EDDINGS v. OKLAHOMA

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ORAL ARGUMENT OF JAY C. BAKER, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Eddings against Oklahoma.

Mr. Baker, you may proceed whenever you are ready.

Mr. Baker: Mr. Chief Justice, and may it please the Court, having been certified for trial as a juvenile within the Oklahoma juvenile justice system, Monty Eddings was convicted on a plea of nolo contendere for the murder of an Oklahoma highway patrolman, an offense he committed at the age of 16 years, four months.

This Court granted certiorari to determine whether the imposition of capital punishment on a 16-year-old youth is cruel and unusual punishment prohibited by the Eighth Amendment.

Unidentified Justice: Was that the question, or was the question whether one who was 16 years and four months at the time of the act?

Mr. Baker: The question is actually phrased as a 16-year-old youth.

Unidentified Justice: How old is he now?

Mr. Baker: He would be about 20 now.

This happened in 1977.

Twenty years of age.

Because of the treatment of the case by the Oklahoma Court of Criminal Appeals and by the state in its brief, one special point should be made.

We are not here talking about accountability or criminal responsibility.

I concede to the state their right to fix the age of criminal responsibility.

The state in essence asked for that latitude which they receive under the due process clause under the Eighth Amendment.

It is our position this is a very narrow issue, the imposition of the death penalty upon a 16-year-old child.

Whatever age the state wishes to fix for relinquishing children to the adult court system, I grant their power.

There is in my argument one assumption.

That assumption is that there is an age somewhere below which it is cruel and unusual punishment to put a child to death.

The question is, what is that age?

In Gregg, this Court stated that death is a punishment unique in its severity and irrevocability, different in kind from any other punishment imposed, and indeed it is.

In subsequent cases such as Lockett and Woodson, the Court stated it is necessary to focus upon the particular character of the defendant to determine if the punishment is proportionate to the offense and to the person.

This Court has on innumerable occasions acknowledged youth as a most mitigating circumstance.

In fact, in every instance in which the Court has made reference to mitigating factors or given examples of them, youth has been in there.

Unidentified Justice: Well, the Oklahoma court allowed and focused on youth as a mitigating factor here, did it not?

Mr. Baker: That is another problem in the case.

The trial judge made the finding that he was precluded by Oklahoma law from considering as a mitigating circumstance the background of the defendant.

He did consider youth, but he made the statement that he could not consider anything else, and of course, we think that is in violation of Lockett.

Unidentified Justice: Counsel, wasn't the statement that he couldn't consider the violent background of the youth?

Mr. Baker: Yes.

Unidentified Justice: I am not sure what that meant.

Did that mean the whole background, and is that how the Court of Appeals treated it?

Mr. Baker: I understand it to mean, and the Court of Criminal Appeals obviously did, the history of the boy in the juvenile system, the burglaries, the fight he was in, his trouble with his parents, being bounced from one home to another home.

Unidentified Justice: If that is true, if that is what the court meant, and then did not consider it, I guess the Lockett case was decided shortly afterwards.

Do we have to then consider remanding on the basis of having the court consider these other mitigating circumstances in your view?

Mr. Baker: That would certainly be one solution.

Lockett would mandate a remand.

Unidentified Justice: If we were to do that, then I guess we would not reach the issue of the age limit problem for an execution.

Mr. Baker: That is true.

The Oklahoma Court of Criminal Appeals in considering that issue merely made the statement that the juvenile knew right from wrong.

Therefore, he can be put to death.

They begged the question.

They used the McNaughton test of sanity to determine whether or not a juvenile could be put to death.

Unidentified Justice: Lockett was decided in 1978 and the Court of Criminal Appeals opinion came down in 1980.

Why wasn't that raised in the Oklahoma Court of Criminal Appeals?

Mr. Baker: That was an inadvertent error for which I take full responsibility.

It should have been raised.

But under the Oklahoma statute, it was incumbent upon the court to consider these mitigating circumstances anyhow.

The Oklahoma statutes provide for automatic appeal, and they state certain findings the appellate court must make to affirm any sentence of death, and among those is a comparison of other cases and the consideration of mitigating circumstance.

Our court just didn't do it.

Unidentified Justice: They certainly wrote language that they thought complied with the state requirement.

Mr. Baker: I don't see how they could think such, especially their interpretation of especially atrocious and cruel.

They gave such a broad standard there that--

Unidentified Justice: Well, do you think simply pulling over and shooting a highway patrolman who thinks he is stopping you for a traffic stop with a sawed off shotgun is not atrocious and cruel?

Mr. Baker: --Going back to Godfrey, the crime was a horrible crime.

Any murder involves some element of being atrocious.

Any murder involves an element of being cruel.

The crimes for which the death penalty can be imposed are those that are especially cruel, and Mr. Godfrey walked up to a mobile home and shot two people.

I don't see any distinction between that and this.

Unidentified Justice: Wanton gets into the equation, does it not?

Wanton, mindless kind of action also enters that equation, in the atrociousness or heinousness of it.

Mr. Baker: I would concede that, and also the element of torture is what the court focused on.

Unidentified Justice: There is no torture suggestion here.

Mr. Baker: No.

Unidentified Justice: Do you question that it was a mindless, wanton act?

Mr. Baker: No, I don't question that.

I don't try to defend the crime.

I address myself to the defendant.

It was a horrible crime.

Unidentified Justice: But you are really focusing only on the one issue, and that is age, isn't it?

Mr. Baker: That's age.

Age and the background which produced this unfortunate product of our society.

This Court has--

Unidentified Justice: What is your alternative solution, so far as the state of Oklahoma is concerned?

That he be confined for life under the care of psychiatrists and psychologists for 15 or 30 years, as one of them testified that might enable them to rehabilitate him?

Mr. Baker: --My suggestion is that he be given a life sentence.

Unidentified Justice: Why should the taxpayers have to foot that bill?

Mr. Baker: I would suggest, Your Honor, that would be cheaper than putting him to death.

