William H. Rehnquist: We will hear arguments now in No. 86-6169, William Wayne Thompson v. Oklahoma. Mr. Tepker, you may proceed whenever you are ready.
Harry F. Tepker, Jr.: Mr. Chief Justice, may it please the Court: In this case Oklahoma has decided that a fifteen year old boy lost his moral entitlement to live because he committed a brutal murder, the killing of the ex-husband of his sister. According to the prosecution evidence the motive for this murder was revenge, revenge for the ex-husband's abuse of the boy's sister. This case comes before this Court on Certiorari to the Oklahoma Court of Criminal Appeals. Petitioner asked this Court to vacate the sentence of Death, but not the judgment that Wayne Thompson was guilty; and not the judgment that he deserves punishment. Two basic issues in this case relate to one fundamental principle: the principle that Youth bears on the fundamental justice of the Death Penalty and emotion and prejudice do not. First, does this principle require a minimum chronological age, or at least standards and instructions that tell the sentencing authority that their examination of non adulthood should not be truncated. Second, did introduction of inflammatory photographs of the murder victim's decomposing remains undermine the reliability of this Death sentencing process? Wayne Thompson was still a child under state law when he shot and killed the ex-husband of his sister. According to the prosecution's most incriminating evidence, the boy on the night of the murder shortly after the crime, confessed to his mother and explained to her that his... sister "would not have to worry about her ex-husband any more. " Wayne was certified to stand trial as if he were an adult. The jury was told that he was an adult. The jury was instructed that Youth is a relevant mitigating circumstance they could consider, but they were not told that Youth is a relevant mitigating circumstance of great weight. They were told that they could decide for themselves what were and were not mitigating circumstances. These were the instructions before the jury that sentenced Wayne to death. Under these circumstances and in a very real sense, this case comes before the Court presenting this Court with the first opportunity to decide whether or not Wayne Thompson was too young to be condemned to death. We submit under the circumstances of this case, as well as under circumstances generally applicable to a class of children and adolescents, it is most inappropriate under the Eighth Amendment, under the prohibition against cruel and unusual punishment, to inflict the Death Sentence.
Harry A. Blackmun: How old is he now?
Harry F. Tepker, Jr.: He is 20 now, Your Honor. The reasons for treating Youth in a special manner have been recognized by this Court on a number of occasions. We submit that these factors, these reasons for treating Youth in a special way are compelling in this particular circumstance: first children and adolescents are simply too inexperienced to be judged by the same standards applicable to adults. They have not been around long enough to formulate the understanding, the capacity for self-control, to be judged by standards according to adults. The question is not merely whether they know the difference between right or wrong, but whether they have the experience to apply those standards, to resist the stress, the trauma, the difficulties... of particularly difficult occasions. We submit that, in addition to that, it is quite plain that children, adolescents, are far more vulnerable to volatile, impulsive, self-destructive behavior, and this, recognized by this Court in the past, is grounds for treating Youth, youths, in a different manner, particularly when the punishment is Death.
Sandra Day O'Connor: Mr. Tepker, do you think that it would be a violation of the Eighth Amendment to execute a minor who has, for example, reached the age of 17 years and nine months, at the time the offense is committed, and who is found on an individual determination to have the moral culpability of an adult?
Harry F. Tepker, Jr.: Your Honor, we argue for a minimum chronological age.
Sandra Day O'Connor: Yes, I know you do, but my question is, do you think that it is a per se violation of the Eighth Amendment under the circumstances I describe?
Harry F. Tepker, Jr.: Yes, we do, Your Honor. We contend that 18 is the most dominant traditional definition of non-adulthood, and in this situation, when you are short of eighteen, the chances... excuse me?
Sandra Day O'Connor: In the abortion context, this Court has held that a minor can and must be treated as an adult upon proving her individual maturity to be so-treated. And yet you say in this context, we may not do that and the Constitution says we may not. That is a little bit inconsistent, perhaps.
Harry F. Tepker, Jr.: I think not, Your Honor. I think there is a difference between defining the reality and significance of adulthood for a non-adulthood for purposes of inflicting the Death Sentence, and making that same calculation when what is at stake is the fundamental right of privacy. Those... that balancing, that inquiry, is not the same, and I do not suggest that Bellotti v. Baird or other cases which recognize the difficulties here, block this particular... case. I must insist that the question you pose is not the question before this Court in one sense. Wayne Thompson was not certified to stand trial as an adult because he had a maturity beyond his years.
Sandra Day O'Connor: Well, did the Petitioner challenge the certification process in this case either at the trial or at appellate court level?
Harry F. Tepker, Jr.: He did challenge it at the appellate court level, Your Honor, and his appeal--
Sandra Day O'Connor: On the grounds that it was constitutionally insufficient or inadequate?
