Executing Juveniles: An Eight-Amendment Violation?
By: Richard Brown

     In Tulsa, Oklahoma, on October 6, 1987, Scott Hain and Robert Lambert were searching for some mischievous entertainment when they noticed Scott Haughton and Laura Sanders coming out of a local pub and getting into Sanders’ car. At that time, Hain and Lambert approached the vehicle and forced themselves into it using a knife. They then drove the car to a different location where Haughton and Sanders surrendered 565 dollars at gunpoint. After the robbery, Hain and Lambert demanded both Haughton and Sanders into the trunk. They then cut the gas line of the vehicle and intentionally set fire to the car. Lambert could hear screams escaping from inside the torrid coffin. Ignoring these cries, the offenders left the fiery scene, however they returned later to check on the fire’s progress. Both Haughton and Sanders died in the trunk. Hain and Lambert were arrested, and after a trial in June of 1988, found guilty of murder and sentenced to death. At the time of his crime, Hain was only 17 years old. His last appeal was in January of 2003 to the United States Supreme Court where Hain’s attorney argued the unconstitutionality of the death penalty for a juvenile crime, but the court denied certiorari. Defeated in his last appeal, Hain was put to death at the age of 32 by a lethal injection on April 3, 2003. He was the last criminal in the United States executed for a crime while under the age of eighteen.

     Hain asked the question that many juvenile offenders on death row would like answered: Should the death penalty in America for juveniles under 18 years old be unconstitutional? In other words, would such an execution be considered “cruel and unusual” under the 8th Amendment of the U.S. Constitution, which states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”? A growing consensus and a variety of relevant mitigating factors indicate that it is. Issues of maturity, guardian guidance, and psychological state decrease the likelihood that the defendant’s culpability is enough to merit capital punishment. In addition, there is currently a growing unfavorable response to the execution of juveniles, both in America and the world that has made the practice unpopular. Therefore, in my opinion the punishment of death for juveniles less than 18 years of age violates the 8th Amendment.

History of the Death Penalty

     The current focus on juvenile executions follows a long history of how ideas about capital punishment have evolved. Early American colonists adopted the practice of executing criminals as a form of punishment after receiving the idea from England’s criminal law. England commonly attached death sentences to a variety of crimes. As a matter of fact, in The Death Penalty in America, Hugo Adam Bedau pointed out that every person convicted of a felony faced execution because there were no alternative punishments. A defendant’s only hope was to receive the Crown’s commonly given grant of mercy, which the trial courts urged. This desire for royalty’s compassion increased as England labeled more crimes capital. Bedau reported that England raised their number of capital crimes from 8 at the start of the 16th century to nearly 223 by 1819. Luckily for offenders, mercy was often granted, but not to everyone. Some criminals suffered death through torturous and cruel punishments. For example, besides from the common hanging or horrid burning at the stake, Bedau mentioned the sentencing of seven men for high treason in 1812 (1-4). Also known as the “bloody code,” this condemnation read that the convicted person be moved:

            on a hurdle to the place of execution, where you shall be hanged

            by the neck, not till you are dead; that you be severally taken down,

            while yet alive, and your bowels be taken out and burnt

            before your faces-that your heads be then cut off, and your

            bodies cut into four quarters, to be at the King’s disposal (3).

There could be no question then of England’s use of cruelty when inflicting punishments on capital offenders. Fierce executions occurred, but officials hoped they would act as deterrents to other criminals. Since American colonists also desired to dissuade crime they mimicked the English criminal law in their developing nation.

    In early America, crimes carrying the death penalty varied according to the state. Bedau demonstrated this, for example, when he compared the harshness of penal codes in Massachusetts, South Jersey, Pennsylvania, and North Carolina. According to Bedau, Massachusetts Bay Colony, having the “earliest recorded set of capital statutes,” some reaching back to 1636, had up to thirteen crimes punishable by death (5). These offenses, each supported by the Old Testament, consisted of “idolatry, witchcraft, blasphemy, murder, assault in sudden anger, sodomy, buggery, adultery, statutory rape, rape, man-stealing, perjury in a capital trial, and rebellion” (5). By 1785, however, the Commonwealth of Massachusetts altered and reduced that list to include only nine capital crimes: “treason, piracy, murder, sodomy, buggery, rape, robbery, arson, and burglary” (6). Despite that reduction, however, Massachusetts was still strict when compared to other states, with the exception of North Carolina.