Unidentified Justice: From the taxpayers' point of view, I don't think it would be.

Mr. Baker: There has been an enormous amount of money spent up to this point.

There is going to be a lot more spent.

I have read figures before on the cost of executing someone.

It is much more than putting them to death.

Unidentified Justice: Well, it is more because of the litigation.

Mr. Baker: Precisely.

Unidentified Justice: Well, it would be cheaper just to shoot him when you arrested him, wouldn't it?

Mr. Baker: Yes, much cheaper.

Unidentified Justice: Counsel, I am concerned, if we are talking about setting a fixed age standard, with the position that you would then have to take.

For instance, an immature, impulsive 18-year-old would then be subject to the death penalty, but you would oppose it, I suppose, even for a very sophisticated or mature young person under the age.

Mr. Baker: Yes.

Unidentified Justice: You put yourself in a very difficult position when you fix an age limit that is arbitrary.

Mr. Baker: The question assumes that we can measure maturity.

There are no good tests for measuring one's maturity.

In fact, it is difficult to define maturity.

Studies in fact suggest that at about the point of 15 or 16... I am referring to studies by Renn, Colberg, and Turrell which are mentioned in our brief... there is a regression during the years of stormy adolescence.

When the kids start to develop into adolescence, are subjected to these pressures, they actually regress in terms of making judgmental decisions.

Further, any such testing like that would subject the cultural minorities to the death penalty because the tests are biased against them.

My position is that we grant them measureable exposure to living, to the life experience before we hold them accountable as adults.

I suggest the age of 18 because that is the age accepted universally, and it has constitutional significance, too.

Unidentified Justice: Don't some 20 odd states not require the age of 18, but say, youth may be considered as a mitigating circumstance below that age, but is not an absolute bar?

Mr. Baker: There are 24 states, I believe, that Provide that youth is to be considered as a mitigating circumstance.

Six states state boldly, we will not execute anyone under the age of 18.

Unidentified Justice: Well, under the test of the evolving social mores that this Court has stated on times for cruel, unusual punishment, if you've got six lined up against 24, you can't really say that you have a majority on your side, can you?

Mr. Baker: It is my suggestion, Your Honor, that we judge these evolving standards by not the availability of capital punishment but by its use.

In our history, and things today show without question that this country just has not excecuted children.

It has been 1948 since a 16-year-old was executed.

Unidentified Justice: Well, on that basis you would say that we should declare the death penalty statutes unconstitutional in general.

Mr. Baker: As applied to youth.

Unidentified Justice: Well, as applied to anybody.

How many people have been executed in the last ten years?

Mr. Baker: In the last ten years?

None that know of.

Unidentified Justice: Three.

Mr. Baker: One involuntary execution.

Unidentified Justice: One involuntary.

On your basis, then, there should be no death penalty statute sustained.

Mr. Baker: I don't think we can--

Unidentified Justice: If you are going to go by the use.

Mr. Baker: --I don't think we can consider the last ten years, because of the problems we've had with the death penalty in a legal sense.

I am going back to 1864, and we just don't have a history of executing children.

Of course, there is no death penalty anywhere in western Europe now.

Unidentified Justice: How many of the states that permit the execution of 16-year-olds... I think there are 20 some... weren't all those laws recently enacted, re-enacted after their in effect validation by--

Mr. Baker: By Furman, yes.

Unidentified Justice: --Yes.

And so they have been re-enacted.

Mr. Baker: Yes.

Unidentified Justice: All of them.

Mr. Baker: I believe almost all of them, yes.

Unidentified Justice: And so they are recent judgments of these 20 some states.

Mr. Baker: Yes.

But in that vein, I do not see... these laws merely have provisions that relinquish children to the adult justice system.

I don't see in a legislative judgment the decision to transfer children from the juvenile system to the adult system as tantamount to a judgment that we are going to put them to death.

Unidentified Justice: But Justice White's question was, the laws permitting execution of people under the age of 18, not just simply remanding them to the adult court system.

Mr. Baker: Your Honor, these statutes don't specifically state that we are going to execute people under 18.

The state enacts its death penalty statute, and then they jump over to another volume of their code to juvenile justice, and without even thinking of the death penalty, they say, hey, there are certain children that we can't take care of in our juvenile system, we are going to let them go to adult court.

But that decision to certify or relinquish jurisdiction to the adult court then makes them theoretically subject to the death penalty.

Unidentified Justice: And actually, as this case demonstrates.

Mr. Baker: Yes, sir.

Every state in the country has a juvenile justice system.

Our law over the past 100 years has learned to treat children differently than we do adults, because they are a different kind of person.

Unidentified Justice: Well, many states allow an option to the courts to decide whether a juvenile will be prosecuted as an adult or under the juvenile system.

Is that not so?

Mr. Baker: That is correct.

Oklahoma, for example, as most other states, has provisions for transferring a juvenile from the juvenile system to the adult system.

Unidentified Justice: That is usually on the basis of the kind of crime committed, is it not?

Mr. Baker: No, Your Honor.

It is on the basis... for example, in Oklahoma, they can transfer him merely because he has an adult co-defendant, to save money.

There are eight reasons for which they can pass them.

Only one either directs itself toward the defendant or toward the crime.

Unidentified Justice: Counsel, isn't one of the factors spelled out under Oklahoma law for consideration as to whether to transfer them to the adult court for prosecution the maturity of the individual?

Mr. Baker: That is the sixth standard, yes.

Our court has stated that they can be transferred without any finding that they are mature.

As a matter of fact, in decisions which are mentioned in the amicus brief, our point is specifically stated, that immature defendants can be transferred.

But it is not a jurisdictional prerequisite.

It is one ground upon which the transfer can be made.

The history of juvenile jurisdictions or juvenile executions in this country show that much like rape, is a punishment imposed upon the blacks.

For example, Georgia has executed 40 juveniles.

Unidentified Justice: Well, your client isn't a black.

Mr. Baker: No.

Unidentified Justice: Well, then, why do you have standing to raise that?

