Sentencing to Death? ABA Says Not For Those Under 21

When it comes to public opinion on the whether sentencing to death is appropriate, to borrow from Bob Dylan – “The times they are a’ changin’.”

The American public is losing confidence in the death penalty these days. It appears that people are deeply concerned about innocent people being sentenced to death; about fairness in the process, racially and otherwise; and about the death penalty’s lack of effectiveness. Indeed, polls show that most Americans believe that innocent people have suffered the death penalty, that sentencing to death does not deter criminals, and that a life-without-parole sentence should replace sentencing to death.

Adding more fuel to that trend, on February 5, 2018, the American Bar Association (ABA) weighed in on whether sentencing to death should occur for those 21 years old and younger. As one might expect, the ABA believes that those under 21 should never be subjected to the death penalty.

The Modern History of Death Sentences in America

In 1972, the U.S. Supreme Court in Furman v. Georgia effectively struck down the death penalty in all states. The Court essentially found that the arbitrariness of how the death penalty was imposed from state to state amounted to a violation of the prohibition on cruel and unusual punishment in the Eighth Amendment. Thus, a de facto moratorium was placed on the death penalty throughout the country.

Following that decision, states began revising and reinstating their death penalty laws to be consistent with Furman. By 1979, 35 states had a death penalty law back on their books.

By 1995, the total number of states allowing capital punishment reached an all-time high of 38. However, that number has decreased since then. Currently, sentencing to death is legal in 31 states and illegal in 19 states and the District of Columbia. The increase in states banning capital punishment reflects the American society’s changing attitudes to the death penalty.

Death Penalty Trends Moving Downward

In the mid-1990s, the death penalty was at a zenith in terms of popularity. The number of executions was steadily increasing up to a high of 98 executions in 1999. The country had experienced the Oklahoma City bombing in 1995, and the death penalty was supported by 80% of the American public. That support, however, did not last, and has steadily decreased ever since. The number of executions was down to 20 in 2016, a marked decrease from the mid-1990s.   The reasons for the decrease include:

• Increasing support for the sentence of life without parole. In 2007, polls show that the public was about evenly split between support for the death penalty and life without parole.
• Less confidence that the death penalty actually deters criminals. About 38% of Americans believe it is a deterrent, versus 60% who say it is not.
• The fear of the ultimate mistake.  The notion of executing an innocent person is the most persuasive reason people change their minds on the death penalty.
• Murder rate has declined sharply in the U.S. From 1991 to 2000, the murder rate dropped by about 44%.

Accordingly, while the death penalty is a part of American history and politics, more people have become opponents of sentencing to death than proponents, by about a margin of 3 to 2. The main reason given by those who have changed their minds on sentencing to death was the issue of putting an innocent person to death by mistake. One poll found that 62% of people who changed their minds did so because of the risk that innocent people could face a death sentence.

The ABA’s Recent Resolution on Sentencing To Death

In February of this year, the ABA weighed in again on the death penalty debate. It follows the trend of restricting the death penalty. Specifically, on February 5, 2018, the ABA’s Death Penalty Due Process Review Project reported to the ABA’s House of Delegates with a Resolution urging all jurisdictions in the U.S. 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 a long history of examining the death penalty and has advocated for it to be applied fairly, accurately, and with meaningful due process. It has taken positions with regard to the death penalty over the years that have had a great deal of influence on the decisions of the courts in our country, including the U.S. Supreme Court.

In fact, in 1983, the ABA became one of the first organizations to call for prohibiting the death penalty for anyone under the age of 18. In 2004, the U.S. Supreme Court, Roper v. Simmons, handed down the decision that the Eighth Amendment prohibited sentencing to death anyone who was 18 years old or younger at the time of the crime.

Now, the ABA has modified its recommendation to prohibit capital punishment for those who were 21 years old or younger at the time of the crime. The ABA relied on a number of medical studies that demonstrate a human’s development is not complete at age 21. Those in “late adolescence,” from age 18-21, share many similarities with juveniles in terms of brain development and the ability to understand the consequences of their behavior. Indeed, studies show that profound neurodevelopmental growth continues even into a person’s mid to late twenties. Therefore, the lack of maturity, underdeveloped sense of responsibility, and susceptibility to negative influences, makes a 21 year old or younger a bad candidate for the death penalty. Their culpability is less than a hardened adult criminal. Sentencing to Death | Death Sentence | Sentencing.net

The ABA was careful to note in its resolution that it is taking no position “supporting or opposing the death penalty.” It is only resolving that executing someone who was 21 years old or younger at the time of the offense should not be subjected to capital punishment.

The ABA’s decision to avoid supporting or opposing the death penalty notwithstanding, this recent public statement by the ABA is consistent with our country’s overall attempt to distance itself from capital punishment as much as possible.

One cannot avoid the reality that more than two thirds of all of the countries in the world have chosen to abolish the death penalty in law or in practice. The United States stands with countries like China, Iran, Pakistan, Saudi Arabia, Iraq, Somalia, Egypt, Indonesia, and Chad that still have the death penalty. The question remains whether the United States should be aligned with those nations, or follow suit with all of the Western European countries that have abolished the death penalty. The recent trend in the U.S. seems to be giving us an answer.

Additional Resources

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

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

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