     Lacking penitentiaries, North Carolina exercised capital punishment for over 25 crimes up to 1837 (6-7). Their sentencing, therefore, was not only harsh, but it could be labeled the extreme opposite of states like South Jersey and Pennsylvania. Bedau noted that South Jersey had not executed a criminal until 1691. In Pennsylvania, treason and murder were the only two crimes to carry the death penalty because of the constraints of William Penn’s Great Act of 1682 (6). These two states undoubtedly tried to limit the number of criminals executed, but unfortunately, they would temporarily fail in the 18th century “when the colonies were required to adopt, at the direction of the Crown, a far harsher penal code” (6). The effects of England’s demand not only raised the number of capital crimes in states like Pennsylvania and South Jersey, but also triggered calls for reform. This reform movement became more prominent after the American Revolution when America separated from England.

Reform Movement

     According to Bedau, Dr. Benjamin Rush (1745-1813), a physician and a statesman, attended a social gathering at the house of Benjamin Franklin in 1787. While enjoying the company of his friends that day, Rush advocated for a penitentiary, or what he called a “House of Reform,” to be built for criminals. In this prison, criminals, who otherwise would be executed, would serve sentences until they were rehabilitated (7). Rush was so devoted to this cause that the following year he even wrote an essay against capital punishment entitled, “Inquiry into the Justice and Policy of Punishing Murder by Death.” Bedau pointed out that Rush defended his argument by citing lack of scriptural support, the opposite effect of deterrence, and abuse of governmental power (8). Slowly, these efforts to bring reform attracted support.

     The first signs of advocacy following Rush’s essay appeared in Pennsylvania. Bedau commented that in 1794 supporters of abolition of the death penalty, like Benjamin Franklin and William Bradford, helped rid Pennsylvania of capital punishments for all crimes. The only exception was the serious crime of “first degree” murder, which continued to carry a punishment of death (8). This desire to reform capital laws then increased in the 1830’s as citizens of Maine, Massachusetts, Ohio, New Jersey, New York and Pennsylvania urged legislatures through petitions to stop executing criminals. Voices of abolitionists became even louder in the 1840’s when Horace Greeley, editor of the New York Tribune, openly criticized the punishment, and when the American Society for the Abolition of Capital Punishment became active in 1845 (9).

     These efforts to bring reform were eventually rewarded. On March 1, 1847, Michigan replaced the death penalty with life imprisonment for all crimes except treason. In 1852, Rhode Island also abandoned the practice of execution, including for cases involving treasonous acts. Wisconsin followed suit the next year (9). Eventually, in the period following the Civil War, Congress would reduce their lengthy list of crimes deserving capital punishment to only three: “murder, treason, and rape” (10). In the following decades, however, some states would adopt more capital statutes, especially for crimes that received national publicity. For example, following baby Lindbergh’s death in 1932, over 24 states made kidnapping a capital offense. Nevertheless, capital crimes in America have been added and subtracted in states. The survival of a capital crime, like murder, depended on society’s approval of execution as a punishment for it.

     Besides the type of crime, another reason Americans fought for reform was because of the harsh methods of execution. Even after America won its independence from England, cruel punishments, such as pressing to death or burning at the stake, were still performed. Since these punishments occurred in the 18th century, the framers of the U.S. Constitution and drafters of several state constitutions demanded an amendment that would protect citizens from “cruel and unusual” punishments. In the federal government, this Amendment would be the Eighth, adopted in 1791. However, even before the 8th Amendment of the U.S. Constitution was added, American cries for a safeguard from harsh sentencing were successful. For example, Bedau pointed out that these demands by 1789 helped end the cruel practices of drawing and quartering, pressing, and burning (17).

     After the adoption of the 8th Amendment, Americans also searched for more humane methods of killing. For example, Bedau noted the electric chair, which authorities used for the first time on August 6, 1890 on the murderer, William Kemmler. Supporters of electrocution argued that this method was far more humane than hanging. Robert G. Elliot, an electrocutioner, for instance, “assured the public in his memoirs that the condemned man loses consciousness immediately with the first jolt of current” (17). As a result, electrocution grew popular among some states because it involved less suffering, but it never completely replaced hanging.


     Overall, the death penalty has been exercised since the United State’s founding, and in general, it cannot be considered in every circumstance as “cruel and unusual.” The unconstitutionality of an execution depends on a variety of factors, such as the method of the capital punishment and the crime. For example, while burning an accused woman for witchery is now rejected, shooting an individual for murder is not. The Supreme Court in Wilkerson v. Utah ruled, “Cruel and unusual punishments are forbidden by the Constitution, but…the shooting as a mode of executing the death penalty for a crime of murder in the first degree is not included in that category, within the meaning of the eight amendment” 99 U.S. 130 (1879). Therefore, the execution of a criminal under the right circumstances is allowable, mainly because the punishment of death in itself is not unconstitutional. It was only between the years of 1972 and 1976 when the Supreme Court rejected the death penalty because they believed the punishment violated the 8th and 14th Amendments, Furman v. Georgia 408 U.S. 238 (1972). In 1976, however, the Supreme Court in Gregg v. Georgia stated, “we cannot say that the punishment is invariably disproportionate to the crime. The death penalty is an extreme sanction, suitable to the most extreme crimes” 428 U.S. 153 (1976). While society generally accepts this new decision, they still raise a question. What if a juvenile who doesn’t fully understand the results of their actions because of their age commits a severe crime? Would a capital punishment then violate the 8th Amendment?