Mr. Baker: It just goes to the inherent vice of the execution of children.

The inherent cruelty of it.

Monty Eddings is white, but Georgia has executed 40 people; they had one white.

Florida has executed 13 juveniles, all black.

Virginia has executed 24; only three white.

It is the same pattern throughout the country.

It is the people who are poor, and the minorities who are affected by this.

Let us not think for one minute that I would be standing here today if in Sapulpa, Oklahoma, I had had some money.

If I could have brought in good psychiatrists for this boy, good psychologists, I wouldn't be here today.

He could have bought his way out of it, in spite of the crime.

But as the record shows, we worked with volunteers, we worked with state psychologists.

It would appear that there have probably been 100 persons under 18 executed since 1864.

Only 13 of those were 16 or under.

Thus, my point is, our experience has shown that there has been one terrific decline in juvenile executions.

Since the forties, there have been only five under 18, all black, incidentally.

At the time of Furman, there were only 14 on death row out of 620.

Those, incidentally, were under 20.

We don't have statistics on how many of those were under the age of 18.

I would suggest there were probably very few at the time of this Court's decision in Furman that were under 18.

We go up to, as this Court as suggested, to capital juries, to see what they are doing.

As of October 20th, there were 891 on death row in this country.

Seventeen, or 1.9 percent, are under the age of 18.

Eleven are black.

The point is, to take the language of this Court, the extreme rarity with which the death penalty is imposed upon children.

The chance of execution for a juvenile is too attenuated to have any significance served our criminal justice system.

Unidentified Justice: Well, but aren't you talking about the situation that exists before Proffitt and Jurek and the 1976 cases that said, capital punishment was permissible under certain given standards?

Mr. Baker: The figures I have just noted are current figures.

These are capital juries since Gregg.

Since Furman, I should say, but since the Gregg statute was approved.

There are currently 891 on death row at this time.

Seventeen of them are juvenile.

The point is, the percentage is so small that it can't have any measureable contribution to our criminal justice system.

Unidentified Justice: But if it were raised, it might.

Mr. Baker: If what were raised?

Unidentified Justice: The percentage.

Mr. Baker: Of youths, you mean?

Unidentified Justice: Yes.

Mr. Baker: I suppose, if the country ever got to the point where it could accept it, and would do it, it could, but the thing is, it just is something we haven't done.

Judges, juries have found more reasons for not convicting young people, or for showing mercy.

They are set out in our brief, but you frequently see a jury refuse to convict merely because of youth.

Unidentified Justice: Well, the Oklahoma judge here had a perfectly... he said that he gave strong consideration to the youth as a mitigating factor, but that he just couldn't balance it in favor of the youth compared to all the aggravating circumstances.

Mr. Baker: That was his statement.

Of course, he didn't consider anything other than youth, and it was our effort to show that aside from youth there were other strong mitigating circumstances that led Monty Eddings to end up on the Oklahoma Turnpike that day.

It was almost like we had him programmed for this event to occur, had him raised by a stepfather who is a policeman, who beats him, and having the policeman killed, you know.

We send Monty back to his father.

Being the product of a divorce.

As the record shows, an alcoholic, often streetwalking mother.

A father who is an inconsistent authoritarian, and all this coupled with adolescence and psychological testimony which shows clearly--

Unidentified Justice: Now you are arguing the discretion of the judge.

The issue here is only a mathematical issue of 16, is it not?

Mr. Baker: --I would suggest there is also the issue that the Court faced in Godfrey, Oklahoma's interpretation of its statute.

Unidentified Justice: Well, Mr. Baker, you wouldn't be making this argument if this boy were the son of the finest family in Oklahoma.

You would be making the same argument wouldn't you?

Mr. Baker: I would be making the same argument for any 16-year-old.

Unidentified Justice: What is the difference about this alcoholic mother and all?

Mr. Baker: It is my suggestion that there are mitigating circumstances, that there are other circumstances besides youth that mitigate the imposition of capital punishment in this case.

Unidentified Justice: I thought Four position was that under no circumstances ever did a person who committed a murder at the age of 16 when the act was committed could suffer the capital punishment.

I thought that is the narrow issue that we had.

Mr. Baker: That is Proposition One.

That is the narrow issue, Your Honor.

I just superimpose upon that the particular circumstances of this particular defendant.

Unidentified Justice: Well, you do have a second question in your brief that whether or not you prevail on your 16-year-old argument, that the case should be remanded.

Mr. Baker: Yes.

Unidentified Justice: Because of what you call a plain error.

Mr. Baker: Because of the Lockett violation, and because of the other mitigating circumstances.

Otherwise, the imposition of the death penalty in this particular case.

Unidentified Justice: Do you have a case where we have ever recognized what you call a plain error coming from a state court that wasn't raised or litigated below?

Mr. Baker: There is one cited in the brief.

I don't have it off the top of my head.

Unidentified Justice: Do you think then that the Court should under Lockett, although the trial Judge allowed all of this testimony to come in, nonetheless, re-evaluate for itself whether or not the mitigating circumstances outweighed the aggravating circumstances?

Mr. Baker: I would welcome the Court doing that.

There are two ways you can read Godfrey.

One way would indicate that is what the Court did in Godfrey.

That is not the way I read it.

I read Godfrey as just saying the lower court gave too broad an interpretation to the death penalty.

Unidentified Justice: Well, certainly Proffitt and Gregg and Jurek simply said if the states set up these systems which were subject to the safeguards that were incorporated in them, they were entitled to impose capital punishment.

Mr. Baker: If the statutes are properly construed, yes.

There are, I suggest, many reasons why 18 should be the point below which we don't impose capital punishment.

The Twenty-Sixth Amendment of our Constitution.

The American Law Institute in their model penal code has a provision that absolutely forbids execution of any juvenile under the age of 18.

All European countries which still retain capital punishment have an absolute prohibition against the execution of anyone under the age of 18.

President Carter has signed the International Covenant on Civil and Political Rights, which prohibits the execution of defendants under the age of 18.

