The Sentencing of Juveniles Today, we live in a society faced with many problems, including crime and the fear that it creates. In the modern era, juveniles have become a part of society to be feared, not rehabilitated. The basis of the early juvenile justice system was to rehabilitate and create safe havens for wayward youth. This is not the current philosophy, although the U.S. is one of the few remaining countries to execute juveniles. Presently, our nation is under a presidential administration that strongly advocates the death penalty, including the execution of juveniles. The media and supporters of capital punishment warn of the 'super predator,' the juvenile with no fear, remorse, or conscience.

Opponents of this view encourage the idea that another death is only revenge, not deterrence. We will examine the rights allotted to juvenile offenders, and the punishments inflicted upon them for violations of the law. Juvenile Transfers and Waivers For those juveniles deemed dangerous, or those that have committed a serious crime, a different process would follow their initial contact with the court. This involves the removal of the offender from the juvenile system, to be transferred to the adult criminal court. These offenders are adjudicated as an adult if certain factors are present.

The waiver to the adult court is often a critical step in receiving a harsh sentence for juveniles. Two Supreme Court cases have addressed the issue of juvenile waivers and transfers, Kent vs. United States and Breed vs. Jones. The two cases resulted in specific requirements for transfer hearings, including a) a legitimate transfer hearing b) sufficient notice to family and defense attorney c) right to counsel d) a statement regarding reason for the transfer. However, the waiver of juveniles is often criticized by experts for various reasons. 'Minors are likely to be looked upon as special persons by prosecutors, probation officers, and judges in the criminal courts. They are younger than the main population of defendants before the criminal courts... while a minor may be looked upon as a hardened criminal in the juvenile court, (s) he may be viewed as a mere innocent youngster in criminal court.

' (Abadinsky 72). Some research has shown that the transfer of juveniles is a waste of both time and money. Why? Because the offender often receives the same treatment or sentence as they would had they remained in the juvenile system. For example, New York's system has been criticized on the ground that seventy percent of juvenile offenders arraigned in adult court are waived to juvenile court. Of the remaining children who are tried in adult court, forty percent get probation; only three percent of juvenile offenders tried in adult court received longer sentences than they would have been given in juvenile court.

(Allison). There are options available when sentencing juveniles, before deciding on the ultimate sentence of death. Although, the alternatives discussed here are only applicable to less violent offenders. Traditionally, indeterminate sentencing is used in the juvenile system, which does not specify the length of the sentence, correctional officials will decide when the offender is to be released. However, due to the trend in harsh sentencing, some states have created determinate sentencing and the sentence must be served in its entirety.

Some mandatory sentences exist for serious violent offenders. However, there will be offenders we cannot identify in time, those that commit acts that cannot be attributed to a 'child. ' This group of offenders will face incredible amounts of prison time, or even pay with their life for the crime they committed. Juvenile Death Penalty The U.S. is part of only a handful of countries that allow the execution of juvenile offenders.

Currently, 38 states authorize the death penalty; 23 of these permit the execution of offenders who committed capital offenses prior to their 18th birthdays. Victor Streib in his article, 'Moratorium on the Death Penalty for Juveniles,' gives a picture of the young offenders on death row today. Almost all juvenile offenders (ninety-eight percent) sentenced to death were males. The four cases involving female juveniles were in the deep south (Mississippi, Alabama, and Georgia) and in Indiana. The thirteen very young offenders (age fifteen at crime) were scattered across ten different states. All sixty-nine juvenile offenders on death row were male and had been convicted and sentenced to death for murder.

More than three-quarters of these cases involved seventeen-year-old offenders, and two-thirds of them were minority offenders. In contrast, eighty-three percent of the victims were adults. Two-thirds of the victims were white, and nearly half were females. The paradigm case of the juvenile offender on death row is that of the seventeen-year-old African-American or Latino male whose victim is a white adult. (Streib). Debate about the use of the death penalty for juveniles has grown more intense in light of calls for the harsher punishment of serious and violent juvenile offenders, The cry for the death penalty is most loudly heard when referring to it as a deterrent.

