STANFORD v. KENTUCKY

Transcript: 

ORAL ARGUMENT OF NANCY A. McKERROW, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument next in No. 87-6026, Heath A. Wilkins v. Missouri.

Ms. McKerrow, you may proceed whenever you're ready.

Nancy A Mckerrow: Thank you, Mr. Chief Justice, and may it please the Court:

Heath Wilkins, acting pro se, pleaded guilty to having murdered Nancy Allen during a robbery of a liquor store dell in Clay County, Missouri, on July 27, 1985.

At that time heath Wilkins was 16 years old.

Approximately one year later, after a sentencing hearing at which both Heath Wilkins and the prosecuting attorney recommended the sentence of death, Heath was in fact sentenced to death.

His sentence and conviction were affirmed by the Missouri Supreme Court on September 15, 1987.

The question raised in this Court is whether or not the imposition of the death penalty on one who committed his or her crime at the age of 16 violates the cruel and unusual clause of the Eighth and Fourteenth Amendments to the United States Constitution.

The answer is yes.

Given the well-recognized and fundamental differences between children and adults, the imposition of a death sentence on someone who committed a crime at the age of 16 would always offend our current and evolving standards of decency and would constitute excessive punishment since it would provide no measurable benefit to society.

Under any accepted set of rules or standards, children are not small adults.

While the varying maturity levels of the class of 16-year-olds is presented to the Court in the briefs and the Court may certainly consider that in rendering a decision, for purposes of this argument Petitioner is willing to assume that we are discussing only the most mature 16-year-olds, because even the most mature 16-year-old is still a child in every state in the United States and we as a society treat children differently than we do adults in virtually every area of life.

The people of Missouri have certainly recognized that children are different, and speaking through their elected representatives they have passed more than 80 statutes restricting the rights and responsibilities of children based solely on the dates of their birth.

Thus, in Missouri a 16-year-old child, no matter how mature he or she may be, is ineligible to vote, to serve on a jury, or to control his own business affairs or money.

The people of Missouri have also recognized that children are--

Unidentified Justice: Can they drive in Missouri at 16?

Nancy A Mckerrow: --Yes, Your Honor, they may.

Unidentified Justice: There's no distinction there?

Nancy A Mckerrow: No, Your honor.

The people of Missouri have also recognized that children are in need of the kind of care, protection and control that could never be extended to adults.

Thus, in Missouri a 16-year-old, no matter how mature he may be, can be forced to attend school.

If he works, he can be forced to turn his earnings over to a parent or guardian, he can be denied entry into pool halls or other places of public entertainment.

A 16-year-old can be taken into custody for being promiscuous or incorrigible or if he runs away from intolerable living conditions, and, if an adult decides it's in his own best interest, he can be forced to return to those intolerable living conditions.

The people of Missouri have also spoken at least tangentially on the issue of children and the death penalty.

A 16-year-old child in Missouri, no matter how mature he may be, is considered too young and impressionable to witness an execution.

As a plurality of this Court noted in Thompson versus Oklahoma last year, it would be truly ironic if the assumptions we so readily make about children as a class, the assumptions which provide the justification for each of Missouri's 80 age-based statutes, were suddenly unavailable in determining whether it constitutes cruel and unusual punishment to treat children as if they were adults for purposes of inflicting society's ultimate punishment.

Unidentified Justice: Well, what about subjecting them to not the ultimate but to prison as an adult?

Nancy A Mckerrow: Your Honor, I think the determination that a particular child needs or deserves confinement for lengthy periods of time is something that could be left to the states, but doesn't really address the issue of how young is too young to be executed.

Unidentified Justice: Well, I suppose every state will permit children to be treated as an adult for some crimes.

Nancy A Mckerrow: Yes, Your Honor.

I believe every state has--

Unidentified Justice: And subjected to exactly the same punishment as an adult?

Nancy A Mckerrow: --When the punishment is terms of imprisonment, yes, Your Honor.

Unidentified Justice: Well, do you acknowledge that life sentence without possibility of parole is constitutional for a 16-year-old?

Nancy A Mckerrow: Yes, Your Honor.

If the court determines that he is guilty of first-degree murder in Missouri, then he can be sentenced to life without possibility of probation or parole.

The distinction is the distinction between the death penalty and every other punishment available to the state, Your Honor, and I think this Court has recognized that the death penalty is a unique punishment, and it's the one that as a society we reserve for the most extreme cases.

Unidentified Justice: I take it your acknowledgement that a life sentence is constitutional is based on the premise that it is possible in some cases to determine that a sociopathic personality cannot be corrected even at the age of 16?

Nancy A Mckerrow: I don't know that I would concede that, Your Honor.

I don't know if that's the determination that's made.

Unidentified Justice: Well, then is your concession based on the premise that a life sentence is a necessary deterrent to a 16-year-old?

Nancy A Mckerrow: In Missouri there are only two alternatives once an offender has been found guilty of first-degree murder, and that is life without probation or parole or the death penalty.

Unidentified Justice: But you conceded that it is constitutional to imprison a 16-year-old for life.

Nancy A Mckerrow: Yes, Your Honor.

Unidentified Justice: And I'm asking you if it's not because personality adjustment is unlikely.

You seem to reject that.

Is it because it's a deterrent and a 16-year-old can be deterred by a life sentence?

Nancy A Mckerrow: Yes, Your Honor.

I think that this case illustrates that.

Heath Wilkins pleaded guilty and asked to be sentenced to death.

He saw life imprisonment as much more of a deterrent for his conduct than he does or did the death penalty.

Unidentified Justice: So the deterrent value of either a life sentence or a death sentence is something that a 16-year-old can understand?

Nancy A Mckerrow: I think when you're talking about deterrents for the class of 16-year-olds that life in prison probably provides a much better deterrence than would a potential death sentence.

If the concern of the Court is to avoid the appearance of subjectivity or judicial law-making, then the action to be taken is clear.

Simply bring death penalty law within the well-established American tradition of treating children differently.

There is no basis in law or logic for abandoning the deferential treatment of children when it comes to the imposition of the death sentence.

All of the objective indicators--

Unidentified Justice: Of course, you could say the same thing about life in prison I mean, I don't see how logic imposes this upon us at all.

Nancy A Mckerrow: --Well, Your Honor, I think it goes back again to the real distinction between the death penalty and every other punishment, including life without probation or parole, which doesn't irrevocably eliminate the possibility for change in a 16-year-old, even it that change takes place in a confined setting.

Unidentified Justice: How would we know the top age from your argument, Ms. McKerrow?

Is... just 16 is all you are arguing for, but would it be whatever age minority generally ends at in the states?

Nancy A Mckerrow: Your Honor, we've argued for the age limit of 17 because Heath Wilkin's was 16 at the time of his offense, and therefore we're arguing this case.

However, petitioner would agree with all of the amicus briefs that have been filed and with petitioner in Stanford that 18 is the more legitimate age at which to set this bright line.

Unidentified Justice: And why should we set the bright line at 18?

Nancy A Mckerrow: Because when the Court looks at the objective indicia of society's attitudes, 18 is the one age that has the most to commend it in terms of that's the age that is most commonly chosen for demarking the difference between childhood and adulthood.

Unidentified Justice: And suppose the states come along and raise the drinking age to 21 and raise a whole bunch of other ages.

This line, this bright line, would then move to 21?

Nancy A Mckerrow: It could, Your Honor.

That's always a potential.

The Eighth Amendment speaks of the evolving standards, and so if those standards did in fact change I guess a case could come up before the Court again in the future where this question would have to be reexamined.

Unidentified Justice: Certainly 50 years ago 21 was the dividing line on most everything, not 18.

Nancy A Mckerrow: Yes, sir, even up to 20 or 25 years ago.

I would say it's only been within the last few years that 18 has been more recognized as the age that demarks children from adults.

Unidentified Justice: Our voting age case gave that a lot of impetus.

Nancy A Mckerrow: Yes, Your Honor.

All of the objective indicators indicate that society recognizes and supports the notion that 16-year-olds are children and that by virtue of that fact alone are entitled to differential treatment from the state.

The people of Missouri have never specifically permitted the execution of 16-year-old children.

Instead, the Attorney General is asking this Court to presume that because Missouri has a transfer statute which permits children as young as 14 to be transferred into the adult court system that the Missouri legislature made a considered judgment on the issue of executing 16-year-olds.

A majority of this Court has already rejected that reasoning and should do so again.

As Justice O'Connor noted in Thompson last year, there may be many reasons completely unrelated to the death penalty why a state legislature would provide as a general matter for the transfer of certain children out of the juvenile and into the adult court systems.

One reason, which is certainly apparent in Missouri, is that the present juvenile just ice system lacks the resources and the facilities to effectively deal with violent children or to protect society against those children.

The juvenile court in this case noted that when it transferred Heath Wilkins into the adult court system.

The juvenile court stated,

"The present juvenile system of rehabilitation and confinement lacks sufficient security to deal with the perpetrator who constitutes a threat to society and there are no adequate rehabilitative facilities available to the juvenile court should jurisdiction of the above-named juvenile be retained by the court. "

However, it must always be kept in mind that transferring a child, even a violent 16-year-old, from the juvenile court system into the adult court system does not transform that child into an adult.

Thus, the 16-year-old being treated as if he were an adult is still denied most of the rights enjoyed by adults.

He can never be judged by a jury of his peers since his peers are considered too young to serve on juries.

If he becomes sick while he is in custody, the state must seek permission from his parent or his guardian before medical treatment can be rendered.

Unidentified Justice: In Missouri what is the age for service on a jury?

Nancy A Mckerrow: Twenty-one, Your Honor.

And if he is sued by his victim's family, he must be--

Unidentified Justice: I don't understand.

Age has to do with whether you have a jury of your peers or not?

Nancy A Mckerrow: --Yes, Your Honor.

Partly I would think that he would be completely denied the right to have anyone his own age on a jury, even the potential for that, since in Missouri you have to be 21 to serve on a jury.

Unidentified Justice: If I have a jury composed entirely of 21-year-olds, I have not gotten a jury of my peers?

Nancy A Mckerrow: Not necessarily, Your Honor, but it's at least theoretically possible that people your age could serve on the jury.

Unidentified Justice: I thought the Constitution doesn't require just the possibility of a jury of your peers, but the reality of a jury of your peers.

Nancy A Mckerrow: That's true.

Unidentified Justice: Is that all the Constitution requires, that you have a good shot at getting a jury of your peers?

I thought you had to have a jury of your peers.

Nancy A Mckerrow: That's true, our Honor.

Unidentified Justice: I don't think age has anything to go with that.

Nancy A Mckerrow: I disagree on that, Your Honor.

The Attorney General also asks this Court to presume that because the Missouri death penalty statute lists age as a mitigating factor that the state has made a considered judgment concerning the constitutionality of executing children.

Again, such a presumption cannot be made.

The Missouri death penalty statute also lists the extreme emotional disturbance of the defendant, or whether or not it asks the censor to determine whether or not the ability of the defendant to conform his conduct to the requirements of law was substantially impaired.

However, the fact that the Missouri legislature recognizes that the mental state of a defendant is important in sentencing can in no way supplant the constitutional prohibition against executing the insane.

Unidentified Justice: How old is Wilkins now?

Nancy A Mckerrow: He's 20 years old now, Your Honor.

Unidentified Justice: Twenty?

Nancy A Mckerrow: Twenty.

The Attorney General's argument concerning age as a mitigator must fail for the same reason.