Unidentified Justice: Mr. Baker, are you talking now about execution at the time of execution or time of the offense?

Mr. Baker: The time of the offense.

The American Convention on Human Rights, also signed by President Carter, has an absolute prohibition against the execution of juveniles.

Unidentified Justice: But that was never submitted to Congress, was it?

Mr. Baker: It was submitted and is still there, as far as I know.

Unidentified Justice: But never ratified.

Mr. Baker: It has not to this date been ratified.

I mention it only to show that the current thought in Europe and apparently in South America is that execution of juveniles is barbaric.

There is no longer a western European country with even capital punishment, but of the eastern European countries that have capital punishment, they all forbid the execution of persons under the age of 18.

Unidentified Justice: Perhaps they don't have a Constitution like ours that affirmatively authorizes the death penalty, but places no limit on it.

Mr. Baker: No country has a Constitution like ours.

Eighteen is also the age at which people can be drafted, be married, drink alcohol, be subjected to involuntary subscription into the service.

Unidentified Justice: The second question that you have in your brief, whether the Court should address the plain error--

Mr. Baker: Yes.

Unidentified Justice: --I don't find it in your petition for certiorari.

Mr. Baker: I believe it is there.

It has been a long time since I read the petition for cert.--

Unidentified Justice: I know it is in the brief.

Mr. Baker: --I think we should make a distinction, too, between a certified juvenile and an adult.

The mere fact that Monty Eddings or any other child is certified for trial in the adult court system does not make him an adult.

He is still a child.

I see us as we are striving in our development, where we will reach a point some day where I don't believe that capital punishment will be tolerated at all.

Probably not in my lifetime, but as we march in this progress, as we strive to become better, I urge that we not regress to the point where we execute children.

Unidentified Justice: Well, would you consider the so-called march that you have referred to from Furman to Proffitt and Jurek and Gregg as a march in the direction that you are talking about?

Mr. Baker: Quite honestly, Your Honor, I believe we are worse off now than we were before Furman.

Much worse off.

Unidentified Justice: It is apparent from your argument that you do.

Mr. Baker: We are much worse.

That is my own personal opinion.

But before Furman, we had a situation where in the courtroom where I am from that decision was the jury's.

They couldn't pass the buck to anybody.

Whether the defendant lived or died was up to the jury.

Now, we give them standards.

We tell them, the law says, you know, if you find such and such, you will consider putting the defendant to death.

It lets them pass the buck, so to speak, to the legislature.

I think we are worse off than we were at the beginning.

That is what I see in the courtrooms from the part of the country I come from.

And prosecutors use these standards to suggest to the jury that, yes, you've got to consider it now.

If you find one, find an aggravating circumstance, and it is not balanced by a mitigating circumstance, kill him.

Unidentified Justice: Would you just simply prefer the unbridled discretion that the Court found unconstitutional in Furman where the jury just says who lives and who dies?

Mr. Baker: I agreed with Furman at the time it was decided.

With the benefit of hindsight, I would prefer going back to the way we were before Furman.

But my hindsight is always 20-20.

Unidentified Justice: You have a lot of company.

Mr. Baker: I would just like to make one statement, and that is, the only purpose I can see in executing a 16-year-old child is pure and simple retribution, vengeance, and I don't think society's lust for vengeance is strong enough that we have to start killing our children.

Unidentified Justice: Well, didn't Proffitt say retribution was a proper motive for a state to--

Mr. Baker: And Gregg said it was.

Unidentified Justice: --Yes.

Mr. Baker: But I am talking about narrow channeled retribution toward our youth.

When they are 21, 22, 23, the Court has approved it.

Unidentified Justice: Well, in Oregon against Mitchell, four members of the Court said they didn't think that a distinction between 21 and 18 could survive an equal protection analysis.

Mr. Baker: That's true, in the light of evolving standards.

But we are talking about a 16-year-old, and we are talking about capital punishment.

Unidentified Justice: Mr. Baker, are there any decisions around the country that agree with you on this point?

Mr. Baker: There are statutes.

Legislatures agree with me.

Unidentified Justice: No, decisions.

Are there any decisions you know of that declare unconstitutional a statute that authorizes capital punishment for a 16-year-old?

Mr. Baker: I am not aware of any decisions.

Unidentified Justice: But there are some that disagree with you in several states.

Mr. Baker: I am aware of one from Arizona that disagrees with me.

Unidentified Justice: Georgia.

Louisiana.

Mr. Baker: Louisiana, yes.

I am not familiar with the Georgia case.

I know there is a Kentucky case that is on appeal within the Kentucky system.

We would ask the Court for consideration to reverse the case for the imposition of a life sentence upon Monty Eddings.

Chief Justice Burger: Very well.

Mr. Lee?

ORAL ARGUMENT OF DAVID W. LEE, ESQ., ON BEHALF OF THE RESPONDENT

Mr. Lee: Mr. Chief Justice, and may it please the Court, the facts of this case reveal that the Petitioner in this case, Monty Eddings, was 16 years old at the time he intentionally murdered an Oklahoma highway patrol trooper, a man by the name of Larry Crabtree, with a sawed-off shotgun as the trooper approached the vehicle which Mr. Eddings had been driving.

The murder occurred after Mr. Eddings announced to the other members of the car that he would blow the trooper away if he hassled him, then loaded the sawed-off shotgun, waited as the trooper approached, and fired the shotgun, striking him in the heart from a distance of approximately six or seven feet.

The issues in this case are, Number One, whether the United States Constitution prohibits a state from imposing a penalty of death in every case involving a person who was under the age of 18 at the time of the commission of the crime without a consideration of the circumstances of the offense and without a consideration of the character and record of the individual defendant.

The Petitioners also raise the question whether or not the punishment imposed in this case, the penalty of death, by a person who was 16 years old at the time of the commission of the crime for the crime of the intentional murder of a law enforcement officer is disproportionate, in violation of the Constitution.