Harry F. Tepker, Jr.: --On Kent v. U.S. grounds, yes, but we are not relying upon those at this point. That time has passed. The question really here is whether the certification process negates the need for some focused attention on non-adulthood in relation to the Death Penalty? Certification proceeding is not geared toward--
Sandra Day O'Connor: Did the Petitioner asks the trial court to instruct the jury to consider age as a mitigating factor?
Harry F. Tepker, Jr.: --He did not, Your Honor. Well, excuse me: he did ask for an instruction that Youth was cited by the Defense as a mitigating factor. But the more particular instruction that we suggested in our brief were not requested by trial counsel. We submit, however, that trial counsel did present the issue of Youth. Appellate counsel did argue the per se issue. And we submit that it would be most unusual if this Court took away from itself the opportunity to decide the issue on narrower grounds. And that is why in my response to your initial question, trying to suggest that 18 years of age is the appropriate generalization line for defining the significance of non-adulthood versus adulthood--
Harry A. Blackmun: Is that your definite submission here? A bright line at Age 18?
Harry F. Tepker, Jr.: --That is the one that seems most logical to us based upon tradition. But we do--
Harry A. Blackmun: Of course, 16 would not save Mr. Thompson anyway, would it not?
Harry F. Tepker, Jr.: --It would indeed, Your Honor. And if this Court took the position that it wanted a greater consensus and it wanted to establish a floor that was truly a minimal floor, the fact that no state, having decided to select and express limitation on the Death Penalty, has selected an age below 16, might make 16 indeed the most logical line for purposes of federal constitutional law. We have attempted to provide the range of alternatives that would be necessary to resolve this case.
William H. Rehnquist: Mr. Tepker, are there some states other than Oklahoma in which a minor below the age of 16 could be sentenced to Death?
Harry F. Tepker, Jr.: There are indeed, Your Honor. But 60 percent of the jurisdictions in this country, encompassing 70 percent of the population, would not tolerate this execution.
William H. Rehnquist: That is, 60 percent of the jurisdictions which provide for capital punishment?
Harry F. Tepker, Jr.: No. That is 60 percent of the states total. It is approximately half of the states that retain the Death Penalty, establish minimum lines that would not allow this execution.
William H. Rehnquist: And half of them do not?
Harry F. Tepker, Jr.: Yes, that is right.
Byron R. White: And half of them would allow it?
Harry F. Tepker, Jr.: Half of them allow the potential for it, although I might add, if one takes into account the more general question of whether Youth bears upon the fundamental justice of the Death Penalty, Oklahoma is one of only three states that has neither a minimum line nor any special legislative declaration that Youth is a mitigating circumstance. And it is... the only one of those three states to have someone on Death Row who is a juvenile.
Byron R. White: Did the trial judge not say that the jury could take Youth into consideration as a mitigating circumstance here?
Harry F. Tepker, Jr.: He did, Your Honor. But then he said, "what is a mitigating circumstance is up to you to decide. " We submit that that violates the spirit of Eddings v. Oklahoma, in which this Court said, "Youth is a relevant mitigating circumstance of great weight, and it violates the principle was stated in a concurring Opinion in Skipper, which you joined, which says Youth bears directly on the fundamental justice of the Death Penalty. " The instructions left the jury with the impression that they had complete discretion over the matter. Moreover, the jury was told, contrary to the legal facts, that he was an "adult", when they asked that question of the trial judge. The trial judge responded, "yes, he is an adult. " He was a "child" under the laws of Oklahoma.
William H. Rehnquist: You say that the jury should have been instructed that Youth is a mitigating factor and you should take it into consideration in your deliberations?
Harry F. Tepker, Jr.: Absolutely. Your Honor. And it should have been correctly informed as to his status under Oklahoma law that he was a "child" under the laws of Oklahoma. For all these reasons, we submit there is great risk in this case apparent from the Record that the jury's inquiry into Youth, into non-adulthood, was truncated. It was truncated by the failure to answer the jury more specifically when they asked about the meaning of the word, "mitigating". It was truncated when the jury was told he was an adult. It was truncated when they were not told in specific, particularized ways, that Youth is at the heart of this case, and that they must make a judgment on that question.
Sandra Day O'Connor: Did the Petitioner object when the trial court told the jury that he had been certified as an adult?
Harry F. Tepker, Jr.: No, he did not, Your Honor.
Sandra Day O'Connor: And did he raise the point in the Oklahoma Court of Criminal Appeals?