     In Death Penalty for Juveniles, Victor Streib described the first known juvenile execution in America. It occurred in 1642 in Roxbury, Massachusetts when bestiality was considered a capital offense. A sixteen-year-old boy, Thomas Graunger, still in his developmental stages of life, was unfortunately charged and found guilty of sodomizing a horse and a cow. His fate, as a result, appeared to be inevitable to his society. Leviticus 20.15, speaking for the law, stated, “And if a man lie with a beast, he shall surely be put to death: and ye shall slay the beast.” These religious words guided the sentencing. The horse and cow, along with its calves, were slaughtered. The sixteen-year-old boy then suffered his death, which involved suffocating while dangling from a noose (73).

     Graunger’s death is important in deciding the aforesaid constitutionality issue. The examination and totaling of juvenile executions began with his death. The number of these capital punishments demonstrates the rarity of the practice, and ultimately, the public’s unfavorable attitude towards it. For instance, according to the Death Penalty Information Center, in an article entitled “Age Requirements for the Death Penalty and the Execution of Juveniles,” approximately 365 juvenile offenders have been executed since Graunger. This number makes up “1.8% of roughly 20,000 confirmed American executions since 1608” (3). Obviously, this percentage indicates American’s reluctance to administer death when a person under the age of eighteen has committed a crime. This unwillingness to execute can be explained by the fact that Americans view juveniles as different from adults. According to Streib, children were always considered “a special class of criminals,” and for the most part, needed extra protection (4). This feeling led to the creation of juvenile courts and to relatively few executions of juvenile offenders.

Juvenile Courts

     Children were usually always considered separately from adults and sentenced less harshly in America and England. For example, Streib noted that society believed children under 7 years old lacked maturity and so could not be convicted of a crime. For a child over the age of 7, and who was believed to possess a criminal intent, a punishment could then be inflicted, however in most cases that sanction was not as harsh as it would be for an adult (4). Therefore, to some extent juveniles have always been viewed as “special,” but America’s biggest display of leniency and desire to protect children appeared in 1899 when Illinois and Colorado opened juvenile courts. The idea behind the court was simple. In a 1983 article entitled, “Is Child Saving Dead? Attitudes Toward Juvenile Rehabilitation in Illinois,” Cullen, Golden & Cullen wrote:

Young people involved in crime were assumed to be less responsible for their actions, less inclined to benefit from punishment, and more hopeful targets of a therapeutic approach than their adult counterparts. A basic optimism concerning youth, the malleability of the adolescent, and the possibilities of successfully rehabilitation and changing youthful natures was the foundation on which the original juvenile court was built (2).

As a result, the juvenile court believed that an extreme punishment, like death, was too severe for a child or a teenager. Children needed protection from harsh sentencing, and should have an opportunity to be rehabilitated so they could rejoin society. This reasoning grew more popular among the states through out the 19th and 20th centuries. Streib found that juvenile courts existed in 48 states by 1925, and today there are over 3000 courts across the country hearing cases (4).

     Despite the popularity of juvenile courts in the 20th century, adolescents are still not completely protected from capital punishments. There are many cases where children are placed in adult criminal courts. For example, Streib pointed out that Louisiana responds to serious offenders, like murders, rapists, burglars, and kidnappers, by placing them immediately into the criminal court jurisdiction where punishment can be capital. The age of the defendant has no impact on this placement (9). It is important to note, however, that just because a child falls out of the juvenile court’s jurisdiction, does not mean age will be overlooked when sentencing. By law, courts are required to look at mitigating factors for children more closely.

Supreme Court and Mitigating Factors

     The Supreme Court of the United States has hinted at their unease with juvenile executions by mentioning several times how mitigating factors, such as age, are important when considering facts and sentencing. Four relevant examples appear in court rulings between the years 1976 and 1982. The first case of importance was Gregg v. Georgia (1976). While the focus of this case was the constitutionality of the death penalty in light of the 8th Amendment, the court’s attitude towards mitigating factors was also demonstrated. In Gregg v. Georgia, the court upheld a Georgia statute that required a jury to consider “facts and circumstances” that might block a sentencing of death. Justice Stewart, speaking for the majority, said, “We have long recognized that ‘for the determination of sentences, justice generally requires…that there be taken into account the circumstances of the offense together with the character and propensities of the offender’” 428 U.S. 153 (1976). Even though age was not specifically mentioned, Gregg v. Georgia hinted that juries should consider age.