The state contends that the adoption of a chronological age as the sole determinative factor in making the decision as to whether to impose the penalty of death to the exclusion of all other considerations has support neither in reason nor in the previous decisions of this Court.

We submit that under the facts and circumstances of this individual case, that Oklahoma's decision to impose the death penalty upon the Petitioner who intentionally murdered one of our law enforcement officers does not violate the Eighth Amendment.

Unidentified Justice: General Lee, before you get into your argument too far, I would like to ask you about the very first premise that your opponent suggested, and I don't know whether it is right or not, but he said something to the effect that everybody would agree that there is some minimum age that you can't go below.

The question is, what is that age?

In other words, would you deny that there is any minimum age?

Should you execute, say, a ten-year-old or a nine-year-old?

Mr. Lee: Well, first, of course, our contention is that should be... if there is going to be a chronological age limit, it should be a legislative decision.

Unidentified Justice: I mean, is there any constitutional barrier, is what the question is.

Mr. Lee: I feel like that this Court should never have to answer that question.

This Court, in Barker versus Wingo, was asked to set the six-month period of time within which a defendant had to receive a speedy trial.

It declined to do so, stating that its approach in setting fixed lines like that must not be... cannot be rigid.

Instead, it set forth four factors which must be considered.

I feel like that is the approach that the Court has used in the Woodson case and--

Unidentified Justice: Well, let's hope we never have to answer the question as to a nine or a ten-year-old, but I guess in England there were times when very, very young people were executed.

Would you say there is any constitutional limit on the age of a person that could be executed?

Mr. Lee: --I don't know what that age would be.

Unidentified Justice: I am not asking you what the age is.

I am asking you if you think there is any constitutional limit.

Specifically, say, would it be constitutional for a state to execute a ten-year-old for committing this crime?

Mr. Lee: If the individual was ten years old, would assume that the objective factors would not support the imposition of the death penalty.

Unidentified Justice: Well, that is not my question.

If you don't want to answer it, of course, I can't force you to, but do you have a view on a proper answer to my question?

Mr. Lee: Okay.

Yes, Your Honor.

I think it would be cruel and unusual punishment to impose the death penalty on an individual who was ten years old.

Unidentified Justice: And if that was the only mitigating circumstance in the case?

Mr. Lee: I think that looking at that 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.

Like I say, I don't think the objective factors which the Court used in striking down Georgia's death penalty, when it noted that Georgia was the only state in the union that imposed the penalty of death for the crime of rape... I think that in that case it could look toward the 50 states and see that a very small minority of states would impose a penalty of death.

Also, I don't anticipate that Oklahoma will ever be in that position.

I am glad of the fact that we only have one individual on our death row that is in this position, and I would hate to be in the position of arguing, look, we've got a number of juveniles on death row, that shows that it is not cruel and unusual punishment to do so.

I think we have been... the cases cited by the Petitioner have shown that we have been very careful in making that decision, and have not abused our discretion.

However, the facts in this case support our decision to impose the death penalty, considering the victim and the character and record of this individual defendant.

We urge the Court to uphold the punishment of death in this case.

We ask the Court to recognize that we have covered and followed our own certification procedures very carefully in this case.

We have found that under our statute on certification, the test being if the individual is able to make a distinction between right and wrong and is to be held accountable for his acts in accordance with eight specific guidelines.

We think the evidence supports--

Unidentified Justice: General, what about the ten-year-old that knows the difference between right and wrong?

Mr. Lee: --Well, there are a number of other guidelines that the sentencer would have to take into consideration.

There are eight specific guidelines, and sophistication and maturity are one of those guidelines.

Unidentified Justice: I just didn't want you to get too far off on that road.

You might find trouble.

Mr. Lee: Well, certification statutes in general are an admission by the state that there is a certain time in life when we don't know whether an individual should be held accountable for his actions.

As this Court noted in Breed versus Jones, an overwhelming number of jurisdictions in this country have certification procedures.

So does the federal government.

And we think that if we admit that we are not able to make that decision on every 16-year-old person, as long as we followed our statute in that regard in this case, which we think we have, as long as the sentencer has found one or more aggravating circumstances, pursuant to our death penalty statute, in order to guide him in his discretion, as long as he has taken age to be a mitigating circumstance, as he did in this case, we feel like the death penalty should be upheld.

In the case of Bell versus Ohio, this Court reversed a conviction of a person who was 16 years old at the time of the commission of the murder.

It said that the Ohio statute was incorrect because it prohibited the sentencer from taking into consideration such things such as the age of the defendant, but this Court in that decision did not in any way suggest or imply that the age of the offender, Mr. Bell in that case, would be considered to be anything more than one of several mitigating circumstances.

We ask that this Court's decision in that case and in Lockett, and Woodson not be extended to completely bar the execution of persons who were 16 years old at the time of the commission of the crime without a consideration of their background, character, and the circumstances surrounding the individual offense.

We believe that the adoption by this Court of a chronological age below which the state could never go in imposing the penalty of death would create an arbitrary and artificial line in the determination of the death penalty.

As I stated earlier, by analogy, this Court, when requested to adopt a six-month guideline within which a defendant in a criminal case should receive a trial under the mandates of the speedy trial provision of the Sixth Amendment, this Court declined to do so, setting forth factors for the trial court to weigh and consider in making a determination whether the speedy trial provision of the Sixth Amendment had been violated.

We feel like the determination by the state as far as the accountability and responsibility of a criminal defendant, if anything, is a much more complex decision.

Furthermore, as we have stated in our brief, we contend that the legislatures in this country should be allowed to respond to sociological and technological changes which may occur in their society, and to recognize that younger people in this country are becoming mature at an earlier age.

We feel like the state should be allowed to react to the increase in and the horror of juvenile crime, and to impose the penalty of death in a proper case.

We think that the record in this case is Oklahoma's best record that the penalty of death should be imposed.

The facts as I have stated earlier reveal a murder which by all standards and definitions was an intentional one.

