Should Anyone 21 or Younger Face the Death Penalty? The ABA Says No

On February 5, 2018, the American Bar Association (ABA) urged every U.S. jurisdiction to stop sentencing people to death for crimes committed when they were 21 or younger. The resolution is not law, but it reflects a long decline in support for the death penalty in the United States.

To borrow the title of a Bob Dylan song, the times they are changing. Many people worry about executing an innocent person, about racial and other unfairness, and about whether the death penalty actually prevents crime. According to polls cited in the original 2018 article, most Americans believe innocent people have been executed, that the death penalty does not deter crime, and that life without parole should replace it.

The Modern History of Death Sentences in America

In 1972, in Furman v. Georgia, the U.S. Supreme Court struck down the death penalty laws then in place. The Court found that the way the death penalty was being applied was so arbitrary that it violated the Eighth Amendment ban on cruel and unusual punishment. Executions stopped nationwide.

States then rewrote their death penalty laws to fix those problems, and the Court allowed executions to resume in 1976. By 1979, 35 states had a death penalty law back on the books.

The number of states with the death penalty peaked at 38 in 1995. Since then, many states have abolished it. When this article was first written in 2018, it counted 31 states with the death penalty and 19 states plus D.C. without it. The growing number of states banning it reflects changing attitudes. As of 2026, the Death Penalty Information Center reports that 27 states still have the death penalty and 23 states plus Washington, D.C. have abolished it. Four of the 27 have paused executions by order of the governor.

Death Penalty Trends Moving Downward

The death penalty was at its most popular in the mid-1990s. After the 1995 Oklahoma City bombing, about 80% of Americans supported it. Executions kept rising to a modern high of 98 in 1999. Support then fell steadily, and by 2016 executions had fallen to 20.

Reasons for the drop include:

• More support for life without parole as an alternative. By 2007, polls showed the public about evenly split between the death penalty and life without parole.
• Less belief that the death penalty deters crime. According to polling cited in the original article, about 38% of Americans believed it deters crime, while 60% said it does not.
• Fear of executing an innocent person. This is the reason people most often give for changing their minds.
• A big drop in the murder rate. From 1991 to 2000, the murder rate fell by about 44%.

The death penalty is part of American history and politics. But according to the original article, among people who have changed their minds, more have become opponents than supporters, by about 3 to 2. One poll found that 62% of those who changed their minds did so because of the risk of executing an innocent person.

What the ABA's Resolution Says

The resolution continues the trend of limiting the death penalty. On February 5, 2018, the ABA's Death Penalty Due Process Review Project brought it to the ABA's House of Delegates, which adopted the resolution urging all jurisdictions to "prohibit the imposition of a death sentence on or execution of any individual who was 21 years old or younger at the time of the offense."

The ABA has long pushed for the death penalty to be applied fairly, accurately, and with real due process. Its positions have often influenced the courts, including the U.S. Supreme Court.

In 1983, the ABA was one of the first groups to call for ending the death penalty for anyone under 18. In 2005, the Supreme Court held in Roper v. Simmons, 543 U.S. 551, that the Eighth Amendment bars the death penalty for crimes committed before age 18.

The 2018 resolution pushes that age line to 21. It relied on medical research showing that human development is not complete at 21, and that major brain growth continues into the mid to late twenties. People ages 18 to 21 share many traits with juveniles: less maturity, a weaker sense of responsibility, and more openness to bad influences. They are also less able to understand the consequences of their behavior. The ABA argued that makes them less blameworthy than hardened adult offenders and poor candidates for the death penalty.

The ABA said it takes no position "supporting or opposing the death penalty" in general; the resolution is only about age. Even so, the original article saw it as consistent with the country's broader move away from capital punishment.

The resolution is not law. Under current Supreme Court rulings, people who were 18 or older at the time of the crime can still face a death sentence.

More than two-thirds of the world's countries have abolished the death penalty in law or in practice. The U.S. remains among the countries that still use it, along with nations such as China, Iran, Pakistan, Saudi Arabia, Iraq, Somalia, Egypt, Indonesia, and Chad, while every Western European country has abolished it. The question is whether the U.S. should stand with those nations or follow Western Europe. The original article argued that the recent U.S. trend seems to be giving the answer.

Additional Resources

<http://www.abajournal.com/files/2018_hod_midyear_111.pdf>

https://deathpenaltyinfo.org/files/pdf/Beijing07.pdf

Federal Death Penalty Cases

In federal court, prosecutors cannot seek death without approval from the Attorney General, and the defense can present reasons not to seek it before that decision is made (Justice Manual 9-10.000). A person charged with a federal capital crime is also entitled to two lawyers, at least one of whom is learned in capital law (18 U.S.C. § 3005). That window before the decision is an important stage of the case.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.