     The following year the Supreme Court made this more clear when they ruled in Roberts v. Louisiana (1977). The Roberts case questioned the constitutionality of a law that attached an automatic capital punishment to the killing of a police officer. After examining the case, the holding of the Court held such a statute in violation of the Constitution. They reasoned:

Circumstances such as the youth of the offender, the absence of any prior conviction, the influence of drugs, alcohol, or extreme emotional disturbance, and even the existence of circumstances which the offender reasonably believed provided a moral jurisdiction for his conduct are all examples of mitigating facts which might attend the killing of a peace officer and which are considered relevant in other jurisdictions 431 U.S 633 (1977).

In the Roberts case the Supreme Court specifically expressed that “youth” or age was a possible factor that must be weighed in with the crime before an extreme sanction was given. The Court repeated this way of thinking again in 1978 in Lockett v. Ohio where the Court struck down an Ohio statute because it didn’t consider facts like the “defendant’s…age” when sentencing. The majority emphasized that “the Eight and Fourteenth Amendments require that the sentencer…not be precluded from considering, as a mitigating factor, any aspect of a defendants character or record…that the defendant proffers as basis for a sentence less than death” 438 U.S. 586 (1978).

     In a related case, Eddings v. Oklahoma, the court re-illustrated a similar point, stressing attention to mitigating factors, and ultimately causing reluctance to execute children. Speaking for the majority, Justice Powell argued that “just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence” 455 U.S. 104 (1982). Therefore, according to the law, mitigating facts, like age, must be considered before sentencing. This automatically places children in a special category that demands closer examination. The results of this attention then prove unfavorable to the execution of juveniles, which ultimately leads to the practice becoming “unusual”. For example, both jury sentencing patterns and legislative attitudes demonstrated how age consideration makes capital punishment for children rare.

Jury Sentencing Patterns

     Since 1973, juries have been growing reluctant to sentence juveniles to death because of their age. In an article entitled, “Death Sentences and Executions for Juvenile Crimes: January 1, 1973 – June 30, 2003,” Victor Streib wrote that of the 7,425 death sentences given since 1973, only 226 were for juvenile offenders. This juvenile count, equaling 3% of the sentencing total, demonstrates an overall rarity of juries choosing death for children instead of prison. Even if the child was sentenced, however, they still have a good chance that their punishment will be reversed or downgraded to life imprisonment. This was the case for 126 of the 226 offenders (12).

     In addition to an overall low percentage of juvenile sentencing, the number of juveniles receiving a capital punishment has also decreased steadily in recent years. For instance, in the same article, Streib pointed out that juvenile death sentencing made up 3-5% total sentences in the later years of the 1990’s. This percentage was cut nearly in half during 2001-02 when compared to “the typical rate in the preceding 6 years.” Juries continued to demonstrate increasing reluctance in 2002 when they sentenced only 4 young individuals to death. In 2003, only one was sentenced within the first nine months of the year (12-13). Therefore, death sentencing for juveniles in the United States is becoming increasingly rare when compared to adults. As a result, the rarity helps make the practice of executing persons less than 18 years old “unusual,” which the 8th Amendment finds in violation of the U.S. Constitution.

Legislative Attitudes

     Like juries, legislators demonstrate an unfavorable view of capital punishment for adolescents. In Death Penalty for Juveniles, Victor Streib wrote that these attitudes are clearly shown by the widespread use of juvenile systems, all of which are structured to protect children from harsh adult punishments. In addition to these juvenile court systems, an increasing number of states are protecting adolescents, who might be involuntarily directed away from the juvenile courts, by adopting death penalty statutes that limit the age at which a person can receive the death penalty. In the early 1960’s, states created laws that allowed very young people to be executed. For example, Streib showed that existing statutes set “the minimum age for the death penalty [at] age seven in sixteen states, age eight in three states, age ten in three states, and age twelve to eighteen in nineteen states” (26). Today, however, states have created age limitations as extra protection against the death penalty. For example, according to the Death Penalty Information Center, in an article entitled, “Age Requirements for the Death Penalty and the Execution of Juveniles,” there are 38 states that allow for the execution of criminals. In those states, legislators created statutes that set the minimum age for death at sixteen in sixteen states, age seventeen in five states, and age eighteen in seventeen states (1). This is a dramatic increase in protection of what was offered in the 1960’s. Obviously, there is a growing legislative disesteem for the harsh punishing of juveniles.