It was undertaken with malice aforethought, which is required by our statute.

We have an individual defendant who at the time of the commission of the murder by all accounts was not under the influence of drugs or alcohol.

He is an individual who the other occupants of the vehicle attempted to persuade him not to shoot the trooper as he approached the car.

This includes three people in the car who were younger than the Petitioner, two 14-year-old people and a 15-year-old person.

They all testified they tried to stop him from killing the trooper as he approached the car.

He is an individual who, according to the testimony of the four expert witnesses on the subject of his mental status who testified, according to none of them was he insane or psychotic.

All the doctors testified that he knew the difference between right or wrong, that he was not mentally ill.

Even in his own... even his own expert witnesses... he had a psychologist who testified, and he contended that his problem was the fact that he had an antisocial behavior problem.

He was a sociopath.

Both the psychiatrists that testified for the Petitioner stated that he was not the victim of parental abuse.

Dr. Gagliano, who testified... who was the psychiatrist who testified on behalf of the Petitioner stated that he knew the difference between right or wrong at the time he pulled the trigger, but that it did not apply to him.

He said that there was something wrong with Mr. Eddings' personality, but there was nothing wrong with his mind.

He also testified, as did the other psychiatrist, that there was no thinking disorder, no psychosis, and that he knew the difference between right or wrong, as I stated.

Also, the testimony of his juvenile probation officer from the state of Missouri, Steven Dorn, testified, "Monty is sharp".

He stated he was an individual of average intelligence.

In addition, we have an individual who expressed absolutely no remorse for what he did.

This was evidenced by statements he made to the other law enforcement officers in jail after he was arrested.

He stated at one point,

"If you don't turn out this light, I will shoot you just like I... I have already shot one of your people and I will shoot you, too, unless you turn out that light."

He made the statement immediately after the murder to two law enforcement officers,

"I have already killed one of your people, I will kill you, too, if I get out."

Unidentified Justice: And all this was before the Court?

Mr. Lee: Yes, Your Honor.

This was... those particular statements were what the sentencer used in his determination that the defendant was capable of criminal acts of violence in the future.

That was one of the aggravating circumstances which were found.

Unidentified Justice: Mr. Lee, the trial court... there was no jury in this case, as I understand it.

The trial court held that the only mitigating factor he could consider was the age of the defendant.

He therefore did not consider in determining that the sentence should be death the family background of this 16-year-old, nor his extreme emotional disorder, nor the other circumstances possibly relevant to the commission of the crime.

Is that the general law in Oklahoma?

Mr. Lee: Well, Your Honor, the law in Oklahoma, according to our statute, is that the sentencer is to consider any mitigating circumstances which the defendant might have to offer.

Unidentified Justice: So that any mitigating circumstances could have been considered?

Mr. Lee: Yes.

Unidentified Justice: Do you think it was error not to have considered those that I mentioned?

Mr. Lee: No, Your Honor.

Of course, I have read that statement many times, and I might note, as Justice White pointed out, that it was not raised in the petition for certiorari.

It was raised for the first time in the brief, I think.

Unidentified Justice: It certainly was argued.

The opinion of the Oklahoma Supreme Court acknowledges that.

Mr. Lee: Yes, they said that his... I think the statement that the trial court made was that he would not consider the Petitoner's violent background.

Unidentified Justice: Are you saying that issue was not brought here, even though it was considered in the court in Oklahoma?

Mr. Lee: One of his propositions was that the defendant should not receive the death penalty because of his background.

That was one of the issues he raised, and the Court of Criminal Appeals said that the family background of the Petitioner was useful in explaining why he behaved the way he did.

It does not excuse his behavior.

So I suppose indirectly they dealt with that particular part of it.

But in answer to your question, I think the remark is ambiguous.

It could be interpreted to mean that he was not going to consider the juvenile's previous juvenile record in Missouri, which was extensive, although it was not anything approaching what he did in this particular case.

It could mean, and I think... my interpretation of it is that the trial court did not consider the fact of his family background as a mitigating circumstance.

He listened to evidence.

He allowed him to introduce into evidence anything he wished, but the violent background, which I assume he meant was... I believe his juvenile officer testified on one occasion Eddings had washed the walls and his stepfather came home and slapped him around a little bit, and then he was subject to some slapping around and some beating by his father.

I think that should be weighed with the fact that his own two expert witnesses said that he was not the victim of parental abuse.

Now, I think that if he was the victim of parental abuse to the fact that it causes some mental retardation or psychosis or something like that, that might--

Unidentified Justice: I have trouble with no abuse.

Slapping around is not abuse?

Mr. Lee: --I don't think that is what we normally consider to be severe child abuse.

Unidentified Justice: What do you consider slapping around to be?

Mr. Lee: I don't... well, for one thing, he was 14 years old before he went to live again with his father.

Unidentified Justice: Well, what do you consider slapping around to mean?

Abuse or not?

Mr. Lee: Well, I don't consider it to be the kind of severe--

Unidentified Justice: Just a little bit of slapping.

Mr. Lee: --Well, I think there are different degrees of slapping around, and I don't think this is the--

Unidentified Justice: There surely are.

Some of them you kill.

Mr. Lee: --That's correct, and I think if there is abuse which affects an individual to the point which he is psychotic, mentally retarded, where it directly causes an extreme emotional disturbance which this Court said may be a circumstance that might accompany the killing of a police officer... I think that was in Roberts versus Louisiana... that is--

Unidentified Justice: Does the record show these were isolated incidences, or a general pattern of behavior in that setting?

Mr. Lee: --Well, the juvenile officer said that the beatings were inconsistent, or the slappings around, or... I think he said slappings, beatings.

I believe that's what he stated.

They were not to the extent where he stated that he noted the Petitioner coming in with any marks on him.

The Petitioner's own sister said that she had never seen any marks on the Petitioner.

Mr. Dorn, the probation officer, said that he had never... there was nothing in his file to indicate that he was a victim of parental abuse.

So, in defense of what the judge said, this individual was a product of a middle class background.