Harry F. Tepker, Jr.: On the issue of adulthood, no, but the Oklahoma Appellate Public Defender did raise the issue that more particularized guidelines focusing the jury on the mitigating circumstances was necessary. And, I might add, that would have required the overruling of an explicit Oklahoma Court of Criminal Appeals decision, Chainey v. State, in which particularized guidelines are not allowed under Oklahoma law. We submit that this process made it very clear that there is a constitutionally unacceptable risk that non-adulthood was not weighed in a sensitive, careful, reasoned way in this particular case. We also submit that this case also has additional facts that make this inappropriate occasion for infliction of the Death Sentence. According to the Oklahoma Court of Criminal Appeals, inflammatory photographs of decomposing remains of the murder victim were introduced and used by the prosecutor in the closing argument during the Death sentencing process.
Harry A. Blackmun: Was the effect of those photographs raised below?
Harry F. Tepker, Jr.: Yes, it was, Your Honor. The--
Harry A. Blackmun: On the sentencing phase?
Harry F. Tepker, Jr.: --On the... well, there is an ambiguity in the Record on that point, Your Honor. The Appellate Public Defender argues strenuously that it was erroneous to admit the photographs. The argument of the Appellate Public Defender did not distinguish between the sentencing phase and the guilt phase, but it was not focused solely on the guilt phase. The Appellate Public Defender also criticized the trial prosecutor for his use of the photographs in closing argument, also in connection with mischaracterizing the defendant's age.
William H. Rehnquist: Do you think there is any constitutional difficulty, Mr. Tepker, in introducing a photograph that shows the brutality of a killing if in fact the killing was brutal? I mean, if there was six or eight wounds on the body, do you think there is some reason why that photograph simply showing those wounds could not be introduced?
Harry F. Tepker, Jr.: Perhaps, Your Honor, although, I--
William H. Rehnquist: What is the source of your reservation?
Harry F. Tepker, Jr.: --Well, I recognize it is an extremely difficult task to ask this Court to get into the business difficult and unpleasant of what photographs are too gruesome and what photographs are not. Here the Oklahoma Court of Criminal Appeals found the photographs to be "ghastly, gruesome, calculated only to enflame the jury, and proving virtually nothing. "
Harry A. Blackmun: Is this because of their submersion for almost a month?
Harry F. Tepker, Jr.: That is right. I mean, the photographs depicted the biology of decomposition, not the brutality of the crime.
William H. Rehnquist: But how... if the prosecutor had some other photographs that did not show the decomposition, but showed the brutality, that would be one thing. But my impression is here there were not. There was no choice.
Harry F. Tepker, Jr.: If the photographs were probative of the way in which the crime was committed, probative and relevant for those grounds, then I would think that would be an entirely different case, Your Honor, one that would bear upon the fundamental justice of the Death Penalty because of the aggravating circumstance of what is "cruel, atrocious and heinous". But that is not the situation here: the Oklahoma Court of Criminal Appeals said these photographs "proved virtually nothing".
John Paul Stevens: But Mr. Tepker, no, but they said that in saying they were not relevant to the determination of guilt.
Harry F. Tepker, Jr.: Yes, that is true.
John Paul Stevens: So we do not really know whether they thought they were really relevant to the determination of the appropriate Death sentence... the appropriate penalty. They just... there is nothing in their Opinion that tells us whether they thought they could appropriately be considered in connection with sentencing.
Harry F. Tepker, Jr.: Well, Your Honor, I would suggest this: The Oklahoma Court of Criminal Appeals denounced the introduction of these photographs in very strong terms. And then said they were harmless as to guilt or innocence. It gave no indication whatsoever that these photographs could be admissible during the sentencing phase.
John Paul Stevens: It gave no indication one way or the other on admissibility in the sentencing hearing, that is all I am saying.
Harry F. Tepker, Jr.: That is a fair characterization, Your Honor. We submit, however, that because of the way in which the Oklahoma... excuse me, the Oklahoma Court of Criminal Appeals, described these photographs, facts that they found in relation to the inflammatory nature of these photographs, the constitutionally unacceptable risk that the jury was distracted from its duty, distracted from the true assessment of what is an appropriate... sentence, is plain and apparent on the Record. If I may return to the basic, what we have tried to describe in our arguments as the 94 percent of the jurisdictions either have a minimum line or have something in their legislation which clearly indicates that cases involving youthful offenders are special. They deserve to be treated differently. That degree of consensus, along with the other factors surrounding the judgment of the Young in a capital sentencing case, make it particularly appropriate for this Court to declare now, to reaffirm, that Youth bears on the fundamental justice of the Death Penalty.
John Paul Stevens: That is not what we are asked to do. That does not win you your case. It seems to me the relevant statistic would be what percentage of the states have aligned that would have rendered this sentence inappropriate.