It rests on the presupposition that 16-year-olds are in fact death-eligible and in that way begs the question before the Court.

Age as a mitigating factor is as available to the 60-year-old defendant as it is to the 16-year-old defendant, and thus tells us nothing about how young is too young to be put to death.

Finally, the Attorney General blurs the very real distinction between death and every other punishment available to the state.

The fact that a particular 16-year-old needs or deserves confinement beyond his 18th birthday in no way provides a constitutional justification for executing that same 16-year-old.

The people of Missouri have never ascribed to that argument.

Since the death penalty was reinstituted in Missouri in 1977, 16 offenders who were 16 years old or younger have been transferred to adult courts and charged with first-degree murder.

Only one, Heath Wilkins, was sentenced to death.

No jury in Missouri has ever sentenced a person to death for a crime committed at the age of 16, despite having found transferees guilty of first-degree murder.

In addition, prosecutors are much more likely to waive the death penalty in cases involving those who committed their crimes at the age of 16.

In eight of those 16 cases, the defendant ultimately stood trial for first-degree murder.

In five of those eight cases the prosecutor waived the death penalty.

Thus, in 64.5 percent of the cases involving those who committed their crimes at the age of 16 the death penalty was waived, and that compares to approximately 33 percent of the cases involving adults in which the death penalty was waived by the prosecutor.

Unidentified Justice: Well, of course that shows perhaps that juries are sensitive to this and there's no indication that they weren't sensitive in the case before us.

Nancy A Mckerrow: Your Honor, Heath Wilkins wasn't sentenced by a jury.

Unidentified Justice: But the trial court was perfectly well aware of this, as was the Supreme Court.

Nancy A Mckerrow: Of his age, Your Honor?

Unidentified Justice: Of course.

Nancy A Mckerrow: Yes, Your Honor, they knew his age.

Petitioner would argue and argues in the brief that it was never considered, never given the sort of close consideration that this Court would require before a death sentence could be entered.

Thus, juries and prosecutors, those in the best position to express the conscience of the community on issues of life and death, have rejected the death penalty as a legitimate punishment for those who commit their crimes at the age of 16.

Professional and religious leaders have also rejected the practice of executing our young, as is evidenced by the numerous groups that have filed amicus briefs on behalf of Heath Wilkins and Kevin Stanford.

In addition, two particularly relevant events have occurred since this Court's decision in Thompson.

First, on--

Unidentified Justice: Excuse me.

If it is that uniform a social feeling, presumably... I mean, the state does have a legislature, I assume, which is popularly elected which could eliminate this death penalty for 16-year-olds with a stroke of the pen.

Chief Justice William H. Rehnquist: We'll resume at 1:00.

Thank you, Ms. McKerrow.

We'll resume where we left off before lunch, Ms. McKerrow.

Nancy A Mckerrow: Since this Court's decision in Thompson v. Oklahoma, two particularly relevant events have occurred.

The first was on July 14, 1988, when the National Council of Juvenile and Family Court Judges passed a resolution opposing the imposition of the death penalty on those who commit their crimes under the age of 18.

As the amicus brief filed on behalf of the Attorneys General of 17 states in this case noted, juvenile court Judges face the problem of violent children on a daily basis therefore, that group's call for an end to the practice of executing those who commit crimes under the age of 18 lends strong support to petitioner's contention that there is a consensus in this country against the practice.

Unidentified Justice: Do you say a brief was filed in support of the juvenile judges view by 17 Attorneys General of states?

Nancy A Mckerrow: No, Your Honor.

The Attorneys General of 17 states filed an amicus brief on behalf of the State of Missouri in this case.

Unidentified Justice: I see.

Nancy A Mckerrow: And in that brief they note, they specifically discuss the National Council of Juvenile and Family Court Judges and note that the judges deal with this problem on a daily basis.

The second particularly relevant event occurred on October 21, 1988, when Congress passed the death penalty amendment to the Federal drug bill.

That amendment excludes those who commit... execution of those who commit their crimes under the age of 18, and petitioner would argue again that this lends strong support to our contention that there is a national consensus in this country against the practice of executing our young--

Finally, the international community has voiced its disapproval of executing those who commit their crimes while under the age of 18.

Heath Wilkins stands alone on Missouri's death row as the only person who committed his crime at the age of 16.

He is not there because a jury determined that he deserved the death penalty, nor is he there because the prosecuting attorney in Missouri determined that the death penalty should not be waived.

Rather, Heath Wilkins, who because of his age could not have represented himself in a civil suit, was permitted to represent himself.

He pleaded guilty and then did everything within his power to ensure that he received a death sentence, a sentence which, again based solely on the date of his birth, he would be considered too young to witness.

In Thompson, Justice O'Connor called for strong counter-evidence that the national consensus against this practice does not exist.

The Attorney General has been unable to provide such evidence for the simple reason that it doesn't exist.

All of the objective indicia of our current and evolving standards of decency indicate that society rejects capital punishment as a legitimate punishment for those who commit their crimes while children.

There is a second related but independent basis upon which--

Unidentified Justice: You say that society rejects it and yet obviously in Missouri society hasn't rejected it.

Nancy A Mckerrow: --Well, Your Honor, in Missouri the state has never specifically permitted the execution of 16-year-olds.

Unidentified Justice: Well, certainly the Supreme Court of Missouri appears to be ready to permit it.

Nancy A Mckerrow: Yes, Your Honor, they did affirm.

Unidentified Justice: Doesn't it speak for the state?

Nancy A Mckerrow: Not on this, I don't believe so, Your Honor.

I think that--

Unidentified Justice: Who does speak for the state on a question like this?

Nancy A Mckerrow: --The state legislature would be a more accurate gauge of public policy on this, Your Honor.

Unidentified Justice: And you say it simply... it passed a statute dealing with the death penalty, didn't it?

Nancy A Mckerrow: The only statute which specifically deals with juveniles and the death penalty is the one that won't permit persons under the age of 18 to witness an execution.

Unidentified Justice: But the Supreme Court of Missouri has obviously interpreted the legislative enactment to authorize execution of people under 18, has it not?

Nancy A Mckerrow: Well, Your Honor, in this case they didn't specifically address that contention.

Petitioner asked that that be addressed, but based on the fact that they did affirm Heath Wilkins' sentence, yes, Your Honor, that's probably true.

Unidentified Justice: Ms. McKerrow, you do not acknowledge... how many states have a statutory structure would apparently allow a 16-year-old to be executed, although they don't say specifically a 16-year-old may be executed?

Nancy A Mckerrow: Eighteen, Your Honor.

Unidentified Justice: Eighteen states.

And if you walk through their statutes there's nothing in it that would prevent a 16-year-old from being executed?

Nancy A Mckerrow: That's true, Your Honor.

Unidentified Justice: But what you insist upon is that the state adopt a statute that specifically says 16-year-olds may be executed, right?

That's all you will accept?

That's a pretty hard thing to expect a state to adopt.

I'm not sure I could get a state to adopt a statute that says, you know, blind people can be executed, although I can fully see how in a particular circumstance a jury might impose a sentence of death upon a blind person.

Why do you pick out the particular sympathetic factor of youth as the one that the state must set forth in les statute?

You wouldn't say that if it were a blind person convicted to death.

You wouldn't say well, you can't do it unless the state says in so many words.

Nancy A Mckerrow: Yes, Your Honor.

I think that age is more than a sympathetic factor of the defendant.

I think that when you look at this nation's attitudes towards children, which is defined by age, we have carved out a special place for those children in society as well as under the law, a place that is not shared by other what you would call sympathetic groups such as blind people.

Unidentified Justice: What about elderly people?

When... I don't recall seeing many states that have recently executed someone over 70, let's say.

Is there a national consensus that the elderly should not be executed, too, and are the laws that would permit the elderly to be executed invalid unless the state expressly says we are willing to execute people over 70?

Nancy A Mckerrow: No, Your Honor, I don't believe so.

I think what would distinguish an elderly person from a child is that the society doesn't normally consider an elderly person to be less competent than an adult, but we do make that assumption about children in this country in virtually every area of life.

And what petitioner is arguing is that assumption should be carried forward in this particular context.

Unidentified Justice: But we don't generally make it in the criminal area.

We don't.

I mean, the fact is, we don't.

We're willing to send children to prison for life even though they are 16, aren't we?

Nancy A Mckerrow: Yes, Your Honor, that's true.

Unidentified Justice: And that's okay.

Nancy A Mckerrow: But we have also an entirely separate juvenile justice system which recognizes the differences between children and adults.

And when you begin to talk about the transfer statutes you have to take into consideration the facilities and the resources available to the states, and petitioner's contention is the transfer statute more properly indicates a lack of resources and facilities than it does any sort of a judgment that children are in fact, when they commit criminal acts, adults, which I think has been not the case of how we deal with children.

Unidentified Justice: Is the transfer statute in Missouri automatic at age 16 or just discretionary with the judge?

Nancy A Mckerrow: No, Your Honor.

It's a judicial determination made by the juvenile court judge and the age if 14.

Unidentified Justice: Fourteen?

Nancy A Mckerrow: Yes, Your Honor.

Unidentified Justice: And what factors does he have to take into consideration?

Is it whether the other facilities are over-crowded?

Nancy A Mckerrow: An examination of Missouri case law on this would indicate that what the courts primarily look at in Missouri is the age of the child at the time of the commission of the offense, the seriousness of the offense, and the availability of resources and facilities within the state to deal with that child.

So that a child who is nearing the age of the end of juvenile court jurisdiction who commits a very serious offense and is deemed to need incarceration or deserve incarceration beyond, let's say, the 18th birthday then is transferred into adult courts because the juvenile courts simply don't have the facilities to deal with them.

Your Honor, at this point I'd like to reserve the rest of my time for rebuttal.

Unidentified Justice: Very well, Ms. McKerrow.

Mr. Morris, we'll hear now from you.

ORAL ARGUMENT OF JOHN W. MORRIS, III, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Morris: Thank you, Mr. Chief Justice, and may it please the Court:

The arguments presented in petitioner's brief and also by counsel for petitioner today resemble in some respects some of the arguments that might be offered to a legislature in deciding whether or not a categorical age limitation might be imposed.

But I would suggest to this Court that this Court is presented with two definite, specific, distinct issues in deciding whether or not this punishment violates categorically, for all persons at the age of 16 when they commit their murder, whether it violates the Eighth and Fourteenth Amendments to the Constitution.

The first of those questions is whether this Court can find an objective basis that there is a national consensus in opposition to the execution of those who commit murders at petitioner's age... in other words, whether this practice violates the evolving standards of decency, as it's been described.

The second question is whether... it's been variously formulated, but I understand it to be whether this punishment is categorically, for persons of this class, excessive or disproportionate to the crime committed or other factors, in particular factors regarding penological justification, whether there was any measurable penological justification for the carrying out of such sentences.

On the first of these questions, I submit that this Court's search for objective indicators is never going to be a scientific or quantitative sort of analysis, if for no other reason than because there is no absolutely and invariably reliable, objective indicator.

Even legislation, which this Court has most frequently cited, is not always going to reflect the views of the public for the simple reason that legislators don't always necessarily vote according to the views of their constituents.

They may and in many cases do vote the views of their own convictions or many other factors, and I submit that is particularly true in cases, such as those involving capital punishment, which involve questions of deep personal conviction.

But I think what can be done for this examination, although it can't be made scientific, is to apply the greatest rigor possible to examining these so-called objective indicators and seeing if they really are objective and, if so, why, and second I think to arrive at a measure of consistency in what one deems to be objective, an objective indicator of public views and what is not.