He was an individual who came from a broken home, but in order to consider what happened to him to be mitigating, I think probably you would have to consider the backgrounds of most criminals to be mitigating, and he was just not legally convinced that this provided a legal excuse for what the Petitioner did.

Going back to the lack of the Petitioner that is also reflected in the examination that was conducted at the state's request at the state mental institution, the psychiatrist there stated that the Petitioner showed no remorse at any time for what he had done.

We contend that the only fact in this record that is mitigating in the Petitioner's behalf is his age.

If he was not 16 years old, this would be nothing more than a cold-blooded murder of a law enforcement officer for no legal justification whatsoever.

This Court in Roberts versus Louisiana noted that there are circumstances that might attend the killing of a police officer which might be considered to be mitigating.

The Court listed youth, the absence of any prior convictions, the influence of drugs or alcohol, and I am quoting here,

"an extreme emotional disturbance or the existence of circumstances which the offender reasonably provided a moral justification for his conduct."

However, here--

Unidentified Justice: Counsel, is it your position then that there is no circumstance in this case that could have constituted a mitigating circumstance other than the youth?

Mr. Lee: --That is our position.

Yes, Your Honor.

Unidentified Justice: Your state appellate court or supreme court said, there is no doubt that the Petitioner has a personality disorder, and you would say under no circumstances could that be a mitigating circumstance?

Mr. Lee: A personality disorder, and I believe they talked about it being in terms of antisocial personality or the fact he is a sociopath--

Unidentified Justice: Well, it says, he stressed his family history, in saying he was suffering from severe psychological and emotional disorders, and that the killing was in actuality an inevitable product of the way he was raised, and then the Court says, there is no doubt that the Petitioner has a personality disorder, then concluded that that did not excuse the offense in any way, but is it your view that could never constitute a mitigating circumstance?

Mr. Lee: --That would be our position.

The man is a sociopath.

Dr. Gagliano said that there is nothing wrong with his mind.

What is wrong is with his personality.

And as we pointed out in our brief, he demonstrated all the characteristics of a sociopath, and even his own psychiatrist admitted that he had an antisocial personality.

This is a lack of development in some aspects of his personality, and it is demonstrated by his inability to express remorse, impulsiveness, inability to respond to punishment, which this Petitioner demonstrated, and apparently it showed up very clearly, according to the observations of all psychiatrists.

No, we don't think that the fact that a person is a sociopath should be considered to be a mitigating circumstance.

We don't think--

Unidentified Justice: Mr. Lee, would you argue also that his lack of maturity should not be considered, his lack of development, or his lack of maturity?

Mr. Lee: --That is a characteristic--

Unidentified Justice: You would say just the chronological age is a mitigating circumstance?

Mr. Lee: --Well, as was pointed out earlier, that is one of the guidelines, sophistication and maturity.

But sociopaths--

Unidentified Justice: I think it was also noted that the Court doesn't have to make the finding of maturity, just whether he knew right from wrong.

Mr. Lee: --Well, it makes a determination of right from wrong based on those eight guidelines, and that is Guideline 6, and the certifying judge in this case specifically dealt with that specific guideline.

He noted that the Petitioner was in the tenth grade, but physically he appeared to be much older than the way he was.

Unidentified Justice: Should that in your argument be the possible mitigating circumstance, or just the chronological age?

Mr. Lee: The lack of maturity?

Unidentified Justice: Yes.

Mr. Lee: I think that sociopaths generally, no matter what age, are going to display immature conduct.

They are irresponsible, and certainly the act of murder is certainly an irresponsible and immature act, and our court has specifically said that emotional maturity is not something that the court needs to specifically find in a certification proceeding.

I don't have that listed in my brief, but it is in Shurfield versus State, 511 Pacific Second.

And I don't think the state should be required to show that a killer is emotionally mature, because probably he is not going to be, and certainly a sociopath is not going to be.

Unidentified Justice: I am just asking whether that should be one of the mitigating circumstances that the Court must consider.

Mr. Lee: I would argue against it.

I would say as long as he is not psychotic, as long as his thinking is ordered, as long as he knows the difference between right or wrong, as long as he is of average intelligence, he is not suffering from mental retardation, and as long as the state has properly made a certification finding, then he... that should not be a mitigating circumstance, the fact that he doesn't respond to values in society like the rest of us do.

Unidentified Justice: That is the McNaughton rule.

Mr. Lee: Well, it is the McNaughton rule according to eight guidelines.

Unidentified Justice: It is still the McNaughton rule.

He mentioned it, didn't he?

Mr. Lee: Yes.

Well--

Unidentified Justice: The judge was guided by the McNaughton rule.

Mr. Lee: --Yes.

Well, that is in our statute, and the Court of Criminal Appeals noted that that is the test of criminal responsibility in Oklahoma, is the difference between right or wrong, the McNaughton rule.

Unidentified Justice: And that determines it all.

You don't have to worry about anything else, do you?

Mr. Lee: Well, I think it is a little bit more sophisticated when we are talking about whether to certify a juvenile as an adult than whether to determine whether or not a person is insane or not.

In Oklahoma, the test to determine insanity is the right versus wrong test.

Unidentified Justice: Which is the McNaughton test.

Mr. Lee: Yes, Your Honor.

Yes.

Unidentified Justice: I thought that's what I asked you.

Mr. Lee: Yes, sir.

Unidentified Justice: Well, in effect, if this Court were to hold that all sociopaths were not to be executed, I suppose we would be right back to where we were right after Furman, because people who are well-balanced and stable or even approaching well-balanced and stable don't take sawed-off shotguns and shoot police officers, do they?

Mr. Lee: Well, there is something wrong with his personality.

I agree to that.

But that is all there was.

He was a sociopath, and he was a young sociopath, but a sociopath according to all the testimony, and we don't think that... I mean, if we get to the position of saying, if you are a sociopath, that might give you a break in whether or not you receive the death penalty or not, I don't think that is what we want to do.