Harry F. Tepker, Jr.: Your Honor, what percentage is that? Sixty percent of the jurisdictions encompassing 70 percent of the population with an absolute line--
Antonin Scalia: What jurisdictions that have criminal... that have capital punishment... it is, of course, irrelevant with respect to those jurisdictions that have chosen not to impose capital punishment at all. But as to those that have, you say about half of them would not have allowed this sentence?
Harry F. Tepker, Jr.: --That is true. The percentage is half. Although I must suggest that when we are considering the nature of the Death Penalty in considering the judgment of the Young, to throw out those states that have decided the Death Penalty process is uncertain enough, or illogical enough, or perhaps too cruel, out of the calculation of what are evolving standards of decency, is to not inquire into what the consensus really is.
Antonin Scalia: We really have no idea what they would think about Youth as a factor, had they chosen capital punishment: they simply have not chosen capital punishment. We have no idea if they have not chosen it for the... for adults or for youthful offenders. So it really says nothing about whether if they did have it they would consider that Youth is a factor that would render it absolutely intolerable.
Harry F. Tepker, Jr.: Well, let me shift then to trying to suggest that this Court has used international opinion and international law in order to assess what are evolving society's standards of decency.
Antonin Scalia: We would not have capital punishment at all if we were to be bound by that, would we not.
Harry F. Tepker, Jr.: I am not certain about that, Your Honor. And I am not attempting to challenge or restrict the Death Penalty here at all. What I am suggesting is that 80 nations reject this kind of executions, and 40 of those nations retain the Death Penalty. If you add to that the practice of the nations in terms of the rarity of these kinds of executions, the clear statements that appear in the International Covenant of Human Rights, and the American Convention of Human Rights, it becomes very clear that there is an objective rejection of execution of children, and Wayne Thompson was a child under the laws of Oklahoma.
Antonin Scalia: Does the federal government place any limitation upon age with regard to the statutes in which it allows capital punishment to be imposed? Not the federal jurisdiction.
Harry F. Tepker, Jr.: I am unaware of a federal death penalty that goes to the question.
Antonin Scalia: That goes to the question?
Harry F. Tepker, Jr.: Yes, I guess I am unaware of the answer to your question. I did not think that there was authorization on the part of the federal government for a death sentence of juveniles.
Antonin Scalia: Not of juveniles, but there are... there is a Death Penalty in the Federal Code. Is there any limitation upon the imposition of that upon juveniles? I do not know the answer to that, Your Honor. You do not know that there is?
Harry F. Tepker, Jr.: I do not know that there is. The reasons for this great consensus... and I must suggest strenuously it is a very strong consensus, really reflect the fact that it is so terribly difficult to make judgments about anybody at this tender age. As I suggested before, there is an inexperience factor here. There is also the sense in which these people at this age have not been in command of their own lives. They have not taken responsibility for establishing a place in the community separate from family, from friends, and from parents. For all of these reasons, generally it is extremely difficult to make a judgment about a child or adolescent.
William J. Brennan, Jr.: Do you have any statistics which could tell us how many juveniles have been prosecuted for offenses carrying the Death Penalty?
Harry F. Tepker, Jr.: Prosecuted for offenses carrying the Death Penalty? Um... I believe not, Your Honor. We do have in our brief the fact that those who receive the Death Penalty in proportion to the number who are arrested for criminal homicide are much, much smaller... something like 0.06 percent, as opposed to 1.8 percent.
William J. Brennan, Jr.: But we do not know actually how many under age 18, for example, of those now on Death Row, were prosecuted for offenses carrying the Death Penalty when they were... committed under 18? You do not have that?
Harry F. Tepker, Jr.: Percentages? No. There were approximately 32 individuals on Death Row. And if I understand Your Honor's question as to basically defining the charges, I do not have that information defining the charges.
William J. Brennan, Jr.: What I am trying to get at is how many have been prosecuted for offenses carrying the Death Penalty and how many of those prosecuted in fact were given the Death Penalty?
