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Unlike the Tribune, Stevens was not simply counting the number of states that still have laws permitting the execution of juvenile offenders; he was considering other factors that measure ``the progress of a maturing society.''
While 22 states (not 23, as the editorial stated) have the juvenile death penalty on their books, 28 (not 15, as the editorial misstated) and federal law do not permit such punishment. Of those 22 states, seven have no juveniles on death row, and only seven have actually executed juveniles since the reinstitution of the death penalty in 1973. Indiana outlawed the death penalty for juveniles last year, as did Montana in 1999. Texas, Arkansas and Florida all had one of their legislative houses pass such a bill in their most recent sessions.
Measurement of evolving standards of decency is not limited simply to the number of states that enact such legislation. International standards are a measure - only the United States, the Democratic Republic of the Congo and Iran continue to execute juvenile offenders. Professional consensus is a measure: The American Psychiatric Association and the American Bar Association are just two of the many mainstream groups that now oppose the juvenile death penalty.
Polling data are a measure: A 2002 Gallup Poll found that support for the execution of juvenile offenders is only 26 percent.
In the recent decision that executing the mentally retarded is now cruel and unusual, six justices found that the retarded ``by definition ... have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others.'' As a matter of development, adolescents have identical diminished capacities. Neuroscience has recently discovered that those areas of the brain that regulate self- control, emotions, judgment, intelligence and identity do not stop developing until at least age 18. Moreover, according to research by the New York University Medical Center, nearly all of the juveniles on death row are mentally ill, seriously abused or neglected children.
The editorial then calls ``specious'' the position that offenders under 18 should be legally spared, while those a day over 18 are eligible for the death penalty. While there are indeed widespread individual differences among adolescents, we draw bright legal lines all of the time. Those a day under 18 cannot enter into contracts, enter the military, make medical decisions, vote or serve on juries. Indeed, they can't consume alcohol until they are 21.
Then too, international law, norms and consensus all point to the bright line of 18. This is not to say that juvenile offenders do not know right from wrong or should not be held accountable. It is simply to say that they are not as culpable as fully formed adults. Therefore, they should not be subject to the highest form of punishment, supposedly reserved for the ``worst of the worst.''
Moreover, Florida voters can address this issue in November. Constitutional Amendment 1 on the November ballot would change the Florida Constitution's language from ``cruel or unusual punishment'' to ``cruel and unusual punishment.'' However, in ending the death penalty for offenders under 17, the Florida Supreme Court relied on the ``cruel or unusual'' language, finding the execution of 16-year-old offenders simply too unusual. In the legal world, passage of Amendment 1 would broaden, not eliminate, the death penalty for juvenile offenders.
Last session, the state Senate unanimously passed a bill to raise the age of eligibility for the death penalty to 18. The bill did not make it to the floor of the House, which had passed a similar bill the year before. Senate sponsors stated that they did this so as not to make Amendment 1 a juvenile death penalty issue.
Floridians who believe that the death penalty for juveniles should be ended should vote no for Amendment 1 unless their legislators first and publicly agree to cosponsor and vote for raising the age of eligibility for the death penalty to 18. Ending the juvenile death penalty in Florida is a matter of science, decency, international relations and, indeed, civilization.
STEPHEN K. HARPERMiami
The writer is an attorney and an adjunct professor at the University of Miami School of Law, where he teaches a course in juvenile justice. He is working with the Juvenile Death Penalty Initiative, a coalition of groups including the American Bar Association's Juvenile Justice Center. Its single purpose is to eliminate the death penalty for offenders under the age of 18.
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