     Overall, the death penalty has always been rarely applied to juveniles in America. Despite any decade examined, juvenile death sentences and executions were significantly lower than their adult counterparts. The reason for this unusualness is because collectively people are unsupportive of such a harsh punishment for children. This is demonstrated through the popularity of juvenile courts, jury sentencing patterns, recent statutes, and even through the expression of professional organizations, institutions, and leaders. For example, Victor Streib acknowledged, in an article entitled “Juveniles on Death Row,” that the American Law Institute is against this level of punishment for juveniles. The Institute said, “Civilized societies will not tolerate the spectacle of execution of children.” Streib also pointed out that the National Commission on Reform of Criminal Law, the American Bar Association (ABA), the Washington Post, Pope John Paul II, all European Countries, and since 1976, the United Nations have rejected the punishment of death for persons under the age of eighteen. As a matter of fact since 1990, only the Democratic Republic of the Congo, Iran, Pakistan, Yemen, Nigeria, and Saudi Arabia participate with the U.S. in executing juveniles (173). There is currently a growing disapproval of executing children both in the United States and the world, which explains the rarity of juvenile death sentences. As a result, capital punishment for juveniles continues to be unusual, and for this reason, it is in my opinion unconstitutional.


     In addition to the unusualness of juvenile executions, there is a second reason why I believe the punishment violates the 8th Amendment. Killing a person less than 18 years of age is cruel. The practice severely punishes a juvenile for a crime that they are not completely responsible for because of the susceptibility that accompanies their young age. Many supporters of the death penalty, however, overlook this fact. Their pro-death argument is simple.  In Death Penalty, Don Nardo wrote that supporters of juvenile executions think, “society should focus on the crime, and not the age of the offenders.” If a serious crime is committed, then an appropriate punishment should be issued, regardless of the age of the perpetrator (63). The problem with this argument, though, is that the crime alone is not the only consideration, especially in cases involving children. The law recognizes that judges and juries must consider mitigating factors before sentencing to ensure that the rights of the individual are not violated. This is especially important with children who are likely to be immature, and in some cases, have unstable family backgrounds, and as a result, psychological problems. These may be partly responsible for the child’s criminal actions, and so, call for a lesser punishment. Sentencing death to a person who is not fully accountable, then, is cruel.

Unstable Family Backgrounds, High Susceptibility, and Immaturity

     According to the International Justice Project, in a case overview entitled, “Scott Hain: Juvenile Offender in Oklahoma,” Scott Hain, who burned a couple alive in Tulsa, Oklahoma, was born on June 2, 1970. He grew up under the custody of Aleta Catron Hain, an alcoholic mother and high school drop out, and Don Hain, an abusive, alcoholic father who spent most of his time away from home. Many nights, young Hain was left home alone with his sister to eat dinner, do school work, and put himself to bed while his parents enjoyed themselves at the bar. Hain practically raised himself. Growing up, he failed first and fifth grade, possibly because of developmental difficulties. Hain also started to use marijuana around age nine or ten when his father introduced it to him. Around age 13, he temporarily moved to Texas with his family in an attempt to escape their debts, but eventually Hain moved back to Oklahoma to live with a friend, Lou Mayfield. While at the Mayfield residence, Hain stayed in school and out of trouble. This good behavior ceased, however, when Hain’s parents moved back to Oklahoma a year later and had their son rejoin them. Shortly after this family reunion, the district attorney charged Hain with grand larceny and trespassing, but a judge only placed him on probation. Eventually Hain’s parents lost custody of their son, and in October of 1985, Hain was incarcerated at Rader Treatment Center. He spent two years at the Center before he escaped in February of 1987 when he went to join his father in burglary. In March of that year, Hain was re-apprehended and sent back to Rader. In July, he escaped again and traveled to Kansas with his father where Hain would continue stealing. After catching Hain a second time, police returned the boy to Oklahoma. Following his release from Rader in July of 1987, Hain walked the streets drinking alcohol and taking marijuana, crack, speed, LSD, PCP, and barbiturates. It was during this time when Hain met Robert Lambert, a friend who invited him on more criminal outings, one of which involved killing Scott Haughton and Laura Sanders (1-2).

     Was Hain fully accountable for his criminal actions that took the lives of Haughton and Sanders on October 6, 1987? Should his unstable family background, which negatively affected him during his influenceable years, be overlooked? Should his immaturity, psychological and emotional problems be ignored? No. Most juvenile offenders do not fully understand the results of their actions, and these mitigating factors decrease Hain’s accountability. In Juveniles on Death Row, Victor Streib quoted Charles Rumbaugh, the first juvenile offender sentenced to death in the post-Furman era, or the years following Furman v. Georgia. Rumbaugh said, “I was seventeen years old when I committed the offense for which I am about to die, and I didn’t even start thinking and caring about my life until I was at least twenty” (171). One reason for this lack of concern is because a 17 year old has not reached a level of maturation that an adult has. In a dissenting opinion of Stanford v. Kentucky, Justice Brennan recognized that:

            the development of cognitive and reasoning abilities and of empathy, the acquisition of experience upon which these abilities operate and upon which the capacity to make sound value judgments depends, and in general the process of maturation into a self-directed individual fully responsible for his actions, occur in degrees…But the factors discussed above indicate that 18 is the dividing line that society had generally drawn, the point at which it is thought reasonable to assume that persons have the ability to make, and a duty to bear responsibility for their judgments…Many of the psychological and emotional changes that an adolescent experiences in maturing [however] do not actually occur until the early 20’s” 492 U.S. 361 (1989).