Harry F. Tepker, Jr.: That is an extremely difficult statistic to come up with. The best we have in our brief is the difference in proportion, the differential proportion based upon arrests for criminal homicide, and of course, that presents a problem about which arrests for criminal homicide are in fact capital offenses. With respect to the uncertainty of the judgment, I would like to draw attention to the brief, the amicus brief for the American Society for Adolescent Psychiatry, which eloquently summarizes the evidence that what is happening with respect to the juvenile Death Sentence is not a situation where these individuals are being sentenced based upon a judgment that they have a maturity beyond their years; they are being sentenced to death despite their evident immaturity and retarded development. The fact is that the American Psychiatric Association, when it discusses the diagnosis of "antisocial personality", states very clearly that such a diagnosis should not be made until someone has had the time, the experience, to show the full longitudinal pattern. It is only then when an individual is in a sense ready for the kind of judgment. The fact is that these individuals, this class of juveniles and adolescents, share characteristics universally regarded as mitigating, as deserving less punishment, or at least a more generous judgment in the final analysis. They share characteristics which make that they should be held responsible to the superlative degree of "cruel and unusual". We submit that in this case, tradition yields a principle of "decent restraint". Decent restraint, that the judgment and the punishment of them should be more careful and sensitive. The only way to ensure that this tradition is vindicated is through a rule that leaves no latitude for evasion, a minimum chronological age. But short of that, short of that we suggest that when a state seeks to kill a human being for the crimes of childhood or adolescence, it must show at a minimum that it made a reasoned, careful judgment based upon the reality of non-adulthood, without the influence of emotion or prejudice. For these reasons we pray that this Court vacate the sentence of Death in this case and remand to Oklahoma. Thank you.
William H. Rehnquist: Thank you, Mr. Tepker. We will now hear from you, Mr. Lee.
David W. Lee: Mr. Chief Justice, and may it please the Court: In my view, this case involves two questions: whether it was cruel and unusual punishment to impose the Death sentence upon the Petitioner in this case; and whether this Court should set as an aspect of the United States Constitution a minimum chronological age under which no state could go in imposing the Death sentence regardless of the circumstances of the individual crime irrespective of the individual of the defendant's maturity and background in each individual case. In the present case, the Petitioner murdered the victim one and one-half months prior to the Petitioner's 16th birthday. The Petitioner had nine contacts with law enforcement officers, seven of which occurred prior to the murder in this case; four of those incidents involved assaults on a person and two of those involved assault with a deadly weapon. Testimony at trial revealed that Petitioner announced to witnesses as he left his house on the night of the murder, "We are going to kill Charles. " The victim died after having been brutally beaten; having his throat cut; and having been shot in the back of the head. After the murder, the Petitioner told witnesses on two different occasions that he had cut the victim's throat and shot him in the head. The Petitioner made other several other callous comments after the murder that revealed that he felt no remorse, a fact that was corroborated by the testimony by the psychologist who examined him and by his juvenile officer. Concerning the question of the Petitioner's age, the State contends that the adoption of the Petitioner's argument that this Court should set a minimum chronological age would require this Court to engage in artificial and arbitrary line drawing with regard to the decision whether to impose the Death sentence upon a young murderer. In its Decisions over the past eleven years, this Court has stressed the need for individualized decisions, regarding the Death sentence. And we contend also that there is no reason why age should be given any greater consideration or any greater weight than any other mitigating circumstances such as those involving mental retardation or mental illness. Furthermore, a significant class of violent criminals in this country should not automatically be immunized from the possibility of receiving the Death sentence. It is unquestioned that this Court has itself recognized in the Eddings case that young criminals increasingly engage in violent crime and to announce in advance that none of them, under any set of circumstances, could receive the Death sentence regardless of the maturity that they displayed or the viciousness of the crime that they commit would be in our view, to send the wrong message.
Harry A. Blackmun: I did not hear the last part, "It would be in your view. " what?
David W. Lee: That to announce in advance that, under no circumstances, regardless of the maturity the individual defendant displayed or irrespective of the viciousness of the crime that that defendant committed, we feel that would send the wrong message to other potential young murderers in this country.
Harry A. Blackmun: Then you would say the same thing to those states which do not have the Death penalty for adults?
David W. Lee: Well, we think that the individual states should be allowed the discretion whether to impose the Death penalty or not.
Harry A. Blackmun: I am merely saying that your argument would apply to states without the Death penalty equally?
David W. Lee: Well, of course those states have the right to choose whether or not they want to impose the Death penalty on a person of any age, and we think that if a state chooses to announce to the potential killers in that state, that in appropriate circumstances, if they commit a particularly vicious act, they too are subject to the Death penalty.
Harry A. Blackmun: What about... suppose Thompson had been ten years old? What would be your position then?
David W. Lee: Justice Stevens asked that question of me in the Eddings case in 1981 and I told him at that time in my view it would be a violation of the Eighth Amendment to impose the Death penalty on an individual that is ten years of age.
Harry A. Blackmun: It would be?
David W. Lee: Yes. We concede that it would. That would obviously be too young.
Harry A. Blackmun: What about 12?
David W. Lee: We do not think that this--
Harry A. Blackmun: Then you see, what I am going to do is I am going up the ladder... where would you draw the line?
David W. Lee: --We do not think that this Court should decide in advance what that minimum age should be. We think this Court should merely look at the facts in each individual case and review what Oklahoma has done in this individual case. Right now there are no people on Death Row in America and there have not been who are under the age of 15 years old at the time of the commission of the crime.