Members of this Court have pointed out on repeated occasions that this Court, just from the nature of the institution, is not inherently well suited to judge the public mind, and for that reason I think the greatest possible care should be taken in this examination.

Beginning with the subject of legislation, I would respectfully disagree with my opposing counsel.

The number of states which would permit the execution of those of petitioner's age is not 18 but 22.

They are set out in Appendix B of my brief.

Four of those 22 states make an express reference in their capital punishment statutes to the question of age.

Three of those set a categorical floor of age 16.

The fourth sets a general age of 17, but allows for specific exception to that.

Now judging from this Court's opinions in Thompson v. Oklahoma it would seem that there would seem to be basic consensus that these statutes in which the age is referred to in the capital punishment statutes are objective indicators of public view.

It would seem that the dispute comes in those remaining 18 jurisdictions, including Missouri, which have a juvenile transfer statute, a juvenile statute which sets a minimum age for prosecution, and that minimum age also serves as the age for execution.

The question as I would see it presented in Thompson is, can this Court disregard those 18 jurisdictions in judging evolving standards of decency on the theory that the legislatures in those states just simply didn't think about the subject of capital punishment when they passed those laws.

Now I submit the question... the answer to that question is no for three reasons.

First of all, we have specific evidence on the face of some of these statutes... five of the 18, to be exact... in which references are made in the juvenile statutes which we're examining either to capital punishment or to that state's version of capital murder.

I cited a particular pronounced example in my brief at pages 23 and 24, the Georgia... pardon me, the Florida juvenile statute, which is rife with references to the fact that a juvenile can receive the death penalty.

I think it's awfully difficult to justify in the face of that evidence alone a proposition that one could ignore these juvenile statutes as a whole because the legislature just didn't think about this question.

In addition to that and apart from that I would offer additional evidence, which is admittedly less direct, which is the fact that the vast majority of these legislatures, the 18 juvenile states we're dealing with, 14 of the 18, have passed statutes in their capital punishment provisions which expressly recognize the importance of a connection between the defendant's age as a mitigating factor in capital punishment.

Now I concede that none of these statutes make a reference to juvenile laws.

I've never contended otherwise.

But what I am saying is what we are encountering here is petitioner's desire to assume that the same connection between age and capital punishment was not made when the legislature passed their juvenile laws.

And I submit that that is at least a circumstantial indication that they made the same connection there.

A second major reason why these 18 jurisdictions should not be overlooked in considering evolving standards of decency is that we have not just evidence of legislative contemplation of this subject, which I have mentioned already, but also actual exposure of the public to this issue.

The sentencing of persons to death at petitioner's age is not an academic consideration in this country.

Since 1982 there have been 15 persons of that age sentenced to death in this country, of which eight were in jurisdictions with these juvenile statutes.

I think this Court has acknowledged and should acknowledge that the acts of legislators reflect their public as a general proposition, and I would submit that that phenomenon cannot be deemed to have ceased once a law is passed.

If there is a law on the books which, in the words of the plurality in Thompson,

"is abhorrent to the conscience of the community. "

I would suggest that a reasonable conclusion exists that that law is not going to be on the books very long.

Yet... and I've cited in my brief, as a matter of fact, examples in which when a person of young age, and specifically age 15, has been sentenced to death in states and there have been repeated occasions when, very quickly in some cases, there has been adjustment upward of the minimum age in that state.

Indiana, for example, sentenced a 15-year-old woman to death, and less than a year after that sentence that legislature passed a law setting the minimum age at 16.

But when you look at these eight states, not only of these states with actual experience in sentencing individuals of this age to death has made any change to its minimum age during the period I've been talking about, since 1982.

Again, it is not direct evidence, but I submit that it is one more basis for saying that we can't... we cannot presume, as petitioner desires that we presume, that these statutes are simply irrelevant to the question of public views.

Finally, I would suggest that it is simply counter-intuitive to presume that a legislature which passed a law which subjected juveniles to all adult criminal penalties somehow didn't contemplate that the death penalty was one of those penalties.

Now it's true, as was stated by justice O'Connor in the concurrence of Thompson, that there could be many reasons apart from the death penalty why a particular minimum prosecution age might be set.

But if that is the case, and unless the legislature is oblivious to the question of capital punishment, there are many ways the legislature can take that fact into account, either by adjusting the prosecution age or by setting a separate capital punishment age, as some states have done.

But I submit that in order to assume that legislatures just didn't think about this thing you must, as a necessary inference, assure that the legislature didn't even know they had a capital punishment statute.

And I submit that that is not a tenable or reasonable assumption.

For all of these reasons, the respondent submits that the dominant fact when we are reviewing the question of public views in this country on this subject is that 22 of the 36 states in this country which have a death penalty statute have authorized the sentence of death in the situation in which petitioner finds himself, for capital murders committed at age 16.

I submit that even apart from the other factors which I will proceed to discuss that on its face demonstrates an absence of a national consensus in opposition to that punishment.

I think it's a measure of the inconsistency of petitioner's position that petitioner attempts, while ignoring these 18 states which address this particular subject, attempts to rely upon statutes which have nothing to do with the subject of capital punishment or even criminal prosecution, for that matter, and I'm referring specifically to the voting and drinking and driving and so forth ages.

What I would say about those statutes are two things.

First of all, they pertain to what they pertain.

There are ages ranges in every state.

In Missouri there are age ranges all the way from 10 to 21 for different activities.

How does one possibly select one of those ages or one of those statutes and say that that statute has some pertinence to what the public feels about capital punishment?

I submit that that connection is simply not makable.

Even if... even aside from that, there is the fact that these statutes that petitioner is talking about are basically different in character from the kind of statutes we're dealing with in these cases.

In capital punishment statutes and as a general principle in juvenile statutes, we are dealing with an individualized consideration of the particular person at issue.

We are dealing with a weighing of aggregating versus mitigating factors or the factors that the juvenile statutes prescribe which require consideration of various aspects of the youth in deciding whether he should be treated... whether or not he should be treated as an adult.

That is not true of any of the statutes petitioner cites.

They are class statutes.

And inasmuch as we are already conducting in [inaudible] into these individuals, I don't see the relevance of class statutes in determining objective public standards of decency.

I don't propose to go through and discuss each and every one of the purportedly objective factors cited by petitioner, but I would like to say a few words about jury verdicts.

In this Court's decisions of Furman, and Gregg, and Coker, this Court had before it some evidence not just of the pure number of those sentenced to the punishment which was being challenged but also the proportion of that number to the occasions on which this sentence was being sought.

For example, in Gregg v. Georgia, justice Stewart mentioned in his plurality opinion that this Court had before it indications that of those cases in which a person was convicted of murder less than 20 percent were sentenced to death, and this figure was discussed as to whether it was relevant in indicating public views in support or opposition to capital punishment.

After Coker, beginning in Enmund, we begin to see for the first time a reference to the raw number of those cases in which persons are sentenced to death for the class challenged as if that number on its face has some significance, and I submit that that is not the case.

I think a good illustration comes from the facts of this case.

Again, since 1982 there have been 15 persons in this country of petitioner's age, including petitioner, who have been sentenced to death.

Now if that number comes from, let's say, 200 trials in which people of this age were convicted of a capital crime in which the death penalty was sought, then perhaps it certainly could be argued that there is a disproportionate reluctance on the part of sentencers to return a death sentence for people of petitioner's age.

If, on the other hand, that number is 15 out of 30 trials, then I don't think that argument can be tenably made at all.

Petitioner has offered no evidence of the opportunity of sentencers to consider this question.

I have no figures.

The only figures I have been able to offer concern Missouri, and in the last 12 years that Missouri has had an operating death penalty we've had 138 cases in which the death penalty has been sought after a conviction of capital murder, and only three of those involved persons of petitioner's age or younger.

Now I don't know if that can be extrapolated to other states or not, but if it can it might go a long way to explain why the number of those under sentence at petitioner's age is not very high and would have nothing to do with the proposition that those sentencers who consider the crimes committed by those of petitioner's age are reluctant to impose that penalty.

Unidentified Justice: How many executions have there been in Missouri since the reinstallation of the death penalty?

Mr. Morris: One, Your Honor.

It was this January.

Unidentified Justice: How many are on death row?

Mr. Morris: Approximately 70, Your Honor.

Unidentified Justice: It's been slow.

Mr. Morris: Yes, it has, Your Honor.

Yes, it has been very slow.

Aside from this problem in proof, I would also submit and I think members of this Court have pointed out that it does not follow, even if he could show a disproportionate reluctance of sentencers to consider or to impose sentences of death upon those petitioner's age, it has been pointed out that that is not necessarily an indication that there is an abhorrence or a consensus in opposition to this penalty.

As I pointed out, virtually every state in this country with a death penalty has recognized in its statute the importance of the defendant's age as a possible mitigating factor, and if, as seems eminently reasonable, the younger the defendant, the more important that factor, that also would explain such a disproportion and would have, again, nothing to do with the proposition that there is a national consensus against this penalty.

Unidentified Justice: General Morris, your opponent mentioned the federal statute as a new development.

Do you want to comment on that?

Mr. Morris: Yes, Your Honor.

There is... indeed, last November was passed the Anti-Drug Abuse Act of 1988, and it does include a minimum age of 18.

As has been pointed out in Thompson, there are a number of other death penalty statutes in the federal jurisdiction, and it's awfully hard to know how or where the federal jurisdiction stands in that situation.

At least in the states we have one death penalty statute or we don't have one.

It was discussed and argued in Thompson, of course, in the various opinions that this either has a general implication or it just has a narrow implication to the sort of crime that was being passed, and I can't disprove or prove either of those propositions.

That is the reason I've sort of set aside the federal jurisdiction as just being one of the legislature.

Unidentified Justice: Well, in the area that's covered, it's a narcotics statute, isn't it?

Mr. Morris: Yes, Your Honor.

Unidentified Justice: I suppose that's an area in which deterrence might be particular effective, because there are a lot of young offenders in that type of criminal activity, aren't there?

Mr. Morris: Well, yes, Your Honor.

I'm not sure that the particular acts which are covered focus on young offenders or there are a lot of young offenders in that category, because the crime, as it's set out, involves conspiracies and plots to kill law enforcement officers and I believe there's also sort of a general in the commission of drug offenses.

I don't think it follows or I wouldn't have any indication as to whether there are a large percentage of young offenders doing that sort of thing.

There certainly are a lot of young offenders in drug offenses; I agree with you.

I submit that if there is no basis for excluding the possibilities that I've mentioned... and particularly the possibility that of the relatively small number of those sentenced to death at petitioner's age is simply an expression of the reluctance to sentence people this age to death... we shouldn't be relying upon this as an objective indicator of public views.

If there is not even intuitive basis for excluding that possibility, then I submit it should not be relied upon.

Contrary to petitioner's reply brief, I don't suggest the only factor for this Court to consider is legislation.

I think other factors such as polls might be useful, although it is awfully hard to tell... I'm not sure I can say... how one can characterize a national consensus in terms of percentages.

I'm not sure it can be done.

But I do think polls might be useful as a secondary indictor is one has evidence separately of a consensus either to support or--

Unidentified Justice: Apropos of the question put from the bench to Ms. McKerrow, one would expect, if these polls were terribly accurate that eventually they would be reflected in legislation, would one not?

Mr. Morris: --Yes, Your Honor, they would.

And it's also true that if there is a public abhorrence of this there is no point in my being here or making this argument, because eventually that will be the law anyway.