Most criminals under 18 years old do not have the ability to seriously consider the consequences of their actions, and so do not care about their crimes. They lack reasoning, experience, and maturity and easily allow outside influence to guide them.

     In Eddings v. Oklahoma, the Supreme Court remarked, “youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and psychological damage” 455 U.S. 104 (1982). For most juvenile offenders, this “negative influence and psychological damage” comes from an unstable family environment. In a work entitled, “Juvenile on Death Row: Case Profiles,” Shirley Dicks examined juvenile death sentences dating back to the 1970s. In her findings she wrote, “in the majority of cases, the prisoners appear to have come from particularly deprived or unstable family backgrounds.” Many of the children on death row grew up with one or no parents. When parents were present, many had problems with alcohol, drugs, and mental illness. Dicks found that “twelve of the twenty-three prisoners had been seriously physically or sexually abused in childhood. Ten [took]…alcohol and drugs regularly from an early age…others were under the influence of alcohol or drugs at the time of the crime.” Dicks also revealed “there was evidence of mental illness or brain damage in at least fourteen cases. Six…had long histories of psychiatric illness or mental disorders” (118).

     Dicks’ findings show that juvenile offenders typically witness their guardians, who should be positive role models, engaged in wrongful acts and lacking concern. In “Juveniles on Death Row,” Victor Streib wrote that in such cases, children receive the message that violence is acceptable, mainly because their parents or guardians behave violently in front of them (168). The same could be true, however, for drinking, drug abuse, and lack of respect for the law and others. To a juvenile, who is especially susceptible, these behaviors appear acceptable because their guardians perform them to solve problems. Minors also consider bad behavior accepted when their guardians fail to prevent them from committing such acts. Therefore, juveniles are not completely at fault for their criminal actions. Their families, along with the minor’s developmental stage, are partly responsible. The juvenile was raised in an environment that led him or her astray. As a result, death is not a suitable punishment. In Stanford v. Kentucky (1989), Justice Brennan wrote that it has long been recognized that the “proportionality analysis requires that we compare ‘the gravity of the offense,’ understood to include not only the injury caused, but also the defendant’s culpability, with ‘the harshness of the penalty’” 492 U.S. 361 (1989). The minor’s “culpability” does not entitle an ultimate punishment of death. An execution would therefore be cruel.

     Minors also escape full responsibility for their crimes because they lack maturity. While more common in troubled families, immature juveniles are likely to lash out at society. In Death Penalty, Don Nardo wrote “because they are still young, they have not developed the maturity required to solve problems in a reasonable, peaceful manner. When upset or angry, they strike out at people and at society in general” (65). Immaturity prevents an adolescent from making well thought out choices, which most adults have the power to do. Nevertheless, some critics refuse to believe that immaturity should entitle a ban on death for every juvenile. Nardo acknowledged the opinion of some death penalty supporters who argue that not every person under the age of 18 lacks maturity. Some children are completely capable of making good, sound judgments, and as a result, are eligible for a capital punishment (71).

     While this is true, the problem remains that most juvenile offenders are immature and many do come from troubled families. The American government and citizenry have recognized this fact and that is why they set 18 as the most appropriate age to perform responsible duties, such as voting, serving in the military, or even acting as a juror. Quoting a death penalty opponent, Glenn Bieler, Nardo wrote, “the premise behind such deprivations is that minors are not possessed with the full capacity to make individual choices…Can a state at one moment say that minors are incapable of making adult decisions, then the next moment say that minors should be held as responsible as adults for their acts?” (70). No. If all 17 year olds are generally viewed as incapable of being adults and making adult decisions, such as voting, then all 17 year olds should be exempt from severe, adult punishments. Executing a minor, who the state has already defined as lacking an adult’s ability to make mature decisions, is then cruel.

Retribution, Deterrence, Rehabilitation

     While executing juveniles is both cruel and unusual, it is also senseless in light of the three reasons why society punishes criminals: retribution, deterrence, and rehabilitation. In a work entitled, “Just and Painful: Attitudes Toward Sentencing Criminals,” Jurg Gerber and Simon Engelhardt-Geer defined retribution as inflicting “deserved punishment on people who harm society” (62). Unfortunately, in cases involving juveniles, executions are not retributive because minors do not deserve a capital punishment. In Stanford v. Kentucky, Justice Brennan stressed that retribution “depends on the degree of [the criminal’s] culpability” 492 U.S. 361 (1989). To serve as retribution, capital punishment requires full blame, which cannot be given to juveniles. Therefore, killing is not retributive; it is not deserved.