Harry A. Blackmun: But you would say that any ten-year-old, no matter where he is, may not be executed?
David W. Lee: I think that there would be common and unanimous agreement among all people that that would be too young for an individual to receive the Death penalty. However, we think the country is divided with regard to the minimum age with imposing of the Death sentence.
Sandra Day O'Connor: Mr. Lee, when is the last time that a state in this country has executed someone in this country that was under sixteen at the time of the commission of the murder?
David W. Lee: In 1948 there was an execution of an individual who was sixteen years of age.
Sandra Day O'Connor: Has Oklahoma ever executed anyone?
David W. Lee: No, Your Honor. We have never executed anybody under the age of 18 at the time of the commission of the crime. But we think that we should be able to in view of changing conditions make the decision in an appropriate case. I am glad to say that we do not have a lot of young people on Death Row in our state. And nationwide I am glad that that is not the case. But we think that individual states, if they have made a careful, individualized consideration as to an individual's maturity and background, that they should be allowed to impose the Death penalty in this case. This is an individual... Mr. Tepker has talked about the fact that young people are impulsive or immature... that is not the case in this particular... in Mr. Thompson's case. He had a number of previous contacts with law enforcement officials. He knew what he was doing would get him into trouble. The particular act in this particular case was not an impulsive act. We agree that young people may be generally impulsive, but the fact is that this individual defendant did not commit an impulsive act. It was a considered act. The fact that he had a motive to kill his ex-brother-in-law shows even more that it was calculated and planned and it was certainly not an impulsive act.
William J. Brennan, Jr.: Mr. Lee, may I ask you, when you conceded that the execution of a ten-year-old for murder would be unconstitutional, are you resting that on a violation of the "cruel and unusual punishment" clause of the Eighth Amendment?
David W. Lee: Yes, Your Honor, I think that would violate anybody's sense of decency under the Eighth Amendment.
William J. Brennan, Jr.: There is nothing in the Eighth Amendment that would suggest such an exception, is there?
David W. Lee: Well, obviously, this Court is going to be the arbiter as what do constitute... what does constitute a situation that would violate the consensus of the public in this country that an execution of a person of a particularly young age would be unconstitutional. But we think that the fact that there are 19 states in this country that allow the execution of an individual under the age of 16, I think you ask people generally, and they are divided, particularly if you show them the individual facts of individual murder cases, for example the case that this Court heard last Term, the Christopher Burger case. If you ask general public opinion about what should be done with that individual, and I think that there would be a lot of people in this country that would agree that he should be executed. This particular case involves, I think, a very serious crime, although the victim in this case was not a particularly appealing person, he underwent a very horrible murder; he had his... the pathologist testified that all of the wounds that he had inflicted upon him were inflicted on him while he was still alive until the time that he was shot in the back of the head, so I think that this particular case, particularly in view of the fact that this individual had had previous contact with law enforcement officials, I do not think that this particular case involves a violation of the Eighth Amendment. We also contend that a rule of constitutional law that would set a minimum chronological age for imposition of the Death penalty would make no allowance for any increase in--
Antonin Scalia: But you have accepted that, I thought? You have accepted that?
David W. Lee: --Well, not at the age of 15.
Antonin Scalia: Well, all right. That is all we are arguing about then. What age it should be set at?
David W. Lee: Well, he is asking for 18. And, but then--
Antonin Scalia: I understand. But then do not argue to us why a rule of constitutional law establishing a chronological age is bad, because you have accepted a rule of constitutional law that uses a chronological age, have you not?
David W. Lee: --I am saying that this Court does not have to say what that minimum chronological age would be. I am saying that there is nobody on Death Row in America that is under the age of 15. There are four that are now. Since 1984 there have been six that are. But I am saying that this Court does not have to say in advance in absence... excuse me?
Antonin Scalia: We do not have to say it in this case?
David W. Lee: Yes, or at any time. I do not see... like I said, there has been nobody that has been 14 or under who has received the Death Penalty in this country in recent years, and I am just asking the Court to make an individualized consideration in this case as it insisted the states do in other Death Penalty cases.
William J. Brennan, Jr.: You say, Mr. Lee, that there had been four or six in recent years that received a death penalty under fifteen?
David W. Lee: Since 1984 in my... according to my calculation there have been six individuals under the age of 16.
William J. Brennan, Jr.: Who were sentenced to Death?
David W. Lee: Yes, they were all fifteen years of age.
William J. Brennan, Jr.: How many of those were carried out?