According to Allen Kale, 'it is estimated that about 76% of the American public support the use of the death penalty as a deterrent, however that support drops to less than 9% when referring specifically to juveniles. ' (Kale). Opponents believe it fails as a deterrent and is inherently cruel and point to the risk of wrongful conviction. The constitutionality of the juvenile death penalty has been the subject of intense national debate in the last decade.

Let us examine a few of the cases that have influenced our current laws. Juveniles and The Supreme Court In the 1980's, the Supreme Court agreed to hear a case arguing whether it was constitutional to execute a juvenile (based on age) in Eddings vs. Oklahoma. Eddings was ordered to stand trial as an adult, and Oklahoma's death penalty statute provides that in the sentencing proceeding, evidence may be presented as to 'any mitigating circumstances. ' (Streib, Lexis Nexis).

In mitigation, the defendant presented substantial evidence of a turbulent family history, of beatings by a harsh father, and of severe emotional disturbance. The trial judge found that the state had proved each of the three alleged aggravating circumstances beyond a reasonable doubt and considered the defendant's youth as a mitigating circumstance, but found, as a matter of law, that he could not consider in mitigation the circumstances of the defendant's unhappy upbringing and emotional disturbance, and it sentenced the defendant to death. On appeal, the Court of Criminal Appeals of Oklahoma affirmed the sentence of death, finding that each of the aggravating circumstances alleged by the state had been present and agreed with the trial court that only the fact of the defendant's youth was properly considered as a mitigating circumstance (616 P 2d 1159). The court avoided specifically answering this question but did rule that 'the chronological age of a minor is itself a relevant mitigating factor of great weight. '. (Streib, Lexis Nexis).

Justice Powell, in writing for the majority, stated: ' [Y] out is more than a chronological fact. It is a time of life when a person may be the most susceptible to influence and psychological damage... minors, especially in their earlier years, generally are less mature and responsible than adults. ' Most juveniles are dealing with enormous amounts of stress everyday. These pressures affect the deterrence of the juvenile death penalty.

Each juvenile deals with this stress in a different way, and because of this stress, many adolescents act impulsively at times. Henry Heft explains that 'Peer pressure and family environment subject adolescents to enormous psychological and emotional stress. Adolescents respond to stressful situations by acting impulsively and without the mature judgments expected from adults. These characteristics are shared by all adolescents... Thus, the possibility of capitol punishment is meaningless to juveniles and has no deterrent effect.

' (Heft 30) The court did not address the specific issue of the juvenile death penalty until 1987 in Thompson vs. Oklahoma. The 5-3 decision vacated the defendant's death sentence (at the age of 15, Thompson had participated in the murder of his former brother-in-law). However, only four justices agreed that the execution of a 15-year-old would be cruel and unusual punishment under all circumstances. In sum, the boy was convicted of first-degree murder, and after a sentencing hearing the trial judge accepted the jury's recommendation that the boy be sentenced to death. In affirming the boy's conviction and sentence, the Oklahoma Court of Criminal Appeals held that a minor who has been certified to stand trial as an adult may be punished as an adult, including a death sentence, without violating the cruel and unusual punishment clause of the Eighth Amendment (724 P 2d 780).

On certiorari, the United States Supreme Court vacated the judgment of the Court of Criminal Appeals and remanded the case with instructions to overturn the boy's death sentence. Although unable to agree on an opinion, five members of the court agreed that the imposition of the death penalty against this defendant would violate the cruel and unusual punishment clause of the Eighth Amendment because of the boy's age at the time of his offense. The next year, in Stanford vs. Kentucky and Wilkins vs. Missouri, the Supreme Court held, in a 5-4 decision, that the eighth amendment does not prohibit the death penalty for crimes committed at age 16 or 17. In both cases, the Supreme Court upheld the death penalty sentence. It is possible that juveniles see the death penalty as a deterrent as a lesson in hypocrisy. Juveniles are expected not to murder when they regularly see it being done by the government with the apparent approval of society.

Streib states, 'Now they see government officials struggling with a problem of their own, a person whose behavior is unacceptable to them. How do government officials solve their problem? They kill or execute the person who is causing the problem. Is it wrong to kill someone to solve a problem?