I don't think that is what was envisioned by this Court when it said extreme emotional disturbance in Roberts versus Louisiana.

I don't think that this Court ever intended to require a sentencer who is looking at a person who has murdered a police officer to say, well, I am going to consider the fact that you are a sociopath in making this determination whether you receive the death penalty.

I think the sentencer should consider other things, and the sentencer in this case specifically considered his age, but that's the only thing that I think legally should have been considered.

Unidentified Justice: Mr. Lee, may I ask you for a clarification of your answer to Justice O'Connor's question?

She asked you if emotional immaturity would be a mitigating factor, or the maturity of the individual, and I think your answer said no, provided he has average mentality and lots of other qualifications.

But supposing his mentality is that of an average 14-year-old instead of a 16-year-old, and his other general indicia of development as a mature person also were characteristic of a 14-year-old.

Would that be relevant in your view?

I mean, as a mitigating circumstance, not as an absolute bar to execution.

Mr. Lee: I think if he is of lower intelligence, I think that should be considered--

Unidentified Justice: And other factors that a psychiatrist might say determine maturity in general, if they are also more characteristic of an even younger person, would they also be relevant?

Mr. Lee: --Such as?

Unidentified Justice: Well, the ability to behave properly in a school room, and the ability to obey his parents, all sorts of things.

I don't know what... I mean, I am not a psychiatrist, but I suppose there are ways they decide whether a man... well, I will put it this way.

One of the criteria in your statute for trial as an adult is whether the person has sufficient maturity.

What are the characteristics that the judge uses to decide whether the man is mature?

Mr. Lee: Well, like I say, in this particular case, he used the fact that he was in the tenth grade.

He also mentioned the fact in his certification order that he appeared to be much older than a tenth grade person.

Those were the two specific things that the certification judge in this case used in making that decision.

Unidentified Justice: Supposing those two factors had cut in the other direction against his chronological age?

Would they not be relevant, in your judgment?

Mr. Lee: I think a sentencer, he should be allowed to look at the person physically.

I think that should be a determination in making a certification decision.

Like I say, I think that is what he did in this case.

Unidentified Justice: And in deciding on the sentence, I take it, too.

Mr. Lee: I think probably we are talking about something different in the sentence as opposed to the certification.

Unidentified Justice: Are you saying in the sentence it should be a more limited inquiry or a broader inquiry?

Mr. Lee: I think it should be limited.

I think it should be... I think the whole thrust of Gregg, and I think it is what Judge Woodson tried to comply with when he was making his statements, is guided discretion, and if this sentencer would have considered things like the fact that he got slapped around to a certain extent, I think he might have felt like he was running a foul of the mandates of Gregg and the other decisions that say, we want guided discretion in making our decision as to whether to impose the death penalty or not.

I think he felt like he wasn't completely free to consider just anything, and Footnote 12 in Lockett says that the Senator is free to exclude irrelevant factors that aren't mitigating, and I think that is probably what he was trying to comply with.

Unidentified Justice: Mr. Lee, is there a collateral remedy in Oklahoma?

Mr. Lee: He can go back on post-conviction, Your Honor.

There is a post-conviction--

Unidentified Justice: Would there be any barrier to his raising this Lockett question on state habeas?

Mr. Lee: --Well, that would be through post-conviction--

Unidentified Justice: Yes.

Mr. Lee: --or post-conviction replaced that.

Unidentified Justice: Yes.

Mr. Lee: He has to present a reason why he didn't raise it the first time around.

Unidentified Justice: Well, he could have raised it in the Oklahoma Court of Criminal Appeals, but didn't.

He did raise it.

Mr. Lee: Yes, sir.

Well--

Unidentified Justice: Well, he didn't.

He says he didn't.

Mr. Lee: --Not directly.

He really didn't directly raise it.

The Oklahoma Court of Criminal Appeals has been very lenient about considering issues which have not been raised the first time or second time.

Unidentified Justice: Well, do you think he has exhausted all his remedies in Oklahoma?

Mr. Lee: As far as federal habeas is concerned, or as far as going back and--

Unidentified Justice: Here is what the Petitioner says here.

"This Lockett error was not enumerated or argued on appeal to the Oklahoma Criminal Court of Appeals, nor was it directly addressed by that Court."

Now, could he raise it in your post-conviction procedure?

Mr. Lee: --According to the case law, he has got to give some reason why he didn't raise it initially, and I don't know what his reason was.

Unidentified Justice: Well, his reason is that Lockett wasn't decided.

Is that a sufficient reason as a matter of Oklahoma law?

Well, Lockett was decided by the time--

--By the time of the trial?

No, but it was certainly decided... it was decided at the time of the... it had been decided for two years by the time--

--On appeal, yes.

--it was decided in the Court of Criminal Appeals.

Mr. Lee: Well, the earlier cases of Roberts and Woodson, I think, also should have anticipated Lockett as well.

Unidentified Justice: Then your answer is that he could not raise it.

Is that right?

Mr. Lee: I will be arguing, if he raises it, I will be arguing against him not being able to raise it, but they have been flexible in allowing that to be raised in their post-conviction, but I would say... in answer to your question I would say that he should not be allowed to raise it unless he can show some reason why he didn't raise it to begin with.

Unidentified Justice: Well, we never know until he tries.

Mr. Lee: Yes, sir, and I will be opposing it.

Unidentified Justice: It will end up on the desk of the Court of Criminal Appeals as to whether he could raise it or not.

Mr. Lee: Yes, sir.

Unidentified Justice: I agree with you that the Court of Criminal Appeals is very lenient.

They let you bring in things that aren't mentioned any place.

So I would assume that he could have brought it in.

That is the very reason I don't think they will let you bring it in now, because he could have brought it in at the original argument.

Mr. Lee: That is probably true, but as you pointed out earlier, they did discuss it to a certain extent.

We would not want a remand of this case for that reason.

If there are any further questions.

Chief Justice Burger: Thank you.

Thank you, gentlemen.

The case is submitted.