There are a lot of things 17year-old boys cannot do. They are finally allowed to see R-rated movies -- which doubtlessly makes the producers of Arnold Schwarzenegger movies very happy -- but that's just about the only privilege they win upon reaching their seventeenth birthday. In the eyes of the law, they're too young to vote or get married without the consent of their parents; they can't drink or even legally play church bingo. In the eyes of the law, 17 year-old boys are still, well, boys.
Unless, of course, they are boys like Lee Boyd Malvo. Malvo is alleged to have been the accomplice of his stepfather John Allen Muhammad in sniper shootings occurring in Maryland, Washington, D.C. and Virginia during October of 2002. Last Wednesday, the Fairfax County Circuit Court unsealed an indictment charging Malvo with capital murder. This makes Malvo, at 17, an adult in the eyes of the law and eligible for the death penalty. It also makes him the latest installment in the sad history of the death penalty's application to individuals who commit serious crimes before the age of 18. This application of the juvenile death penalty should cease because -- among other reasons -- it is unconstitutional.
When considering the constitutionality of the death penalty as a form of punishment, the Supreme Court established in the 1976 case Gregg v. Georgia that the penalty had to be in accord with "the dignity of man," meaning it could not be "excessively unproportional to the severity of the crime committed." The proportionality test is used to weigh the harshness of the punishment against the culpability of the offender. In making the judgment of the constitutionality of capital punishment, courts must first consider whether the juvenile offender's culpability should be measured by the same standard as that of an adult, and then determine whether applying the death penalty to this class of offenders "measurably contributes" to the social purposes that are served by the death penalty, namely retribution and deterrence.
The application of the juvenile death penalty is part of the notion that if a minor commits an "adult crime," he can "do adult time" -- or face an adult punishment, like the death penalty. However, psychological research -- including some work on adolescents' decision-making abilities done by faculty members in the University's reputable psychology department -- indicates that although adolescents may commit adult-like acts, it is a mistake to designate them as adults in the justice system and consider them as culpable as adults for their crimes.The research indicates that adolescents' cognitive capacities, decision-making abilities and levels of maturity are not equivalent to adults' -- findings that hold true for 16 and 17 year-olds, as well as younger teenagers.
In criminal law as well as many areas of civil law, teenagers are assumed not to be adults' equals when it comes to mental and emotional capabilities, and this principle should not be abandoned for cases in which juveniles have committed serious crimes, including murder. In the 1988 case Thompson v. Oklahoma, the Supreme Court plurality observed that American history is "replete with laws and judicial recognition that minors
generally are less mature and responsible than adults." This recognition is, as the Court has held in the past, "why juveniles are not trusted with the privileges and responsibilities of an adult
and why their irresponsible conduct is not as morally reprehensible as that of an adult."
The law should consistently apply the "mens rea" requirement of criminal law -- the consideration of the offender's maturity and clarity at the time of the crime -- to cases involving juveniles. "Mens rea" is already at play in cases involving the infancy defense, the provocation and emotional disturbance element involved in manslaughter, the premeditation of murder and the insanity defense.
The other question to ask concerning the juvenile death penalty is whether it serves the purported social purposes of capital punishment: retribution and deterrence. Because juveniles essentially have diminished capacity relative to adults, it seems unlikely that the retributive goal of capital punishment is met when it is applied to juveniles. Nor is there much evidence to support the notion that the juvenile death penalty will "send a message" to other juveniles and deter them from committing similar crimes. The assumption behind the deterrence rationale is that teenagers will carry out an informed analysis of costs and benefits before deciding to commit a crime, which is doubtful, especially considering that teenagers have been shown to "live for the moment" and view risk differently than adults, putting more of a premium on the present and discounting negative future consequences.
The findings of social science seem to indicate that the way the law has traditionally dealt with teenagers -- as qualitatively different from adults -- should not be abandoned. The juvenile death penalty, however, should.
(Laura Sahramaa's column appears Tuesdays in The Cavalier Daily. She can be reached at lsahramaa@cavalierdaily.com.)
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