
as chairmen of the delegate groups from the respec­
tive states.

The state bar association delegates, at least one for 
each state.

The delegates from eligible local bar associations, one 
for each eligible association.

The Assembly Delegates elected by the Assembly, 15 in 
number.

The delegates representing the respective sections of 
the Association, at least one for each section and the 
Senior Lawyers Division except four for the Young 
Lawyers Division (including the Young Lawyers 
Division representative on the Nominating Commit­
tee), and two for the Law Student Division.

The delegates representing the following conferences of 
the Judicial Administration Division: One each for

la



the Appellate Judges’ Conference, the National Con­
ference of State Trial Judges, the National Confer­
ence of Special Court Judges, the National Confer­
ence of Federal Trial Judges, and the Conference of 
Administrative Law Judges.

The members of the Board of Governors, except the 
administrative officer.

The former elected members of the Board of Governors, 
for two Association years immediately following the 
end of their respective terms.

The former presidents of the Association and former 
chairmen of the House of Delegates; provided that 
all former presidents or chairmen elected to those 
positions after August 15, 1975, shall be full voting- 
members of the House for ten years after the con­
clusion of their service as president or chairman and 
with voice but no vote thereafter.

The former secretaries and former treasurers of the 
Association who have had three or more years of 
service as such, as except that a former officer first 
elected to an office that qualifies him under this pro­
vision after August 15, 1975, may serve for only the 
five Association years immediately following the end 
of this term.

The Attorney General of the United States or, at his 
option, the Deputy Attorney General or the Solicitor 
General.

The Director of the Administrative Office of the United 
States Courts.

The delegates from affiliated organizations, one for 
each organization.

(b) Beginning in 1995 and at least once every ten 
years thereafter, a review of the representation in the 
House in terms of Association membership shall be con­
ducted to ensure appropriate representation of the above 
constituencies.