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UPDATE ON THE JUVENILE DEATH PENALTY IN FLORIDA 

Wade C. Myers, M.D., Lawrence O. Adu, M.D., Frank N. Anthony, M.D., Rafael Ruiz, M.D.

 What do Iran, Saudi Arabia, Nigeria, and the Democratic Republic of Congo have in common? They are the only other countries in the world, besides the United States, that have the Juvenile Death Penalty (JDP). Even China, known for its strict legal code, outlawed the JDP in 1997, although Amnesty International reported that China did execute a juvenile offender in 2003. Here in America, the moral and legal justifications for the JDP have come under increasing fire as of late.  

This article will provide an overview of the JDP, with an emphasis on its current status in Florida. The JDP refers to the execution of persons for crimes they committed prior to reaching adulthood. In most states the age of majority is 18.   

 Historical Background

 The first execution of a juvenile offender in the United States occurred in 1642. The recipient of this punishment was a 16-year-old boy, Thomas Graunger, of Plymouth Colony, Massachusetts.   

According to court records:

“Thomas Graunger, late servant to Love Brewster of Duxborrow, was this Court indicted for buggery wth a mare, a cowe, two goats, divers sheepe, two calves, and a turkey, and was found guilty, and received sentence of death by hanging untill he was dead."

 Thomas was caught in flagrante delicto with a horse. Unfortunately for him, there were no lawyers in Plymouth Colony at this time to raise mitigating factors on his behalf. The executioner not only put young Thomas to death, but also killed the beasts involved as instructed in Leviticus 20:15: 

“If there is a man who lies with an animal, he shall surely be put to death; you shall also kill the animal.” 

 Including Thomas, at least 366 juvenile offenders have been executed in the U.S. since 1642. However, in the last 15 years only six states have executed a juvenile offender. The most recent execution of one took place in Oklahoma on April 3, 2003, one of two JDP sentences carried out that year in the U.S. About 70 persons sentenced for crimes committed as juveniles now await their fate on death row.

 Death Penalty Legal Highlights  

In Furman v. Georgia, 408 U.S. 238 (1972), the U.S. Supreme Court found the death penalty unconstitutional, citing concerns that its inconsistent application violated the Eighth and Fourteenth Amendments. Concerns raised by different justices in their opinions including racial discrimination, arbitrariness, inadequate legal counsel, and the risk of executing the innocent. Commenting on the arbitrary imposition of the death penalty, Justice Stewart stated:

 "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual…the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed.”

In Gregg v. Georgia, 428 U.S. 153 (1976), the U.S. Supreme Court reinstated the death penalty, noting that the punishment of death for the crime of murder does not, under all circumstances, violate the Eighth and Fourteenth Amendments. 

In Thompson v. Oklahoma, 487 U.S. 815 (1988), the U.S. Supreme Court held that the execution of offenders under the age of 16 at the time of their crimes was unconstitutional by the Eight Amendment of the U.S. Constitution. The Court remarked that such an act would violate the "evolving standards of decency that mark the progress of a maturing society.”

In Stanford v. Kentucky, 492 U.S. 361 (1989), the U.S. Supreme Court held that the execution of offenders ages 16 or 17 at the time of their crimes was not unconstitutional.   

In Brennan v. State, 754 So. 2d l (Fla., 1999), the Florida Supreme Court in held that the execution of those who were 16 years old at the time of their crime would be cruel and unusual, and hence unconstitutional. The minimum age now required by Florida Constitution per the Florida Supreme Court is 17 for the eligibility for the death penalty. In March 2003, the Criminal Justice Committee of the State Senate overwhelmingly supported a bill outlawing the execution of any person under the age of 18 in Florida. (Of note, Brennan was convicted of first-degree murder and robbery with a deadly weapon. At the time of the crime, Brennan was 16 and his co-defendant was 18). 

In Atkins v. Virginia, 122 U.S. 2241 (2002), the U.S. Supreme Court held that the United States Constitution prohibits the death penalty for mentally retarded offenders based on the Eighth Amendment. Those with mental retardation were viewed as lacking the developmental capacities necessary to reach the highest levels of culpability necessary to warrant execution. In Justice Steven’s words:  

“Because of their disabilities in areas of reasoning, judgment, and control of their impulses…they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.”