And I might mention in that connection that since this case has been granted there was legislation offered in Missouri to make it a minimum age of 18 and it was not passed.

So perhaps that's one example of that.

Unidentified Justice: Did it pass either house?

Mr. Morris: Your honor, I don't know.

They tried to make it part of a bill and it was defeated, as it was removed from that bill.

But it was a categorical limitation at age 18 and it is not going to become law.

But, Your Honor, yes, if there is a national abhorrence as reflected in polls, yes, it certainly should be indicated by other indications, and also mainly in the legislature.

I also think such things as treaties can be relevance if they are ratified, for the same reason as legislation is relevant.

But what I think we cannot do and what petitioner, I believe, has done is to author a raft of so-called objective indicators without any stringent effort to consider whether they really are objective.

Justice Powell, in his opinion in Furman, I believe, quoted Justice Holmes in a previous case as saying the most delicate and grave task this court has to undertake is to review legislative choices of a legislature.

And I subject it is doubly grave and delicate, whereas there this Court is required under its cases to arrive at a view of the national mind in deriving constitutional policy.

And I submit that that sort of activity requires the most stringent care in determining that there really... the test, the objective factors that this Court is relying on really are objective.

If there isn't a national consensus against the execution of those of petitioner's age, that of course does not end the matter.

This Court has said in its cases that even publicly approved punishments may be deemed to violate the Eighth and Fourteenth Amendments if they are essentially excessive and disproportionate.

In cases involving the facts of the crime, this Court has used that to derive qualitative distinctions between those sorts of activities which are proportionate for the death penalty and those which aren't.

But this case, like Thompson, is not one of those cases.

It is a case in which we are dealing exclusively with characteristics of a defendant.

And I submit to this Court that in that context and that context alone this proportionality analysis is virtually unworkable.

Defendants are sentenced to death because of what they did, not because of what they are.

Now what they are, the kind of person they are, the kind of history they've had, is relevant to show why they did what they did and their culpability in doing what they've done.

But the core decision in sentencing is to consider what a person has done and his culpability in doing it.

The decision as to what kind of person he is is one removed from that.

To give an illustration from this case, under Missouri law in order to be found guilty of first-degree murder one must act with deliberation.

There, incidentally, is no felony murder which is a capital offense in Missouri.

Felony murder is not a capital offense.

You must act with deliberation, which is defined in Missouri law as coolly reflecting for some time in advance upon the murder.

But when petitioner focuses upon not the facts of the crime or the elements of the crime but upon the character of the defendant these facts sort of get moved away and not considered.

Part of petitioner's argument, it seems to me, is in essence that Heath Wilkins didn't deliberate.

Heath Wilkins is a youth and is impulsive.

Unidentified Justice: In Missouri do you execute insane people?

Mr. Morris: No, Your Honor, we don't.

Unidentified Justice: Well, I don't understand your argument.

Mr. Morris: No, Your honor.

Unidentified Justice: The defendant himself means nothing.

That's what you said.

Mr. Morris: No, Your honor.

Pardon me.

If I said that, I don't mean to be interpreted as saying that, no.

Unidentified Justice: I misunderstood you.

Mr. Morris: I'm sorry.

Let me clarify that since it's come up.

I am saying that the character of the defendant is relevant, but it is collaterally relevant and it mainly pertains to the kind of crime it is, to explain whether he is culpable, how culpable he is.

You don't sentence someone to death because he is a nice person or a bad person.

You sentence him because he has committed a murder and, incidentally, he did so out of full awareness of what's going on and knowledge of the consequences, or didn't, for that matter.

Unidentified Justice: I don't understand.

Are you saying... perhaps it's the same thing Justice Marshall asked that the particular character of the offender has nothing to do with the degree of culpability?

Mr. Morris: No, Your honor.

In fact, I'm saying the contrary, I'm saying--

Unidentified Justice: You keep referring back to elements of the offense.

Mr. Morris: --Not in a mechanical sense, but I'm saying that the ultimate question is, is what did he do and how culpable was he in doing it.

And certainly it is relevant--

Unidentified Justice: Well, but on that very question wouldn't you say that youth is at least a mitigating factor?

Mr. Morris: --Unquestionably, Your honor.

Absolutely.

Unidentified Justice: So then youth does have something to do with the culpability.

Mr. Morris: I'm not disputing that, Your Honor.

What I'm saying is that the center of the sentencing decision is what he did and why he did it, which includes his youth or any other mitigating factors one may consider.

But the center of the decision is that and not just what sort of person he happens to be.

When this Court--

Unidentified Justice: But you would agree... I assume everybody had agreed... that there is an age below which you would say there can't be sufficient culpability?

Mr. Morris: --Yes, Your Honor.

And, as a matter of fact, I think that can be derived and must be derived from this Court's public views determination.

In lieu of a question or perhaps not even a question, I think if one examines such factors again as legislation, I think that figure can be identified as somewhere between 13 and 14 because at age 13 we have only three states in this country which expressly authorize sentencing to death of a person that age, which puts us, it seems to me, in the ballpark of Coker.

Unidentified Justice: You mean through the juvenile system?

Mr. Morris: Yes, Your Honor.

Some of these statutes... at age 13 all of the statutes are juvenile statutes, that's correct, Your Honor.

But at age 14 the number goes up substantially, I think to nine or something like that.

But I think, the only way that number can be determined is what I'm saying, is through the public views sort of analysis.

Unidentified Justice: You don't think we could reach that conclusion even if there weren't any such statutes out there?

Mr. Morris: I'm sorry, Your Honor?

Unidentified Justice: You don't think we could reach the conclusion, that conclusion that 12 or 13 is too young, even if there were no such statutes out there?

You think that rests entirely on the existence of those statutes?

Mr. Morris: No, Your Honor.

That's really all I had to work with, because, you know, when we're cooling with persons 13 or 14 there hasn't been an execution in those cases in half a century.

There are no one on death row that age.

So the younger the age becomes in this analysis the most difficult it is to deal with because it is to thoroughly hypothetical.

The only persons on death row in this country now are, at the youngest, age 15 and that of course is in question now because of Thompson.

What I'm really saying, I'm not again intending to say that the characteristics of the defendant are not relevant, but I'm saying when this Court makes a distinction based upon the crime it is doing something, especially when it makes a distinction based upon the elements of intent, such as it did in Enmund, it is again addressing the core of the sentencing decision.

Again, an example from this case.

I mentioned that Heath Wilkins acted with, was found to have acted with deliberation.

When you ignore the details of the crime and the elements that must be proven in a crime, you are left with the sort of generalizations the petitioner offers here.

How can it be said... and I submit it can't be said... that there is no 16-year-old who cannot be deterred by the death penalty?

Heath Wilkins conducted a thoroughly rational and vicious risk-benefit analysis in this case.

He decided in advance that he was going to kill someone, and he carried out that plan with considerable rationality.

He decided in effect that killing Nancy Allen was a good bet for him because he would raise his chances of not being apprehended.

I submit it also cannot be said that there is no 16-year-old, perhaps many 16-year-old, who would not act with such awareness as to... for whom the principal retribution would not apply.

Unidentified Justice: He originally asked for the death penalty.

Does the record indicate at what point he changed his mind?

Mr. Morris: Yes, Your Honor.

He was caught, confessed, and he had not made this decision at what time.

In fact, he said he was trying to play crazy at that time.

But then probably a month or so later he was being given psychiatric evaluations and between one and the other he made this decision.

So it wasn't right after his arrest but it was at a somewhat later time.

Unidentified Justice: Well, I assume he's changed his mind again and now does not want to be executed.

Mr. Morris: Well, Your Honor, all I have is his signature on the formal pauper's form.

He does, incidentally, have a state post-conviction proceeding pending as well.

So I guess there are some inferences in that, yes.

But petitioner really doesn't try to prove that there are no people of this age for which retribution or deterrence applies.

Petitioner applies what I would suggest is the meat-ax approach.

We might... there might be a lot of people of this age who might not be sufficiently culpable and therefore we should, as a matter of proportionality analysis, say that no person of this age should be executed.

Well, Your Honors, I submit that that is not a proportionality analysis.

That is, if anything, social engineering and I really submit that a reasoning of that character really has no place in the Eighth and Fourteenth Amendments.

Thank you.

Unidentified Justice: Thank you, Mr. Morris.

Ms. McKerrow, do you have rebuttal?

REBUTTAL ARGUMENT OF NANCY A. McKERROW, ESQ. ON BEHALF OF PETITIONER

Nancy A Mckerrow: Thank you, Your Honor.

First I would like to discuss something that Mr. Morris talked about, the lack of an objective basis for choosing an age, and then later on in his argument he spoke about and everyone on the Court seems to agree that there an age below which the states could not constitutionally execute a... someone for a crime.

Petitioner would argue that all the objective indicators in the society point to that age as being 18.

When you look at the vast majority of states set 18 as the age of emancipation, the international standard is clearly at 18, the American Bar Association has chosen 18, the American Law Institute has chosen 18, the National Council of Juvenile and Court Judges has chosen 18, the majority of courts which have specifically set an age set it at 18... that is 12 states have chosen that age.

And when you just intuitively think about where it is that we draw the line between childhood and adulthood, the most common figure is in fact 18.

As to the states which don't specifically set an age limit and what he can presume and not presume from those statutes, I would point to the same statute that the Attorney General has pointed to, which is the Florida statute, and that statute states that a person, a child of any age shall be transferred up if charged with a capital crime and a person of any age, if found guilty of that crime, shall be sentenced as if that person were an adult.

So that statute doesn't tell us anything about how young is too young to be executed.

Concerning the Missouri legislation that has taken place since Thompson there was in the juvenile Omnibus Act an insertion to set the minimum age at 18.

The legislature voted to remove that without consideration.

They have simply not considered the question this term, and there is a House bill currently pending in the Missouri legislature but no action has been taken on that bill.

As far as the relevance of the other sorts--

Unidentified Justice: What do you mean when you say the legislature removed it without consideration?

Nancy A Mckerrow: --When they were about to debate the Omnibus Juvenile bill there was a motion made to just simply remove the part of that bill that would have set the minimum age at 18.

That was voted on.

That part, section of the bill was removed and it wasn't debated or considered.

Unidentified Justice: Well, you're not saying that it wasn't considered are you?

Are you saying the legislators did not consider whether or not to vote yes or no?

Nancy A Mckerrow: Yes, Your Honor.

They voted to remove that section from the bill without considering it or voting specifically on it, but only to vote yes or no to remove it.

Unidentified Justice: Well, what do you seek to demonstrate by that point?

Nancy A Mckerrow: Well, Your Honor, I'm just pointing that out to show that the Attorney General has argued that the legislatures, that it they had, if there was some strong feeling on this issue that the legislatures would in fact deal with the issue.

Unidentified Justice: And you don't feel the Missouri legislature dealt with it in the process you just described?

Nancy A Mckerrow: No, I don't, Your Honor.

I think that they are waiting for some guidance from this Court.

As far as the other sorts of class-based statutes such as voting age and setting juries, the relevance of those statutes indicates our, as a society's, attitude towards children and our belief that children are, as a class, less capable of making the sorts of mature determinations that are necessary to allow them to have the kinds of rights and responsibilities which we permit adults in the society.

And I think the Court should consider those statutes for that purpose as how they indicate society's attitudes towards children.

Unidentified Justice: Once again, as far as rights or responsibilities are concerned, you are not arguing that society wouldn't or that a state here could not send a child to jail for life, a 16-year-old to jail for life?

