Ending the Death Penalty for Juveniles Is Not Enough
By Ivan Eland*
March 7, 2005
The most important aspect of the recent U.S. Supreme Court ruling on the constitutionality of executing juveniles was
its consideration of evolving international views of ''cruel and unusual punishment.'' The court wisely noted the rising
global tide of revulsion against governments killing their younger citizens, no matter what their crime, and ruled that
juvenile death sentences in the United States are unconstitutional. Similarly, in the future, the court should heed
burgeoning world condemnation of the U.S. death penalty for persons of any age.
Since 1990, the United States has been in the deplorable company of the few remaining nations—Iran, China, Congo, Yemen,
Nigeria, Pakistan, and Saudi Arabia—that still put young people to death for crimes. America, famous for the extent of
its individual freedoms, should not be on any list with such despotic third world abusers of human rights. In fact,
Justice Anthony Kennedy, who wrote the majority opinion for the court, noted the “stark reality that the United States
is the only country in the world that continues to give official sanction to the juvenile death penalty.”
Yet why stop at ending the death penalty only for juveniles? The United States is also one of a small group of
countries, many of which are severe abusers of human rights, that allow the death penalty to be used at all. The United
States needs to exit this nefarious club, too.
As discussed at a recent Independent Institute policy forum, “The Death Penalty on Trial,” rising world opposition to the death penalty is not the only reason for ending it within U.S. borders; opposition to
this ultimate sanction is also increasing domestically. The principal reason is the incompetence of the government in
carrying out the penalty. DNA tests of inmates on death row have exonerated a sizeable number of individuals. Add to
this the disproportionate and unfair sentencing of African-Americans to death. Finally, rigorous studies have shown that
the death penalty does not deter future capital crimes.
Then despite the softening of public support for capital punishment, why do many Americans still support a barbaric
penalty that belongs in a previous century? The answer is simple: a desire for revenge. Many people believe that violent
individuals who commit heinous crimes—such as Christopher Simmons, the 17-year old defendant in the case before the
Supreme Court, who broke into a woman's house and murdered her by throwing her into a river bound and gagged—deserve to
be executed.
Simmons, and individuals like him, deserve to be severely punished for their atrocious deeds. As an opponent of the
death penalty, I have been asked whether I would desire revenge on the murderer of a close friend or family member. That
question is not the relevant one though. The critical question is whether society is better off if I do so or if the
state does it for me. The answer is an emphatic “no.”
It is dangerous to give governments—whether state or federal—the power to kill people. And it's not only because of
their aforementioned incompetence in convicting the right people. Today, such governments within the United States have
vastly more power than the nation's Founders originally intended. They could easily misuse that power to execute people
for political reasons. If you think this possibility is remote in the United States, just think about political
pressures after 9/11 to do something about “terrorists.” The Bush administration jailed people indefinitely without
charging them, giving them access to a lawyer, or trying them in an independent court that would give them due process.
The administration's kangaroo military tribunals—which have been specifically created outside the normal civilian or
military justice systems, don't meet such standards of due process, and are run by people who ultimately report to
President Bush—can hand down death sentences. And, in the wake of another catastrophic terrorist incident, the political
pressure for the government to mete out death sentences would be intense.
Yet significant numbers of people held after 9/11 without due process have already been released because they ultimately
were not found to be terrorists. Therefore, in the wake of a future 9/11-style terrorist attack, if the death penalty
has not been abandoned or ruled unconstitutional, many innocent people could be rounded up and executed for political
reasons—that is, to show the public that the government is “doing something” about terrorism. Unlike the use of other
sentences, the death penalty does not permit errors to be corrected after the fact.
In a new century with world opinion changing, it is dangerous to allow usually inept governments to have the authority
to kill their citizens for any reason, especially when the death penalty does not deter future violent crime, is applied
unfairly on the basis of race or religion, and is not reversible. In forbidding the use of death sentences for
juveniles, the Supreme Court is following enlightened trends in popular opinion. The court should also note the growing
public disapproval of capital punishment in general. This anachronistic and barbaric practice should be ended so that
America—one of the freest nations on earth—can rejoin the civilized world.
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Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at The Independent Institute in Oakland, California, and author of the books The Empire Has No Clothes, and Putting “Defense” Back into U.S. Defense Policy.