     Executing minors also fails to act as deterrence for other criminal acts. In Death Penalty for Juveniles, Victor Streib wrote that the threat of the death penalty fails to deter juveniles for several reasons. First, he explains “Adolescents are in a developmental stage of defiance of danger and death and are attracted to flirtations with death from a feeling of omnipotence” (36). Juveniles get a rush from breaking the law. They feel cool and tough among their peers. The threat of death will not stop these thrill seekers from desiring a fearless image. The second reason, according to Streib, why deterrence will not work is because juveniles “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.”  Many minors simply do not think about the results of their actions (37). Deterrence, therefore, would not work. The death penalty does not give juveniles something to worry about. As a result, in Stanford v. Kentucky, Justice Brennan commented that “because imposition of the death penalty on persons for offenses committed under the age of 18 makes no measurable contribution to the goals of either retribution or deterrence, it is ‘nothing more than the purposeless and needless imposition of pain and suffering,’ and is thus excessive and unconstitutional” 492 U.S. 361 (1989).

     In addition to retribution and deterrence, capital punishment obviously pre-empts rehabilitation. In “Just and Painful,” Gerber and Engelhardt-Geer wrote that rehabilitation aims “to train, educate, and counsel offenders to help them become law-abiding citizens” (62). Execution denies a minor the chance to approach life in a positive way, and this is unfortunate because with rehabilitation most juveniles will stop criminal activities. However, there are exceptions in which the criminals refuse to accept any form of rehabilitation. For example, Scott Hain avoided the counseling and training components of the rehabilitation process by escaping from Rader. These components are crucial for successfully restoring the criminal back to law-abiding citizens. Therefore, a criminal can change for the better if they only follow this step-by-step process. In Death Penalty, Nardo recorded the thoughts of social workers Elizabeth Lyttleton Sturz and Mary Taylor. Sturz and Taylor said:

Our experience has shown that angry, alienated teenagers can be pulled in, can be brought to the point where they not only do don’t steal and assault but have something of value to give to society. The message to these teenagers has to be: You are valuable, society cares about you. You have the obligation and the resources to reach your potential (65).

Rehabilitation can work. It can be beneficial to both the teenager and society.

     In Death Penalty for Juveniles, Victor Streib also believed juveniles could change, and that was why he strongly supported long-term imprisonment for serious offenders.  Streib pointed out that juveniles, especially those that murder, are usually “model prisoners.” They typically cease their criminal activity during and after their jail sentence. Therefore, imprisonment would not only rehabilitate the minor, but it would also specifically deter that individual from committing further crimes (37). Critics, however, could argue that executing the individual also specifically deters. This is true, but imprisonment is a more beneficial deterrent if it can rehabilitate the criminal who might then be able to use their talents and education for the good of society. Overall, imprisonment and rehabilitation are more appropriate and suitable ways to handle juvenile offenders.


     In conclusion, executing a person less than 18 years of age will not serve as retribution, a general deterrent, or a method to rehabilitate. It is an unnecessary practice, serving only as a “cruel and unusual” punishment. The punishment displayed cruelty by the fact that juveniles generally lack the maturity, reasoning, understanding, and experience needed to make good and well thought out decisions. Many juvenile offenders also come from troubled families, which usually have negative effects on these highly susceptible adolescents. A person under the age of 18, therefore, cannot take total blame for their crimes. Their high susceptibility, lack of development, and positive influence are partly responsible. Executing a juvenile is then cruel because the punishment is not proportionate with the culpability of the defendant.

     In addition to “cruel,” the capital punishment is also “unusual.” Percentages indicate that through out America’s history, juvenile executions were always rare when compared to adults. The same remains true for today. Over recent years there has been a steady decrease of juries sentencing juveniles to death. Meanwhile, there has been a steady increase of protective death penalty statutes, states avoiding the execution of persons under 18, and disapproval expressed by respected organizations, institutions, and admirable people. Finally states have continued to use juvenile courts, which are structured to protect children from harsh punishments. This reluctance, disapproval, and avoidance in executing juveniles ultimately cause capital punishment for juveniles to be “unusual,” and so in my opinion, it is unconstitutional.

