V THE DEATH PENALTY
"Retribution or vengeance seems difficult enough for a government to justify where adult offenders are involved and vengeance against children for their misdeeds seems quite beyond justification... The spectacle of our society seeking legal vengeance through the execution of children should not be countenanced." American Bar Association, 1983

In 1997 the American Bar Association, which takes no position on the death penalty per se, reiterated its outright opposition to the use of the death penalty against those who commit crimes when under 18 years old. In doing so, the organization echoed one of the longest-standing international restrictions on the death penalty, namely that children should be exempted from it. This principle recognizes that children are not yet fully mature and hence not fully responsible for their actions, and that the possibilities for rehabilitation of children are greater than for adults.

Article 6(5) of the ICCPR prohibits passing a death sentence on anyone aged less than 18 at the time of the crime. International standards deem this to be such a fundamental safeguard that it may never be suspended, even in times of war or internal conflict8. The USA signed the ICCPR in October 1977, thereby binding itself not to do anything which would defeat the object and purpose of the treaty, pending a decision whether to ratify it. In the time between signature and eventual ratification in June 1992, US state authorities executed five people for crimes committed when they were under 18, and sentenced to death more than 70 other such people.

When it ratified the ICCPR, the US government reserved the right to impose the death penalty for crimes committed by those under 18. In 1995 the UN Human Rights Committee, the body of experts set up to monitor compliance with the ICCPR, said that the US reservation was incompatible with the object and purpose of the ICCPR and should be withdrawn. However, since ratification, US state authorities have executed six prisoners for crimes committed when they were under 18, including two in 1998. In June 1998, there were 70 such prisoners awaiting this fate on US death rows.

In 1998, twenty-four US states permit the use of the death penalty against those under 18 at the time of the crime9. Fourteen states have legislation enforcing 18 as the minimum age10. The federal government has set 18 as the minimum age of eligibility with respect to violations of federal criminal law, but this does not absolve it from its responsibility to ensure that state governments do the same. Under international law, the federal government is the authority ultimately responsible for ensuring that all US officials comply with their international obligations. The US Constitution expressly establishes that powers to sign and ratify treaties reside with the federal state and not with the individual states.

The Convention on the Rights of the Child states that capital punishment should not be imposed for offences committed by persons below 18 years of age. All of the 192 countries which have ratified the Convention have agreed to this obligation without making a specific reservation to it, emphasising the almost global consensus that 18 should be the minimum age for capital defendants.

In contrast to this international consensus, some US politicians are calling for children as young as 11 to be made eligible for the death penalty. For its part, the US Supreme Court, while recognizing that the law should treat children and adults differently, has determined that 16 should be the minimum age, not 18. In Thompson v. Oklahoma in 1988, the Court ruled that the execution of a person who was 15 at the time of the crime breached the federal constitutional prohibition against the imposition of cruel and unusual punishments. In its decision the Court said: "Youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage." In 1989 the Court ruled that the execution of offenders aged 16 or 17 at the time of their crimes did not violate the constitution.

In 1993 the Court pointed to the greater scope for the rehabilitation of a young offender. It said that, "the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside." The Court said that, "a sentencer in a capital case must be allowed to consider the mitigating qualities of youth in the course of its deliberations over the appropriate sentence." However, US capital juries have not always been in a position to fully consider the defendantís youth as a mitigating factor, due to improper or ineffective guidance from prosecutors or defence lawyers.

The principle that the defendantís background, as well as age, should be taken into account as potential mitigation, has also not been universally followed in capital trials in the USA. Amnesty Internationalís research indicates that many people on death row who committed murder when they were younger than 18 suffered violence or deprivation during childhood.

In the USA and many other countries, violent crime is a serious problem. Such crimes have tragic and lasting ramifications for the families and loved ones of the victims. As an organization dedicated to the victims of human rights violations, Amnesty International would never seek to excuse or belittle these crimes. But the death penalty is a calculated denial of the right to life and the right not to be subjected to cruel, inhuman or degrading punishment - basic rights to which all human beings are entitled, no matter who they are or what they have done.

There is an international legal and moral consensus against any nation executing people for crimes they committed when they were children. However heinous the crime, the sentencing to death and execution of a young person denies the possibility of rehabilitation, and cannot be justified on grounds of retribution or deterrence. As such, ending the death penalty against people for crimes they committed when they were under 18 years of age is a particularly appropriate first step towards total abolition.

Recommendation US federal authorities should withdraw the reservation to Article 6(5) of the ICCPR and take all necessary steps to ensure that state authorities comply with the international standards prohibiting the imposition of the death penalty on people for crimes they committed when they were younger than 18.

Authorities in the 24 states which currently allow for the death penalty for people who were under 18 at the time of crime should establish an immediate moratorium on the execution of these people pending the adoption of legislation imposing a minimum age of 18 at the time of the crime in capital trials.


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