Nancy A Mckerrow: No, Your Honor, I'm not.

Unidentified Justice: So the child is responsible for the criminal act?

Nancy A Mckerrow: Yes, Your Honor.

Unidentified Justice: So all you are arguing here is you can do it for life but you can't execute, and that's seems to me to be, although you disclaim the argument that this is just a sympathy factor, it seems to me that that's exactly what the case is, because you hold the child responsible.

You are willing to send the child to jail for life, which you would not do an insane person.

For insane people we don't say... you just can't execute them if the person is insane at the time of the crime.

It's a defense in virtually every state, isn't it?

Nancy A Mckerrow: Yes, Your Honor.

Unidentified Justice: That's responsibility.

But you're not talking here about responsibility, it seems to me.

Nancy A Mckerrow: No, Your Honor, we're not talking about the fact that a 16-year-old child cannot act with criminal responsibility.

Petitioner's argument is that no 16-year-old can act with the level of moral culpability which should be required by a society before that person is executed, and that we require the highest level of moral culpability and responsibility before we would execute a person for a crime committed.

Unidentified Justice: I think Justice Kennedy had a question for you.

You indicated that the legislature was waiting for this Court's guidance.

Nancy A Mckerrow: Yes, Your Honor.

Unidentified Justice: But your whole argument has been that we're supposed to take our guidance from the legislature.

Nancy A Mckerrow: Yes, Your Honor.

It goes to the ability to use the legislature as some sort of a factor.

It goes back to Justice O'Connor's concurring opinion in Thompson that we can wait for the legislature to act on this, but it's petitioner's contention that what occurred in Missouri this year is that this is the sort of thing that legislators are waiting to see whether they can operate within.

They know that they are constrained by the Constitution and that it's this Court's responsibility to inform them of what the Constitution requires, and they are waiting for that.

Unidentified Justice: I see some circularity there.

Chief Justice William H. Rehnquist: Thank you, Ms. McKerrow.

The case is submitted.

Transcript: 

ORAL ARGUMENT OF FRANK W. HEFT, JR. ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument next in No. 87-5765, Kevin Stanford v. Kentucky.

Mr. Heft, you may proceed whenever you're ready.

Mr. Heft: Mr. Chief Justice, and may it please the Court.

The issue in this case is whether the Eighth Amendment prohibits the imposition of the death penalty on a juvenile who was 17 at the time of committing a capital offense.

One point of agreement for all members of the Court in Thompson v. Oklahoma is that there is some age below which a juvenile's crime can never be punished by death.

Thus, the issue in this case is not whether a line should be drawn specifying a minimum age for the death penalty, but where the line should be drawn, and the Petitioner submits that the line should be drawn at the age of 18 because it is the most objective.

It is the most justifiable.

It is the most logical line that's capable of resolving the issue presented in this case.

As the briefs in... filed in this case indicate, 18 is a very conservative age for determination as to when a person attains full maturity.

Indeed, the maturation process is a continuing one that lasts until a person is into their early to mid 20s.

Unidentified Justice: One would hope maybe even longer sometimes.

[Laughter]

Mr. Heft: Yes, Your Honor.

You're absolutely correct.

As human beings, we are simply incapable of making infallible judgments.

Consequently, our society and the legal system are imperfect.

Yet, in striving for perfection and in order to ensure fundamental fairness in the operation of our criminal justice system, jurisprudence in capital cases has consistently demanded certainty and reliability not only in capital sentencing procedures and trials, but in the outcome as well.

However, a constitutionally acceptable degree of reliability and certainty cannot be attained in a case in which the state seeks the execution of a person who is under the age of 18 at the time of committing a crime.

The uncertainty about when a particular juvenile has fully developed and has fully evolved into an adult has caused society to draw a bright line.

That line is an expression of society's confidence and society's certainty that those under the age of 18 do not possess an adult's level of emotional, intellectual and cognitive development.

And it is because of the uncertainty as to when a child actually evolves into an adult that society has drawn this bright line; the boundary has been drawn because of this uncertainty.

The uncertainty extends not only in matters as everyday life, such as voting rights or the right to sit on a jury, but certainly it extends to the area of capital punishment and sentencing.

Eighteen is that point in a person's life where society feels comfortable and confident in assuming that one is ready to assume the privileges, rights and responsibilities of adulthood.

The failure of the Court to set 18 as the minimum age for the imposition of capital punishment puts society in a position it has sought to avoid, and that is of making an error in determining when a child has actually evolved into an adult.

That risk of error we submit is simply intolerable in a capital case especially where society has chosen to err, if it does so, on the side of caution by creating a boundary between childhood and adulthood.

We simply cannot attain a sufficient level of constitutional certainty and reliability in death penalty cases unless 18 is established as a minimum age for imposition of the death penalty and thereby eliminate the risk that a child who has not evolved into an adult is exposed to capital punishment.

Unidentified Justice: And there has to be an element of... it... it's arbitrary somewhere, isn't it?

Mr. Heft: Yes, Your Honor.

There's no denying.

Unidentified Justice: If you draw a bright line, it has to be arbitrary.

Mr. Heft: That's correct.

Unidentified Justice: The day before he attains 18 he could commit his crime and not be executed.

Mr. Heft: That's correct, Your Honor.

Unidentified Justice: If he did it the day... a day later, he might be.

Mr. Heft: Our argument is that a... the person who has not attained the age of 18 certainly shouldn't be executed.

And you're quite correct.

There is an element of arbitrariness in any type of line-drawing.

It's unavoidable.

But as the Court noted in Salom v. Helm, that line-drawing is a problematical issue, it's a difficult issue, but it is one that exists in Eighth Amendment cases.

And it seems to me that notwithstanding any arbitrariness, it's a justifiable arbitrariness and it's a permissible arbitrariness because society has made that choice.

It has drawn that line in so many other aspects of our lives because the person who is 17 years old, 11 months and 364 days cannot vote under any circumstances, but a person who is 18 years old and one day can vote.

Unidentified Justice: Can he drive--

--But the difference, Mr. Heft--

--Can he drive in the commonwealth?

Mr. Heft: Pardon me, Your Honor?

Unidentified Justice: Can a 17 year old drive in the Commonwealth of Kentucky?

Mr. Heft: Yes, Your honor.

Yes.

Unidentified Justice: So, they haven't drawn it there.

Mr. Heft: No, not as far as operation of a motor vehicle, Your Honor.

Unidentified Justice: Mr. Heft, the difference in the... in the examples that you give is this.

We... we don't have a mechanism where... whereby the individual cases can be... can be individuated.

In... with... with respect to voting, for example, you don't... there's no registrar you can go before to say, well, even though you're not quite 18, are you nevertheless mature enough.

Whereas, here you're talking about the situation where a jury in every case, in fact, even before the jury, you... you have to have a judge say that this juvenile can be tried as an adult.

That determination is first made.

Then afterwards, a jury can consider the individual characteristics of this person and can say, even though this person is only 17 years and nine months, we think this person is mature enough to be held liable.

That's totally different from voting or any other area I can think of.

We have an individuating procedure in place at two stages.

Mr. Heft: But the theory is constant, Your Honor, whether we are talking about the imposition of capital punishment or criminal sanctions, and also whether or not we are talking about voting rights or the ability to sit on a jury.

It seems to me that this case is a perfect example of why individual considerations don't work, why the safeguards that are presently in place don't work.

Unidentified Justice: xxx perfect example.

For all I know, the jury considered this very thoroughly and thought this individual... although normally I personally... and I suppose most jurors... would... would not vote for... for that in... in the case of a youthful offender.

The jury, for all we know, considered this and said we think this person was mature enough.

Mr. Heft: Your Honor, let we answer this in... with... in two different ways.

First of all, the primary safeguard against arbitrary imposition of capital... of capital punishment is the introduction of mitigating evidence.

But here, as I have pointed out in the brief, that safeguard was... was hollow because mitigating evidence was excluded unjustifiably.

And the mitigating evidence that I'm talking about is testimony from a... inmate on Kentucky's death row about rehabilitation programs within the adult criminal system.

He not only knew about that information, but he had personal experience with the Petitioner before this crime occurred and after this crime occurred.

Surely that is relevant mitigating evidence, but the jury wasn't allowed to hear that.

Not only that, as I... as I've pointed out in the brief, youth as a mitigating circumstance under Kentucky's death penalty statute is also a hollow safeguard because it operates on a sliding scale insofar as it protects an individual... theoretically protects an individual who is 16.

It is also protects an individual who is 30.

The--

Unidentified Justice: You would have to be bound by your 18 year old rule even if the jury, for example, were shown evidence that this individual went around bragging I don't have to worry about the death penalty because I'm only 17 years old, 17 and 11 months, and they can't get me for another month.

Even though the jury had that evidence in front of it, or... or the jury had the evidence that this individual was selected to do the killing because this individual could not get it being one month short of 18.

This seems to me a much more arbitrary system of justice than... than the one we have now.

And you're putting this forward in the... in the interest of being more equitable?

It doesn't seem equitable to me at all.

Mr. Heft: --I think it is equitable, Your Honor, I don't think we are asking the Court to carve particularly new or novel ground.

We are asking the Court to rely on common sense, experience and what our society has... our society has made a decision that individuals who are under 18 are children.

They have not evolved into adults, and people on the other side of the line of 18 have evolved into adults.

Unidentified Justice: xxx a decision that where we have no individuating mechanism, that's the line we'll use.

But here we have an individuating mechanism, a jury that consider... can consider in each case the particular individual.

If we could do that in voting, I'm be willing to have a voting age of 13 if you had somebody that would consider each individual voter.

I can... you know, I can think of some 15 year olds I'd like to have vote and maybe some 30 year olds I wouldn't.

[Laughter]

Mr. Heft: Your Honor, with respect to the consideration that the jury might have given mitigating circumstances, there's no guarantee here what, if any, consideration they gave those mitigating circumstances and the extent--

Unidentified Justice: But that... that's true, Mr. Heft, with respect to adults.

You'll have mitigating evidence come in as to adults, and there's no guarantee that the jury gave it any particular consideration.

Mr. Heft: --Well, the... I think the answer was... was very obvious, and it was the one that trial counsel proposed in this case, Your Honor.

Trial counsel asked the Judge to acquire the jury to make specific findings as to the existence of mitigating circumstances or the absence of those circumstances.

In that way, we would at least have... be assured that the jury did actually consider--

Unidentified Justice: But your argument goes to the whole concept of mitigating circumstances in capital cases.

It's not peculiar to juvenile or 16 or 17 year old capital defendants.

Mr. Heft: --Your Honor, I... I think, as the Court stated in Eddings, that youth is not just another mitigating circumstance.

It should be the pervasive factor in a case when the state is trying to seek capital punishment for a juvenile.

It can't be treated categorically like every other mitigating circumstance.

The Court I think--

Unidentified Justice: You're asking to have it treated categorically in saying that it should be categorically ruled out.

Mr. Heft: --I'm asking... I--

Unidentified Justice: Are you not?

Mr. Heft: --Yes, that's correct.

But if the jury is to consider youth as a mitigating circumstance, it needs to go beyond the plain... the meaning... the plain words

"you are to consider the defendant's age. "

How do we know what weight the jury gave to the mitigating circumstance of youth?

Unidentified Justice: How do we know what weight the jury gives to any mitigating circumstance?

The... you can say that about any capital defendant presumably that we can't be sure that... just how the jury looked at this particular factor, but it's not peculiar to youth.