     Unfortunately, while executing persons under 18 seem to be “cruel and unusual,” it continues today to be constitutional. Currently, the Supreme Court has only recognized that minors under the age of 16 are protected against the punishment of death in Thompson v. Oklahoma 487 U.S. 815 (1988). Juveniles who are sixteen or seventeen can still face execution. This hopefully may change, however, within the year 2004.  In Trop v. Dulles, the Supreme Court stressed that courts must be directed by “the evolving standards of decency that mark the progress of a maturing society” 356 U.S. 86 (1958). Recently, this “maturing society” has been more cautious and strict with who they believe is entitled to the death penalty. For example, in 2002 the Court in Atkins v. Virginia ruled that the death penalty for the mentally retarded, who generally lack reasoning and understanding, is unconstitutional 536 U.S. 304 (2002). In this case, the Court acknowledged that the mentally retarded lack full responsibility for their actions and that it is very difficult to know with certainty if the person did have enough maturity and reasoning to be held completely liable for their crimes. Obviously, the reasoning offered in Atkins is very similar to arguments offered by supporters of banning juvenile executions. Therefore, there is a good possibility that in the fall of 2004, when the Court will hear a case questioning the constitutionality of executions for juveniles under the age of 18, they will rule that the punishment does violate the 8th Amendment. Until that time, 16 and 17 year olds can still be put on death row. As a matter of fact, in “The Juvenile Death Penalty Today,” Victor Streib wrote, “As of June 30, 2003, approximately 75 persons were on death row for juvenile crimes” (1). For the sake of these death row inmates, the Supreme Court will hopefully realize the cruelty and unusualness of this punishment.

Works Cited

Atkins v. Virginia, 536 U.S. 304 (2002), 260 Va. 375, 534 S.E. 2d 312.

Bedau, Hugo A., The Death Penalty in America. Chicago: Aldine Publishing Company, 1967.

Cullen, F.T., Golden, K.M. & Cullen, J.B. “Is Child Saving Dead? Attitudes Toward Juvenile Rehabilitation in Illinois.” Journal of Criminal Justice, 11 (1983): 1-13.

Death Penalty Information Center, “Age Requirements for the Death Penalty and the Execution of Juveniles.” 2004.

Dicks, Shirley. “Juveniles on Death Row: Case Profiles.” Young Blood: Juvenile Justice and the Death Penalty. Ed. Shirley Dicks. New York: Prometheus Books, 1995. 117-157.

Streib, Victor. “Juveniles on Death Row.” Young Blood: Juvenile Justice and the Death Penalty. Ed. Shirley Dicks. New York: Prometheus Books, 1995. 167-175.

Eddings v. Oklahoma, 455 U.S. 104 (1982).

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

Gerber, and Englhardt-Geer, Simone, “Just and Painful: Attitudes Toward Sentencing Criminals.” Americans View Crime and Justice: A National Public Opinion Survey. Eds. Flanagan, and Dennis R. Longmire. California: Sage Publications, 1996. 62.

Gregg v. Georgia, 428 U.S. 153 (1976).

International Justice Project. “Scott Hain: Juvenile Offender in Oklahoma.”

Lockett v. Ohio, 438 U.S. 586 (1978).

Nardo, Don. Death Penalty. California: Lucent Books. (1992).

Roberts v. Louisiana 431 U.S. 633 (1977).

Stanford v. Kentucky, 492 U.S. 361 (1989).

Streib, Victor L. Death Penalty for Juveniles. Indianapolis: Indiana UP, 1987.

Strieb, Victor L.  The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes January 1973 – September 30, 2003 (2003).

Thompson v. Oklahoma 487 U.S. 815 (1988).

Trop v. Dulles, 356 U.S. 86 (1958).

Wilkerson v. Utah 99 U.S. 130 (1879).



Atkins v. Virginia, 23

Bradford, William, 5

Cruel, 14-19, 22

Deterrence, 20-21

Eddings v. Oklahoma, 11, 17

Eighth Amendment, 2

Electrocution, 6

Franklin, Benjamin, 5

Furman v. Georgia, 7

Graunger, Thomas, 7-8

Greeley, Horace, 5

Gregg v. Georgia, 7, 10

Hain, Scott:

Crime and Death, 1
Early Life, 15-16

Haughton, Scott, 1, 16

History of Death Penalty, 2-7

America, 3-7
England, 2-3

Humane Methods of Execution, 6

Jury Sentencing, 12

Juvenile Courts, 8-9

Lambert, Robert, 1, 16

Legislative Attitudes, 12-13

Lockett v. Ohio, 11

Maturity, 15-19

Minimum Age for Death, 13

Reform Movement, 4-6

Rehabilitation, 21-22

Retribution, 19-20

Roberts v. Louisiana, 10-11

Rush, Dr. Benjamin, 4

Sanders, Laura, 1, 16

Stanford v. Kentucky, 18

Supreme Court and Mitigating Factors, 10-11

Thompson v. Oklahoma, 23

Trop v. Dulles, 23

Unstable Family, 15-18

Unusual, 7-14, 22-23

Wilkerson v. Utah, 7

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