David W. Lee: There have been none carried out and at the present time, there are three that are presently... of those fifteen, there are three that are presently on Death Row: Mr. Thompson, the individual in Indiana, and another individual in North Carolina.
William J. Brennan, Jr.: But none has been carried out?
David W. Lee: No, Your Honor.
William J. Brennan, Jr.: Any significance to that, do you think?
David W. Lee: There has been a problem nationally with imposing the Death Penalty on people of any age. There have been only... approximately 95 executions in this country since 1967, although there are 2,000 people on Death Row. And obviously, juries and sentencers and appellate judges in this country are going to be careful with regard to the Death Penalty being imposed on a young person, and we certainly welcome that. We think that the certification hearing conducted by Oklahoma in this case revealed that there was a careful consideration in individual judgment with regard to this individual defendant's maturity and responsibility. We think that it is important that in 1971 Congress in hearings involving the 26th Amendment adopted the testimony of Dr. Margaret Meade and others who testified that the age of maturity had declined three years since the 18th century. And it is also significant, I think, as we pointed out in our brief, that in 1984, Congress lowered the age for possible transfer in federal criminal prosecution from 16 to 15 years of age.
William H. Rehnquist: In 1985 Congress insisted that the states raise the drinking age, did they not?
David W. Lee: Yes, and that is 21. And I do not think that anybody should say that 21 should be the bright line. The fact that chronological age is an inherently poor criterion for making a decision whether or not somebody should have the Death Penalty imposed on them.
Thurgood Marshall: Mr. Lee, does it come down to the fact that you recognize that the Eighth Amendment would allow you to enforce the 15-year limit, but we cannot put it at the 18-year limit? Is that your point?
David W. Lee: I think it would be... I am sorry, Justice Marshall, I did not hear the first part of your question?
Thurgood Marshall: That you can set the 15-year limit, but this Court cannot set the 18-year limit?
David W. Lee: I do not think that 15 should necessarily be the limit. I am saying that 15 years is the lowest person we have on Death Row in this country.
Thurgood Marshall: Well, I thought you said you agreed that it could be done at 15?
David W. Lee: No, I am saying--
Thurgood Marshall: Did you not say that?
David W. Lee: --No, Your Honor. If I said it--
Thurgood Marshall: Did you not say that you could understand that 15 years was good enough?
David W. Lee: --No, I did not say that 15 should be the minimum age.
Thurgood Marshall: What did you say was 15 was for?
David W. Lee: Justice Blackmun asked me if 12 should be the minimum age, I think was the last age that he asked me, and I said at that point that I do not think that this Court needs to decide in advance what the minimum age would be.
Thurgood Marshall: What minimum age would you give?
David W. Lee: If I had to pick?
Thurgood Marshall: Yes, sir.
David W. Lee: If there was any bright line, and I have thought about this for six years since Eddings, and of course I thought about it before Eddings, if I had to pick a particular bright line, if there was a case directly before this Court, if there is any bright line, Age 14 is the age of common law age incapacity, and this Court in two previous cases, the Gault case and the Ford case, which you yourself wrote, Justice Marshall, you used the common law as the guideline for, in that particular case, for the imposition of the Death Penalty on somebody who was insane. Also, Blackstone, in his Commentaries on page 23, which we have cited in our brief, pointed out that from seven to 14 is the common law age of presumed incapacity.
Thurgood Marshall: I would say that our educational system and our government and everything else has sure progressed from Blackstone. Has it not?
David W. Lee: Well, yes, Your Honor. But you are asking for... me to tell the Court what that bright line is, and the Court used Blackstone when it pointed out--
Thurgood Marshall: Pointed out why we cannot do it. Why we cannot set a huge bright line at 18.
David W. Lee: --I think it is unnecessary for the Court to do so, particularly in this case. I think that the Court has said from Griggs on that a defendant should receive individualized consideration; that there should be allowances made for the imposition... for the jury to impose mercy in a particular case; what is important that an individual's character and background should be viewed by the jury. That was done in this case. It was done by the certification judge before the individual was certified to stand trial as an adult; it was viewed at the time that the jury made the decision; they found the existence of an aggravating circumstance; he was free to introduce evidence of any mitigating circumstance; he received an instruction that the youthfulness of the offender had been offered as evidence of mitigating circumstances. And we think that this individual defendant, his attorney argued in his closing argument in the second stage that age was a consideration; in their own brief they pointed out... I took one statement by the prosecutor out of context, but the Record shows that, particularly on page 160, the prosecutor specifically told the jury that in the second stage of the trial, that age is a relevant mitigating circumstance... a comment he made at least two times during the voir dire examination. So we think that as long as the jury, and the jury has traditionally been held to be that link to evolving standards of decency in the community, and Justice Stevens in his Dissent in Spaziano said as much. In this particular case, 12 people heard all this evidence and made the decision that the Death Penalty should be imposed. And we think that it was appropriate. It has been observed that chronological age is an inherently poor criterion standard by which to draw the line with regard to criminal responsibility. We have noted in our brief that all federal and state courts that have considered the issue have rejected the proposition that there is one uniform age that the Constitution sets as that below which a state can never go in imposing the Death sentence. In fact, the existence of certification, transfer, and waiver statutes in this country--
Antonin Scalia: But you do not agree with that?