Mr. Heft: I... I think it... it's particularly special in the case of a juvenile where who the state is trying to execute.

We need to be absolutely certain that the jury takes into account all of the relevant mitigating circumstances.

We don't have that assurance in dealing with juveniles in the present... under the present system of procedural and in substantive safeguards.

They... juveniles should not be treated categorically or lumped in together with adults for all... for all purposes, particularly in capital punishment purposes.

I think that's... that's a fundamental flaw in... in the present system.

They are treated absolutely the same.

There is no distinction.

Youth is just another mitigating circumstance, and I don't think that's what the Court had intended in Eddings when it said that juries have to give great weight to mitigating... youth as a mitigating circumstance.

It's... it's a mitigating circumstance above and beyond other mitigating statute... circumstances that the... the states might proscribe.

We would... we would submit that it is constitutionally acceptable in determining evolving standards of decency to utilize 18 as the age barrier for capital punishment because of its widespread acceptance as the dividing line between childhood and adulthood.

In exempting persons under 18 from capital punishment, society has... the Court would be making a determination that is consistent with the purposes of the dividing line that is presently in place.

The objective factors that the Court has already heard in the prior arguments support the Petitioner's conclusion.

Only six states at the present time set the minimum age of capital punishment at below 18.

Twenty-six states and the District of Columbia preclude the execution of juveniles.

Unidentified Justice: Now, does that... the 26 states and the District of Columbia... does that include some states which preclude the execution of everybody?

Mr. Heft: Yes, Your Honor.

Unidentified Justice: So, how many in your list that preclude the execution of Juveniles authorize it for adults?

Mr. Heft: There are 12, Your Honor.

Unidentified Justice: So, it's 12 versus what?

Six?

Mr. Heft: Yes, Your Honor.

Moreover, international opinion widely rejects the execution of juveniles.

In the amicus brief filed by Amnesty International, it shows overwhelming support for 18 as the minimum age for capital punishment.

In the chart submitted by Amnesty International, 143 out of 180 nations rejected capital punishment for people under 18.

That seems--

Unidentified Justice: How many of those rejected capital punishment totally?

Mr. Heft: --I... I believe there were approximately 20, Your Honor.

Unidentified Justice: Twenty who had no capital punishment at all?

Mr. Heft: Yes, Your Honor.

We would submit that considering the ethnic, religious, cultural, social and political differences between the nations of the world, it seems a particularly strong, particularly objective factor in determining that capital punishment should be found unconstitutional for juveniles in this country because that age barrier that has been erected by the international community is a common bond that transcends all of the differences between nations of the world.

We would further submit that 18 is the most justifiable and the most logical line that the Court can draw.

Children evolve into adults.

The maturation process is a gradual one which gives rise to significant emotional, intellectual and cognitive development which extends into a person's 20s.

Thus, we cannot say with a degree of constitutional certainty or reliability required in capital cases that a juvenile, a person under 18, is so much like an adult that it is permissible to subject them to the death penalty.

Unidentified Justice: That's again why we have juries.

And juries sometimes won't execute a 25 year old who they think is... is... is too childlike.

That's why we have juries.

Mr. Heft: Your Honor, I... I think it makes a lot of sense not only as a matter of social policy, but of a... as a matter of constitutional law to set the age of... of 18.

Society has already created a presumption that people under 18... they are not adults.

They have not evolved into adulthood.

The maturation process has run its course.

Unidentified Justice: Once again, it has created that presumption in areas where it has no individuating procedure.

But here we have an individuating procedure.

Mr. Heft: There's less reason I think to reject that presumption in capital punishment because it seems to me that the risk of any error in a capital case is too much.

If one juvenile were wrongly executed because he or she was not... or erroneously decided to be mature, that's too much of a risk.

Unidentified Justice: If any risk of error is too much, we just better abandon the criminal law.

Nobody can guarantee perfection in any human endeavor.

You can't really mean that.

Mr. Heft: We have less perfection certainly when juveniles are subjected to the death penalty.

Unidentified Justice: Well, I... I think... I think you do mean your statement that any risk of error is too much, and... and the conclusion that leads to is that capital punishment is impermissible, which is not a conclusion we've accepted.

Incidentally, as far as those nations that... if we were governed by the other nations of the world, how many of those... that is the lineup with respect to the permissibility of capital punishment at all for juveniles or anybody else?

Mr. Heft: A number of the nations.

I'm not sure of the exact figures.

Unidentified Justice: How many... how many other besides the United States currently allow it?

Do you have any idea?

Mr. Heft: Allow capital punishment at all?

Unidentified Justice: Yes, yes.

Mr. Heft: I'm not sure, Your Honor.

Unidentified Justice: My impression is it's not very many.

Mr. Heft: That's correct, but I couldn't give you a specific figure.

Juveniles demonstrate tremendous pestilence.

They have a substantial capacity for change, intellectual development and emotional growth.

That's the true essence of adolescence.

Thus, when a juvenile is subjected to the death penalty, our society cannot be absolutely certain in terms of the constitutional reliability of imposing capital punishment that a juvenile is so irredeemable or has so much evolved into an adult that the finished product of that childhood is what is being subjected to capital punishment.

Neither can we... we be certain as human beings that the level of maturity experienced by a particular juvenile or exhibited by a particular juvenile is commensurate with that of an adult.

There's too much room for error.

Society presumes by its extensive regulations of the lives of Juveniles that they are an unfinished product and that the maturation process is still continuing.

Juveniles are still developing as persons.

They are simply... and for that reason society has determined that they are not capable of exercising the same privileges and responsibilities of adults.

We don't expect them to act as adults.

We don't treat them as adults.

And those restrictions are a manifestation that society has substantial doubt that a person who is under 18 has actually evolved into an adult because a person under the age of 18 simply has not lived long enough for society to be certain that it is dealing with the completed individual or the finished product of the maturation process.

And that's consistent with Eighth Amendment jurisprudence that requires the Court to consider the dignity of man because society must be certain if capital punishment is to be imposed that it is dealing with the finished product of the maturation process, a fully evolved and mature adult.

We can't reach that level of certainty in Juvenile cases because of the age barrier or the... the dividing line between childhood and adulthood.

Unidentified Justice: I take it it's sort of irrelevant to your argument how many states permit it and how many don't.

Mr. Heft: It's a factor certainly for the Court to consider, but that is not the be all and the end all.

That's not the end of the inquiry, Your Honor.

Eighteen--

Unidentified Justice: Largely irrelevant then.

Mr. Heft: --No, I'm not saying it's irrelevant, Your Honor.

It's a factor that the Court has identified in Enmund and Coker that it has to consider.

But the Court also noted that in the final analysis, the determination of what's... what constitutes evolving standards of decency under the Eighth Amendment is for the Court's determination guided by those objective factors.

Eighteen is the... as the minimum age for capital punishment would... would unequivocally resolve doubt in the favor of juveniles and eliminate the risk that a juvenile who has not evolved into an adult is subjected to capital punishment.

As far as the imposition of the death penalty is concerned, we would submit that it has no deterrent or... or retribution value to people under 18.

Deterrence, as we noted in our brief, is... is only remotely possible.

It's only a remote possibility as far as juveniles are concerned because of the present approximately 2,200 members or inhabitants of our country's death row, only just barely over 1 percent are juveniles.

But the reason why the deterrence rationale is inapplicable to juveniles lies beyond mere statistics and goes to what is the essence--

Unidentified Justice: What do the statistics prove at all about the death penalty being a deterrent to juveniles?

That there are only I percent of juveniles on death row... you would have to compare that to other universes surely to get anything out of it.

Mr. Heft: --It seems to me, Your Honor, that the fact that there are so few juveniles on death row reflects our society's reluctance to inflict the death penalty on juveniles.

Unidentified Justice: Well, it might reflect that, or it might reflect the fact that very... a much smaller percentage of juveniles than adults commit offenses which could be capital crimes in the first place.

Mr. Heft: That point goes precisely to why deterrence... the deterrence rationale is inapplicable to juveniles, Your Honor.

Unidentified Justice: Would you explain it?

Mr. Heft: Well, it's... it seems to me that juveniles, by virtue of their immaturity, by virtue of their age, inexperience and lack of judgment, do not appreciate the long-term consequences of their action--

Unidentified Justice: Well--

Mr. Heft: --In the same... I'm sorry.

Unidentified Justice: --That... that's certainly an argument that at least seems to move in that direction.

But I don't see how that ties to the statistics at all.

Mr. Heft: Well, the... the statistics in and of themselves, Your Honor, seem to me to... to indicate a societal response that juvenile cases are viewed differently even when the state is seeking capital punishment.

Unidentified Justice: But wouldn't you have to compare the 1 percent with the number of juvenile cases in which capital punishment could have been imposed or the number... the universe of juvenile offenders?

Mr. Heft: That... that certainly would be the ideal, Your Honor, but we don't have the capability at this point of making that type of statistical analysis.

But it still seems to me significant that when you look at the... the... who inhabits our death rows and find that only 1 percent of that population are juveniles, that's... I think that's significant in and of itself.

Unidentified Justice: Would you say the same thing if we examined death row and found that only 1 percent of the inhabitants were over 60, that the death penalty really doesn't deter people who are over 60?

Mr. Heft: Well, I... I think... my answer would be that, as far as the deterrence rationale is concerned, that applies to juveniles again because the... the difference in their emotional and intellectual development has posed--

Unidentified Justice: But then it's because of the juvenile nature that you're talking about, not because of the statistics.

Mr. Heft: --That's true in the sense that I think the statistics reflect society's recognition of the differences between juveniles and adults.

There is widespread agreement that juveniles are less mature and less responsible than adults, and that's the--

Unidentified Justice: Mr. Heft, but on the statistics, what again is the figure?

It's 1 percent of the 2,200, so there are about 24 or 25.

How many... how many juveniles?

Mr. Heft: --There are... according to Legal Defense Fund's latest publication, Death Row L.S.A., there are 31.

Unidentified Justice: Thirty-one is all.

Mr. Heft: Yes, Your Honor.

Unidentified Justice: Thank you.

Mr. Heft: There's widespread agreement--

Unidentified Justice: Of those, how many are seven... were 17 at the time of the murder?

Mr. Heft: --Twenty-three by my count, Your Honor.

The... there is... there are five 16 year olds, two 15 year olds and one is unknown.

Widespread agreement... there is widespread agreement that juveniles are less mature and less responsible than adults.

That is the reason why society has undertaken pervasive control and regulation of the juveniles lives.

Unidentified Justice: Is there widespread agreement that as a result of that, deterrence is irrelevant?

I mean, it would seem to me that if... if a young adult is... is impulsive and has poor judgment, that maybe deterrence is more important, not less.

Mr. Heft: Your Honor, I would separate the... I would not categorize juveniles as young adults.

A young adult I would categorize as someone 18 to 25, and I think our society recognizes the difference between--

Unidentified Justice: All right, a young person.

Mr. Heft: --As far as acting impulsively, that... that is trait of adolescence.

It's a trait of juvenile conduct and behavior.

And I think society--

Unidentified Justice: But why is deterrence less relevant when you have an impulsive nature?

I... I don't understand that.

Mr. Heft: --That... first of all, that's the essence of juvenile conduct.

But I think it goes beyond just simply the emotional and intellectual development of juveniles--

Unidentified Justice: It seems to me... but you're saying that juveniles can be so dangerous that therefore we shouldn't have the ultimate deterrent.

Mr. Heft: --No.