... It is akin to a lecture to children about the evils of smoking being delivered by a lecturer who is puffing on a cigarette. ' (Streib 61). Finally, the Court found that capital punishment of juveniles ages 16 or 17 did not offend societal standards of decency. Recently, the U.S. and the Supreme Court have experienced intense criticism from international agencies because of its human rights implications and violations of international law. Since these decisions, juveniles have still received the death penalty at a steady rate, accounting for 2 to 3 percent of current sentences, although there has been a huge increase in juvenile violent crime arrests.

Additionally, racism can be found both in charging, sentencing, and imposition of the death penalty. Steve Radic states, 'Presently, about half the people on death row are from minority groups that represent only about twenty percent of the country's population. About forty percent of those who have been executed since the death penalty was allowed to resume in 1976 have been African-Americans, even though they constitute only twelve percent of the population. ' (Radic 4).

Examination of arguments both for and against the death penalty gives us a glimpse of the rationale behind the juvenile system. Supporters of the death penalty argue that a) juvenile crime, particularly homicide, occurs far more in America than in any other country. b) juvenile homicide rates increased rapidly, as adult homicide decreased. c) juveniles seem to be especially violent and cruel, despite societal attempts to stop the violence. d) almost every political leader is pushing for tougher punishment of juvenile crime. e) correcting the underlying issues in juvenile crime seems to be an overwhelming, if not impossible task. Proponents of the death penalty argue it saves billions of dollars compared to life in prison. That would be true if one were comparing the cost of electricity for the electric chair, or the price of rope for a hanging. Unfortunately these are not the only costs involved with putting a person to death. There are a countless number of appeals granted in every capital case.

All of these cases require prosecutors, defense attorneys, and other court fees. The policies resulting from this approach are costing our society a tremendous price in money, in the corruption of the judiciary, and in diverting millions of dollars from education, drug programs, community policing, and other programs that would actually help to prevent crime. ' (Bright 6) The opponents of the death penalty argue a) all juvenile offenders have a 'terrible' childhood. b) because of their age, these juveniles have not had the advantage of 'aging out' of their past or their crimes. c) most juveniles do not comprehend death, so therefore the death penalty cannot be used as a deterrent. d) harsh punishments are only temporary solutions; instead the societal issues should be corrected. Few studies of convicted juvenile offenders exist, however, most have troubling backgrounds. These circumstances are not always revealed in court, many juvenile offenders are presented by public defenders. These attorneys have neither the time or the resources to complete a lengthy background history to present in court during sentencing.

In 9 of 23 juvenile cases it examined, lawyers handling later appeals identified mitigating evidence that had not been presented at the trial or sentencing hearing (Amnesty International, 1991). So how are these juveniles ultimately sentenced in court? There have been recent societal and political trends in which the demand is high for harsh punishment of the juvenile offender. The majority of jurisdictions in the U.S. allow for life without the possibility of release for those under the age of 16, it is even mandatory for some crimes.

This sentence has been challenged in court, based on its unconstitutionality for being cruel and unusual. In cases involving juveniles, attempts at overturning this sentence have been unsuccessful. In conclusion, examination of the current status of the juvenile death penalty is necessary. The U.S. has imposed around 200 death sentences since 1973, with approximately 73 remaining on death row.

Texas is the primary advocate of continuing this practice, despite pressure from international human rights groups being imposed upon the jurisdictions that continue to execute juvenile offenders. Following the 1994 peak of seventeen sentences (5.3% of all death sentences in 1994), the year 2000 saw only six sentences (only 2.0% of all death sentences in 2000) (Streib). There are always two opposing views to any high profile issue, and in this case we are dealing with the lives of young offenders, many of which claim their age excuses their 'mistake. ' While society must recognize the issues that often fuel adolescent rage, we should be hesitant to withhold punishment. In death row cases, many inmates will reside on death row for more than ten years before being executed. During this time, they undergo many changes, both physically and psychologically and often feel like a different man, and certainly not a violent threat to society.

Moreover, we are not executing men (and women) for the people they have become, but for the crime they committed. Their victims did not receive a second chance, so why should we as a society grant convicted killers the chance to live, love, and grow? However, the death penalty must be examined for flaws, including incorporating DNA technology whenever possible. Age has obviously been an important factor in the debate over the death penalty, but we must realize we live in an age of violent school shootings and declining alternatives for misplaced youth. Society should not advocate the death of innocents, but vindicate a willful and deliberate loss of life..