 In Simmons v. Roper, 112 S.W.3d 397 (Mo. 2003), the Supreme Court of Missouri ruled the Juvenile Death Penalty violated the Constitution per the “cruel and unusual punishment” clause. The U.S. Supreme Court is expected to decide this issue in 2005 in Roper v. Simmons. 

Presently, 38 states have the death penalty; only 19 of these have the JDP.

The Argument for Abolishing the Juvenile Death Penalty

A steadily expanding body of scientific literature provides growing evidence that, when compared to adults, juveniles have less capacity to control impulses, make informed decisions, and resist external negative influences like antisocial parents, peer pressure and media violence. This discrepancy is, to a significant extent, based on brain immaturity. During adolescence, the brain continues to progress through an active neurodevelopmental maturation process. Even as they enter their 20’s, youth continue to achieve growing mastery and integration of cognitive domains. Adolescent impulsivity can be explained in part by incomplete maturational changes in the frontal cortical and sub-cortical systems. Additionally, adolescents have limited life experience, and therefore have accumulated less data on which to base their decisions. Nor is personality formation fixed by adolescence. Studies of adolescent personality followed into adulthood show a marked transformation of characterological style for many youth. Lastly, the powerful influence of being raised in a dysfunctional family with antisocial role models cannot be overstated. Many youth from such backgrounds who commit serious crimes go on to later lead productive, prosocial lives as adults. Our profession is far from perfect in being able to predict how a serious juvenile offender will function as an adult.

For all these reasons, medical, legal, child advocacy and religious organizations are calling for the abolishment of the JDP in America. A national consensus against the JDP now exists. The evidence is compelling that juveniles simply don’t reach the level of culpability necessary to merit a sentence of death.         

Florida’s Juvenile Death Penalty

The youngest inmates executed in Florida were Willie Clay and Edward Powell from Duval County (both executed December 29, 1941), and James Davis from Alachua County (executed October 9, 1944). All three were black males electrocuted at age 16. There have not been any executions of juvenile offenders in Florida during the past 40 years.

Thirty-two JDP sentences have been handed down by Florida in the past three decades, although only two remain in force. These two juvenile offenders account for less than 1% of Florida’s death row population of 364 inmates. One is James Patrick Bonifay, sentenced in 1991 and now age 30. He was convicted in Escambia County of robbery and murder of an adult male. The other is Cleo Douglas LeCroy, sentenced in 1986 and now age 40. He was convicted of robbery and murder of a 27-year-old white male and a 25-year-old white female. He is 40 years old now. Both were 17 at the time of their crimes. 

Three states have executed more than one juvenile offender in the last 30 years. Texas leads with 12 executions, followed by Virginia with three and Oklahoma with two.

Currently, the Florida Senate is considering a bill to abolish the JDP. However, its fate is uncertain.

Summary

There is growing momentum in the United States to abolition the JDP. On March 3, 2004, two more states, South Dakota and Wyoming, enacted laws prohibiting the execution of juvenile offenders. This brings the total to 31 states that now prohibiting the JDP. Similar legislation was in progress or expected in several other states at the time this article was written. That the Supreme Court has agreed to review this issue, in the wake of having ruled the execution of the mentally retarded unconstitutional partly based on the grounds of decreased culpability (Atkins v. Virginia, 536 U.S. 304 [2002]), may herald the ultimate outcome of their decision. In Atkins, the Court argued “…execution of the mildly retarded is inconsistent with the ‘evolving standards of decency that mark the progress of a maturing society.’” Hopefully by next year this statement will be applicable to juvenile offenders as well.

Suggested Websites for Additional Information

1. Death Penalty Information Center. “Juveniles and the Death Penalty.”

Website: www.deathpenaltyinfo.org 

2. Streib, V.L. “The Juvenile Death Penalty Today: Death Sentences And Executions For Juvenile Crimes, January 1, 1973 - June 30, 2003.”

Website: www.law.onu.edu/faculty/streib 

TABLE 1. The 19 Juvenile Death Penalty States

*A bill to ban juvenile executions in New Hampshire was in progress at the time this article was written.

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