Unidentified Justice: And to me that just doesn't follow.

Mr. Heft: No, I'm not arguing that, as far as retribution is concerned, that society does not have the right to expect some type of--

Unidentified Justice: We're talking about deterrence.

Mr. Heft: --The psychiatric literature that we've cited in our brief has indicated that deterrence does not... is not a... is not applicable to juveniles because they don't... they have absolutely no fear of death.

They don't... they have no fear of death in their ordinary... ordinary lives.

It has no deterrent value to their everyday lives, and therefore would have no deterrence to criminal conduct because of the... the particular makeup, psychological makeup, of juveniles.

And I think that's all part and parcel of the lack of maturity so that an individual who is a young adult, 18 to 25, has had an opportunity and would be expected to... to be at a higher level of maturity than someone who's 17 or under.

The death penalty is society's ultimate act of despair.

When it is imposed on a juvenile, it manifests a hopelessness of absolutely no possibility of change and development which is fundamentally inconsistent with the true essence of adolescence.

That is a resiliency which is reflected in continuous growth, development and maturation.

As human beings, we are incapable of making an infallible determination that a person under 18 is so much like an adult or so far beyond the possibility of all change that he or she can justifiably be subjected to the death penalty.

Unidentified Justice: Well, I don't think that's really true.

You're saying that the death penalty is never imposed by our society except upon people who... who cannot be corrected so that they won't do it again.

Mr. Heft: I think that's a--

Unidentified Justice: I think that's just not true.

I think sometimes we execute people that you know won't commit the crime of murder again, but the crime they've committed is so heinous that society decides to impose capital punishment.

I mean, it may be the killing of a wife or some person.

You know it will never happen again, but--

Mr. Heft: --I think the inquiry has to be... go beyond the nature of the crime, whether it be heinous, atrocious or whatever, and look to the individual.

And in this particular case, there was a finding by the juvenile judge that the Petitioner was amenable to treatment.

Unidentified Justice: --Well, I understand.

I'm just... I'm just questioning your... your general proposition that... that a touchstone of whether we... our society as a whole imposes capital punishment... we only do so when the person cannot be induced never to commit that kind of murder again.

I... I just don't think so, I think, you know, if Adolf Hitler had come in and said I promise I'll never do it again, and we believed him, I think we would still impose capital punishment.

Mr. Heft: I... I think there that recognizes the distinction between juveniles and adult.

Juveniles as I've indicated earlier, have a tremendous capacity for change.

Change is expected.

It evolves through the maturation process.

And therefore that potential for change, that potential for rehabilitation is much greater in juveniles.

And therefore there's absolutely less reason or no justification for imposing the death penalty on them at such a young and tender age.

For purposes of the Eighth Amendment, it is entirely appropriate for the Court to set 18 as the minimum age for the imposition of capital punishment because it will unequivocally eliminate the possibility of executing a child who has not fully matured into an adult or who does not possess an adult's level of maturity, emotional and intellectual development and whose moral culpability cannot, therefore, be considered commensurate with an adult.

Setting 18 as the minimum age for capital punishment--

Unidentified Justice: Of course, you're... you're arguing for 365 days, aren't you?

Mr. Heft: --Yes, Your Honor.

Unidentified Justice: Three sixty-six in leaf years.

Mr. Heft: Yes, Your Honor.

But I should point out--

Unidentified Justice: That... that... that's your margin.

Mr. Heft: --We are asking the Court to draw the line at 18, Your Honor, yes,--

Setting 18 as the minimum age for capital punishment advances the... the objectives of Eighth Amendment jurisprudence, that is, confidence, certainty and reliability in the outcome of the proceedings.

And we, therefore, urge the Court to rule that juveniles under the age of 18 cannot be executed.

Thank you.

Unidentified Justice: Thank you, Mr. Heft.

General Cowan, we'll hear now from you.

ORAL ARGUMENT OF FREDERIC J. COWAN ON BEHALF OF THE RESPONDENT

Mr. Cowan: Mr. Chief Justice, and may it please the Court.

What is at stake in this case before the Court today is this Court's long-established jurisprudence of individualized consideration in matters of death penalty cases focusing on the nature of the crime aria the personal culpability of the individual.

To accept Petitioner's point of view, this Court would have to accept the notion that suddenly at age 18 individuals become sophisticated, nature and responsible as adults.

Not only does that notion fly in the face of common sense, it also flies in the face of a national consensus that does exist which is that individuals mature and grow at different rates depending upon who they are and what their individual circumstances are.

The Petitioner would have this Court draw a line, a bright line, that would exempt categorically all individuals in a certain class depending upon one factor, namely, chronological age that is not related or not directly or necessarily related to the individual culpability of the particular defendant.

This case that is before the Court today shows what a mistake it would be to shift the focus of jurisprudence away from individual culpability.

Kevin Stanford committed these crimes with deliberateness and intention, with purposefulness.

His motive was to eliminate a witness.

He was mature and sophisticated enough to sodomize and terrorize a young woman, calm and calculated enough to allow her to smoke a cigarette before executing her, and calm enough to return to the scene of the crime and steal some 300 cartons of cigarettes.

In addition, the trial judge in fact, after hearing all the evidence and considering all the circumstances before the court, made a finding... and this at joint appendix page 111... that this individual was beyond rehabilitation whether in or outside of an institution.

Unidentified Justice: Are there any scientific studies to verify that people at that age 17 are not amenable to treatment?

Mr. Cowan: Your Honor, I am not aware of any, and I think the point that is raised with respect to rehabilitation is very such the question of if someone at age 17 is amenable to rehabilitation, does that mean that someone at age 19 is not.

Clearly that also... I don't think there's any scientific basis to demonstrate that that's true, and it certainly files in the face of common sense.

Unidentified Justice: Is there a scientific basis that you can have a hardened criminal, a well-set sociopathic personality at the age of 17?

Mr. Cowan: Your Honor, I believe there is although I must say I... I cannot cite you chapter and verse as--

Unidentified Justice: None has been cited that I see.

Mr. Cowan: --Your Honor, I can only point to this particular case and this particular individual where there was a long history of going in and out of institutions providing him with opportunities to be rehabilitated.

In fact, in this particular case, the individual was in a treatment program just prior to the time of the crime.

There was testimony in the record in the... in the hearing process that some 86 percent of the people who went through that program were successfully treated.

He was one of the 14 percent apparently who was not.

To rely on an age alone... a bright line of age alone, is unlike this Court's previous decisions in Enmund v. Florida, Tison v. Arizona where, for example, the culpability... the question was based upon the personal culpability as it related to the individual's participation in that crime.

Age in itself is an imperfect proxy, if you will, or a symbol of factors that are more important such as maturation, sophistication, ability to appreciate the seriousness of the crime, and the consequences of the crime.

We all know as a matter of common experience that maturity exists on both sides of that line and sophistication exists on both sides of that bright line the Petitioner wishes to draw.

The sentencer, in fact--

Unidentified Justice: Once again, have there been any psychological studies or sociological studies that bear that out, or are you asking us to rely on... on our... on our own judgment and our own knowledge?

Mr. Cowan: --Your Honor, I think it is fair in this case to rely on your own judgment and your own knowledge and your own intuitive sense in that we know that individuals do vary at different ages.

Unidentified Justice: And I would ask the same question about the deterrent value of the death penalty so far as a 16 year old is concerned or a 17 year old.

Mr. Cowan: Your Honor, I think there is no... there's nothing that I am aware of that indicates one way or another as far as the deterrent value separating juveniles from adults.

I would only say to you that if there is a deterrent value, I see no reason why it would not apply to juveniles as well as to adults.

In particular, in this case you had a... you had a juvenile who was street wise, who had been in and out of the criminal justice system for a number of years who was capable of making the kinds of national decisions that he made in this particular case.

I believe it's important to avoid in thinking about these problems the notion of stereotypes and thinking about the average 17 year old or the average 16 year old.

What we are talking about here is the juvenile such as the one who is before us who was, in fact, the most sophisticated, who had been... had seen the various aspects of the criminal justice system, who acted with the kind of deliberation and performed the kinds of acts that he did.

Another thing I think is important to think about in determining whether a bright line is a good test is to consider that if that test is developed, it seems to me that you're writing into the Constitution a principle that will guarantee injustice, and by that I mean take the example of two individuals who both commit jointly a crime, a murder, one 17, one 18.

Let us suppose that the 18 year old is unquestionably less culpable than the 17 year old.

He didn't pull the trigger.

He didn't plan the crime, but he was there in such a way as to exhibit the extreme indifference to human life as in Tison.

The Petitioner would have this Court say that the 17 year old shall be exempt, the clearly more culpable of the two, and the 18 year old will be, in fact, put to death even though he is clearly less culpable.

Or compare... and I would suggest to you that a case like that will present itself to this Court if a bright line is drawn, and the opponents of the death penalty will be before you asking you to rule out the capital punishment for the older one on the grounds that it is freakish and arbitrary to do so.

Compare this case Stanford versus Tison.

Can we say with any degree of assurance, if we have a bright line, that the type of culpability exhibited by Stanford is less than that... or excuse me... is... is less than that exhibited by the Tison brothers in their particular case?

I think not.

Or take Jose Hyde, the original case that was before this Court, the... someone who was thought to be 17 from Georgia and then it was discovered that, no, he was perhaps 19.

Is today he any different now just because the fact happened to be discovered?

Is the crime any different?

Is his degree of culpability any different because now he is eligible for the death penalty and under Petitioner's point of view would not be?

Your Honor, as legislatures... legislatures can draw lines like this.

They can draw such lines for reasons of policy.

They can draw such lines for whatever reason they want to.

They may wish to exhibit mercy, and that is fine and that is wise and acceptable.

But the Constitution... the Constitution is an instrument of justice, not an instrument of mercy.

And I think that that is what Petitioners are asking here.

This Court has recognized in California v. Brown that very principle, in fact, where it held that a defendant did not have an Eighth Amendment right to have put before the jury considerations of sympathy and considerations of mercy.

The Petitioner seeks to convert what is, in fact, a mitigating factor, that of youth, into a constitutional prohibition.

And I see no reason why we could not talk about other mitigating factors and attempt to convert those into constitutional prohibitions as well.

Unidentified Justice: Mr. Attorney General, what do you say about the Petitioner's complaint that they weren't allowed to put on mitigating evidence?

Mr. Cowan: Your Honor, the evidence that he was not allowed to put on... the bulk of that evidence related to the witness' propose testimony of what it was like to be on death row.

And in addition, his contacts with the Petitioner were very minimal.

The trial judge in that case made a determination that the evidence was not competent and that it was cumulative.

We cannot, it seems to me, fashion or attempt to fashion a rule to tell a trial judge that you can... you have to let everything in no matter what is offered.

Surely, as a matter of constitutional law, a trial judge should be able to continue to follow the rules... normal rules of evidence, and that was what was done in this case.

Unidentified Justice: General Cowan, do you think... is it your view that Thompson v. Oklahoma is wrong?

Mr. Cowan: Your Honor, it's... I would have to take each of the positions.

I... I believe that the plurality decision was incorrect, Your Honor.

But even assuming that it was correct, I think that... that in this particular case we are talking about significant differences because in... as you recall, in Thompson v. Oklahoma, there was not a single state that had, in fact, set the line below the age of 16.

Here we have six states cut of 18 that have explicitly addressed the question where the line has been drawn below the age of 18.

