After 100 Years of Debate -- And We're Still Executing Juveniles?
On October 13, the Supreme Court begins to hear Roper v. Simmons, a case that could finally mean the abolition of the juvenile death penalty in the United States. Few people realize that we’ve been struggling for more than a century with how to regard and treat our violent youth. Are they men or merely boys? And should it make a difference in the way we think about their punishment?
Our national history with the juvenile death penalty confirms that we have consistently used it against the most isolated, impoverished young people, and that we have done this knowingly, ever since the late nineteenth century. In fact, the question of life or death for a teenage boy absorbed the national attention more than a century ago, long before Lee Boyd Malvo.
For almost two years – from September 1890 until April 1892 -- the case of Charley Miller captured public attention, animated private discussions, and buttressed newspaper sales. Miller was an emotionally impoverished orphan from New York City, the blonde, blue-eyed son of German immigrants who killed two other boys, by shooting them in the head at close range while they slept, in a Union Pacific boxcar crossing into the new state of Wyoming. Although fifteen-year-old Miller turned himself in voluntarily, the remorse he expressed never satisfied the public. He was found guilty, quickly, and sentenced to die on hastily-erected gallows in rough-and-tumble Cheyenne.
During the appeals process, orchestrated by an attorney who had never before tried a capital case, a flurry of petitions to the governor argued for clemency on the grounds that Charley Miller deserved to live because of his youth and the harsh conditions of his early life. These “soft-hearted liberals” -- many women, educators and clerics -- wanted Miller confined to the state penitentiary for life or sent to a special boy’s reformatory back East. Others wanted the sentence carried out because they believed that a boy Miller’s age was very much a man, a common enough assertion in an era when schooling into late adolescence was a luxury and so many teenagers were in the work force.
On April 22,1892, as the State of Wyoming tried to heal itself from the violence of the Johnson County War, seventeen-year-old Miller was executed for the horrific crime he committed two years earlier. (His execution, like many others, served local political purposes.) Execution made Charley a celebrity, his likeness appearing -- in the form of “pen pictures” -- in newspapers in New York, Chicago, Denver, and San Francisco. Then as now, there were some Americans who thought the execution was barbaric while others hailed it as an act of justice.
Much of what was said in the 1890s about executing Charley Miller is repeated today. Liberals generally say that we should give a young defendant special protection from capital punishment because of his age, and – more often then not – the sad, dysfunctional beginnings that are usually associated with violent, antisocial behavior. Law and order folks respond with their mantra: “A kid who kills like an adult should be punished as one.” It’s a familiar rhetorical groove, and we are stuck in it – despite the passage of a century, and the fact that important new research in the behavioral sciences suggests that we start to think about violent boys in a new, more scientific way.
What’s new is our knowledge about the “teenage brain” and its unfinished nature. The best behavioral science, the kind generated by the MacArthur Foundation’s Network on Adolescent Development and Juvenile Justice, has made it clear that adolescent cognitive, emotional and social development is incomplete, that boys well into their late teens have difficulty curbing their impulses, thinking through long-term consequences, and resisting the influence or coercion of others. These problems persist in adolescent behavior, past or present, be it Charley Miller or Lee Boyd Malvo.
While it’s hard to establish exactly when maturity occurs, conflating childhood and adulthood is a relic of Charley Miller’s time. And yet, the United States continues to uphold the juvenile death penalty in the twenty-first century, in the face of an international standard of decency that clearly regards the practice as barbaric. Even autocratic regimes like Saudi Arabia, Nigeria, Iran and the Congo no longer execute minors.
In the discussion that surrounds Roper v. Simmons, it would be helpful for the Court to consider both the historical record and also the new developmental science. Just as the Court excluded the mentally retarded from execution in Atkins v. Virginia (2002), it should now make age an exemption from capital punishment.
Outside the Court, it’s time for all of us to ask why we are the only nation in the world that still supports the juvenile death penalty. The United States cannot legitimately hold itself up as a beacon of human rights around the world as long as we continue to execute people for crimes committed as juveniles. Today, the burden of proof should be on the executioners for the state to demonstrate how the juvenile death penalty advances society. In the weeks and months ahead, how we talk about this issue, and the questions we ask, will be a telling measure of whether or not we have progressed beyond the dialogue of the 1890s.