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March 28, 2004

US: Two more states abolish juvenile death penalty

The governors of two states, South Dakota and Wyoming, each signed legislation on March 3 raising the minimum age for capital punishment in their states to 18. In the United States, 31 states and the federal government now prohibit the execution of juvenile offenders, including the 12 states that have abolished the death penalty entirely.

At least nine other states, including Arizona, Kentucky, and Virginia, are considering raising the minimum age for capital punishment to 18. Most recently, New Hampshire's Senate on February 19 passed such a bill, which now goes to the state House of Representatives for consideration. These steps follow the national trend in recent years. Indiana abolished the death penalty for juvenile offenders in 2002, as did Montana in 1999.

A month ago, the US Supreme Court agreed to reconsider the question of whether executing juvenile offenders violates the Constitution's ban on "cruel and unusual punishment." In its last decision on the issue, in 1989, the court held that states may impose capital punishment on those who were 16 and 17 at the time of their crimes.

Texas has continued to schedule executions for juvenile offenders even after the high court announced on January 26 that it intended to review the practice. But in the past week, Justice Antonin Scalia has granted stays of execution for Anzel Jones and Edward Capetillo, two of the five juvenile offenders with execution dates in Texas. The court usually issues such stays when the outcome of its decision in one case would affect the validity of the death sentences in other cases.

International treaties and customary international law forbid capital punishment for offenders under the age of 18 at the time of the offense for which they were convicted. Iran, Saudi Arabia, Nigeria and the Democratic Republic of Congo are the only other countries that are known to defy the worldwide consensus that the death penalty should not be imposed on juvenile offenders.

Four US Supreme Court justices are already on record as opposing the execution of those who were under age of 18 at the time of their crimes. In a dissenting opinion issued in October 2002, Justice John Paul Stevens-joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen Breyer-characterised the juvenile death penalty as "a relic of the past" and concluded, "We should put an end to this shameful practice."

Read together with the court's June 2002 decision in Atkins Vs Virginia, the recent state developments suggest that the high court may indeed put an end to the death penalty for juvenile offenders in the next year. In Atkins, the court found that the execution of offenders with mental retardation was unconstitutional, reasoning that a national consensus had developed against it. As Justice Stevens noted in his dissent, the reasons supporting the court's decision in Atkins "apply with equal or greater force to the execution of juvenile offenders."

Source: Human Rights Watch.