In addition, Your Honor, one of the points that was very clear... clearly made in the plurality of the Thompson case by Justice Stevens was the fact that there was no state that treated 15 year olds other than initially in the juvenile process, in the juvenile jurisdiction.

That is not true with respect to 17 year olds.

Seventeen year old murderers... there are some 20 states... about 20 states who either automatically waive a 17 year old murderer to adult court or who have no jurisdiction over that at that... at that time.

So, we have an entirely different situation, it seems to me, than we did in Thompson.

Unidentified Justice: In Kentucky, how many do you have on death row now?

Mr. Cowan: Total, Your Honor?

We have approximately 34 or 35.

Unidentified Justice: And how many are under 18?

Mr. Cowan: There is... there is one.

There is this Petitioner, Your Honor.

Well, he's... was under 18 at the time that he committed the crime.

I might say while on the subject of--

Unidentified Justice: Kentucky... General Cowan, Kentucky is a state that has expressly addressed the age at which one is to be subjected to capital punishment.

Mr. Cowan: --Yes, Your Honor.

Unidentified Justice: And it had done so at the time of the commission of this offense?

Mr. Cowan: Your Honor, it's a little bit complicated, but let we explain very briefly, if I can.

At the time of the commission of this offense, Kentucky had no explicit minimum in effect.

This was in 1981 that the offense was committed.

At that time, the only effective statute on the books was KRS 208.17C which is the juvenile transfer statute.

In that statute, Your Honor, the statute very explicitly sets out that Individuals under the age of 16 who committed capital offenses... and it used the word "capital offenses"... may be waived to adult court if other factors are considered.

Five... Section 5(c) of that statute also explicitly says that once the trial judge... having had the case waived to him, once the trial judge refuses to send it back to juvenile court, then the case will proceed against that... that individual as against any other defendant.

Quite clearly, Kentucky in that statute alone demonstrated its awareness that it, in fact, it was dealing with capital offenders under the age of 16.

And, of course, we're talking about one that's 17.

At that time, also Kentucky, to be quite clear with you and quite... quite candid, Kentucky had adopted in 1980 the Unified Juvenile Code, delayed its effective date until 1982.

In that code, it said that there would be an 18 year old minimum for... for juvenile death penalty.

That was delayed.

The 1982 general assembly deferred it until 1984, and it was only in 1986 with an effective date in 1987 that Kentucky adopted a minimum age of 16.

But Kentucky now has the minimum age of 16.

At the time of the commission of the offense, there was no effective minimum in effect.

In discussing consensus analysis in trying to determine what is the best approach to determining what societal values are, the Court it seems to me has to be quite cautious in trying to reach that decision.

The Constitution shall not catch a pendulum at one and of its swing and freeze that notion into law.

The attitude in this society about youth is very such in a state of flux and has been for a number of years.

And we see movement in the various legislatures.

It is commonplace I think to... to hear people say youth are growing up so much faster today.

They're so such more sophisticated.

They're exposed to so many more types of things.

And I think common experience tell us that that is the case.

Under Gregg v. Georgia, the Petitioner has a heavy burden to demonstrate that there is a national consensus against the execution of 17 year olds.

As I have pointed out, six out of the 18 states that expressly have expressed... have... have expressly drawn a line have done so at 17 or below.

Eighteen other states allow on their face for the execution of those under the age of 18.

I believe these 18 should be counted in determining a national consensus.

But even if one were to follow the type of analysis in the plurality in Thompson or the concurrence in Thompson, I think that we have to realize that significant evidence relating to the interpretation of those 18 states' statute has been overlooked because they do, as in Kentucky's case that was in effect then explicitly recognized the notion of capital offense in those juvenile transfer statutes.

When we talk about... when we talk about consensus, we do have to at some point go beyond mere counting, and I think the Court has to consider what the particular nature of the crime... nature of the punishment is.

And it seems to me that punishment should be something that is patently offensive to the national conscience or so revolting or abhorrent or such an aberration that we can comfortably say that it is cruel and unusual under the Eighth Amendment.

If you take, for example, a case of... suppose we had a felony limit that was set in order to be tried as a felony, and every state in the Union had $300 set as the minimum for someone to be tried as a felony, but one state had $100... so it was 49 to 1... then surely It would not be unconstitutional for that one state to express... to have that $100.

We must recognize in... In doing consensus analysis, recognize the notion of federalism that is central to our... central to our constitutional scheme.

As was noted by Justice O'Connor in Tennessee v. Garner, the Eighth Amendment is not violated every time a state reaches a conclusion different from the majority of its sisters over how best to administer its criminal laws.

The Petitioner's bright line analysis I believe is further flawed, and I think these are some of the comments that Justice Scalia was getting to when looking at the question of eligibility for juries or eligibility for voting, these sorts of things.

I might point out, of course, that there is at least one very distinct age that we know that is virtually nationwide... I think nationwide now, and that's 21 years old in order to purchase alcoholic beverages.

But the point is that all these things are passed depending upon what the particular bars or what the particular circumstance is.

And as Justice Scalia noted, they are done for a purpose of administrative convenience, the 18 year olds for voting and driving and... and this sort of thing.

It would be best I think for all of us if we can make an individualized determination for voting, for serving on a grand jury, whatever it happens to be, as to who was really mature enough and sophisticated enough to be able to do that.

But clearly the transaction costs of that are too high.

But the criminal justice system... the very premise of the criminal justice system is based upon an individualized consideration of each individual.

That's what it's set up for.

That's what it is capable of doing, and that's what it should do.

And that's why we ask that it be continued in this particular case.

And I might add particularly... and this Court has recognized... in dealing with problems of crimes and punishment we're dealing with an entirely different matter than we are in dealing with things like juries... serving or a jury and voting and whatnot.

Unidentified Justice: Well, on the juries... how about an age limit or the jury?

Mr. Cowan: On serving on a jury, Your Honor?

Unidentified Justice: Yes, sir.

Mr. Cowan: Well--

Unidentified Justice: That tries the juvenile.

Mr. Cowan: --Oh, serving on a... that tries the juvenile?

Unidentified Justice: A jury of his peers.

Mr. Cowan: The age minimum?

Your Honor, I simply don't think there's any way that we can put that into a... in a matter of constitutional law by saying that people have to--

Unidentified Justice: It just happens to be the jury of your peers is a part of constitutional law.

Mr. Cowan: --Yes, Your Honor, I suppose it's--

Unidentified Justice: And this man did not get a jury of his peers.

Mr. Cowan: --Your Honor, I--

Unidentified Justice: Is that true?

Mr. Cowan: --Your Honor, I would respectfully disagree with you and say, no, it's not because I think it depends on what your definition of your peers are.

And I don't think that we should be in a position where we say that anyone under the age of 18 should be allowed to serve on... on the jury.

A national consensus does exist I believe and it... it is shown and the national consensus is that youths do, in fact, mature at different rates depending upon their individual circumstances.

And it is shown objectively by the fact that all states... all states... allow 17 year old murderers to be tried as adults.

And except for those states that have a minimum of 18 and a death penalty, they all expose those 17 year olds to their maximum penalty authorized by law.

Your Honors, in Kentucky's case, we gave full individualized consideration to Kevin Stanford, and we fully considered the matters relating to his youth and all the mitigating circumstances relating to any explanation that he might have going that would diminish his personal responsibility for the crime.

Not only was there a transfer hearing, at which a full record was developed, there was a circuit court hearing, a trial level hearing.

There was a motion on whether to retransfer him.

The grand jury reindicted him because it was not informed the first time that it had the opportunity to send him back.

And the jury itself gave full individualized consideration to him.

I would ask the Court to make a note of the instructions at joint appendix 100 and 101.

That... those instructions laid out 20 mitigating factors... 20 mitigating factors... for the jury to consider, including the fact that he was of very youthful age, he was only 17 years old, that he was led into the crime by another person, that he was emotionally immature, that because of his age, he was capable of changing, and some 16 other factors.

Every single one of the mitigating factors asked for by the defendant was granted in this case verbatim, word for word.

Kentucky also--

Unidentified Justice: General, may I get back to my other question?

Is there any principal way in which we can decide in your favor here and keep Thompson v. Oklahoma on the books?

Mr. Cowan: --Your Honor, I think... I think there... there is, and I think that it has to do with the national consensus.

If you believe there was a national consensus against the execution of 15 year olds, the evidence supporting a national consensus against the execution of 17 years olds is significantly less.

Unidentified Justice: And what about 16?

Mr. Cowan: Sixteen?

It is also significantly less although, of course, there is a difference of three states in talking about the states that have directly addressed the question.

In Kentucky's case, however... and this addresses Justice O'Connor's point... the... there was an explicit rejection of the 18 year minimum, and I think that certainly that is a matter of some note.

In conclusions, I would like to say that Kentucky gave full individualized consideration as required by the Constitution under Eddings and Lockett to this individual.

They provided, in fact, protections beyond the constitutional minimum.

The bright line test proposed by Petitioners, it seems to me, destroys a key tenet of Eighth Amendment analysis based upon individualized consideration.

The Constitution is very much an instrument of justice, not an instrument of mercy.

And finally, common sense dictates that youths mature at different rates, and that is reflected in a national consensus that youth may be treated as adults in all these various circumstances.

For the reasons we have stated, Your Honors, I would like to--

Unidentified Justice: May I just ask you one other question?

Your entire argument has been based on the national consensus aspect of the analysis.

Do you think that is the only test by which the Court should judge whether punishment is cruel and unusual?

Mr. Cowan: --Your Honor.

I am not sure how... what other way to proceed other than... because under Tropp v. Dulles, which this Court has always followed in talking about evolving standards of decency, we have to reach some determination as to what those evolving standards of decency are.

And I certainly think this Court is free to make that determination as it best sees fit.

However, I think the way of looking at objective indicia first at the very beginning is... is the most appropriate way, and particularly at legislatures, since they are the best expression we have in this Nation of the expression of the popular will.

I think it would be very difficult to determine and fashion some other type of analysis.

This Court I suppose... I don't... I don't ask you to do this, but you could commission all kinds of public opinion polls, but that certainly is not something--

Unidentified Justice: Well, did the Court use the national consensus approach prior to the capital punishment cases?

Mr. Cowan: --I'm sorry.

I didn't hear your question.

Unidentified Justice: Did the Court use this national consensus approach prior to the capital punishment cases?

Mr. Cowan: I don't believe so, not in terms, Your Honor, of trying to count states and that sort of thing.

Unidentified Justice: What do you suppose prior to this... this national consensus approach, what principal basis would there have been for putting content into these... this part of the Constitution?

Mr. Cowan: Well, I think that the--

Unidentified Justice: Or do you think there is anything?

It's strictly a matter of Gallup polls and the like.

Mr. Cowan: --Well, I... I think the Court has to look at legal history and a variety of things along... along those lines that it I believe did under Weems and Tropp v. Dulles.

I don't think... I think that's about as well as we can do if we're trying to discern what, in fact, are evolving standards of decency.

My point is with respect to those, however, that with... at least as far as juveniles are concerned, we know that society is in a state of flux with... with reference to their particular attitude about those juveniles.

We know, for example, that we have to... or I shouldn't say we know.

We have to consider new types of problems that come up in our society, whether they be problems of drugs or problems with drunken driving and this sort of thing.

And it is very... the Court must be very cautious as far as freezing into constitutional law some particular aspect that says that this is a cruel and unusual punishment.

For the reasons that I've stated, Your Honors, we ask that you affirm the judgment below.

Thank you.

Chief Justice William H. Rehnquist: Thank you, General Cowan.

The case is submitted.