David W. Lee: --I think that it--
Antonin Scalia: You are really... it seems to me that you are arguing two different lines: your argument you are now supporting says that there cannot be any minimum age.
David W. Lee: --Well... I am saying that there is a bottom somewhere.
Antonin Scalia: All right.
David W. Lee: That there would... I am saying that, by age... by age, there would be. But I am saying that, particularly that, with what they want, they want the age that would save the client in this particular case, and an age they say is 18 and there are any number of ages that could be selected and there are any number of ages that have been selected by the different states. And we think that the states should... are the proper entity to decide, what the minimum age should be, is all I am saying.
Antonin Scalia: Above ten, anyway?
David W. Lee: Yes. Yes, sir.
John Paul Stevens: You are arguing that we should not set it lower than nay legislature has set it, I suppose is one thing that you have said?
David W. Lee: I am saying that, if there was a case that came up where the legislature had set the age at ten and a ten-year-old person was on Death Row, I think it would be appropriate under the "cruel and unusual punishment" clause.
John Paul Stevens: You can argue statistics a million different ways, but... is it correct, I think you said that there had been no actual execution carried out of a defendant who was 15 or younger at the time of the crime since 1948? Something like that?
David W. Lee: In 1948 there was a sixteen-year-old that was executed in this country. As far as the actual fifteen-year-old further back than that, I am not sure. I think it is important to point out that this individual is one and a half month prior to his sixteenth birthday.
John Paul Stevens: I understand, but it would not be a different case if it was fifteen and a half, instead of fifteen years?
David W. Lee: No, we do not think so. We think that is what--
John Paul Stevens: But I am just wondering to what extent... there are statistics in these Exhibits and all about juveniles and so forth, but do we know how many, say since the turn of the Century, how many defendants who were under sixteen at the time of the offense had actually been executed in the whole, say, last 100 years?
David W. Lee: --I am unable at this time to recall what that figure would be, Your Honor.
John Paul Stevens: Is it more than a handful, do you know?
David W. Lee: In all honesty, I cannot remember.
John Paul Stevens: I could not figure it out either. Are there any?
David W. Lee: I am unable at this time to recall what that figure was, Your Honor. I am sorry. Obviously it is something that--
John Paul Stevens: It might be zero?
David W. Lee: --I cannot remember. Obviously we want to be very careful with this and I am glad that... I am not coming here saying that there have been hundreds and hundreds of young persons who have been executed and therefore it is constitutional. I think it is good that in this country that the individual sentencers and the individual legislatures have been careful with regard to this decision. All I am saying is in particular cases involving individuals like the Petitioner in this case, like Christopher Burger, like Kevin Stanford, like individuals like that, for committing their particular vicious crime, that if the particular act has been reviewed as it was in this particular case by a certification judge and then by a jury, that the state should be free to impose the Death Penalty.
John Paul Stevens: One of the reasons I am trying to explore this is you express I think very appropriately the concern about sending the wrong message to potential offenders who are under 16. Of course, if you assume that they are very brilliant and knowledgeable about what is happening in the criminal justice system in the last century, I do not suppose that it is much more of a deterrent to have one out of... you know, one every fifty years, than to have none at all.
David W. Lee: Well, as I have stated, we have only had 95 executions in this country since 1967, which means it is very rare and infrequent. But I do not think that should be the basis for abolishing the Death Penalty in this country. I mean, the states have tried to impose the Death Penalty--
John Paul Stevens: There is a lot of difference between 95 in three or four years and none in 100 years.
David W. Lee: --I am sorry, Your Honor?
John Paul Stevens: I said there is a lot of difference between 95 in five or six years, whatever it is, and only one or two in a century.
David W. Lee: Well, there has got to be a bottom somewhere. At some point there is going to be a--
John Paul Stevens: But I am just focusing on the deterrence argument at this point.
David W. Lee: --I think in this day... particularly the Petitioner in this case, that this was a "street-wise" individual. He has had nine... or before the murder he had seven contacts with law enforcement officials; this is an individual who is aware of what might happen to him with regard to the fact that he was going to be picked up by law enforcement officials--
John Paul Stevens: I suppose if you talk about the particulars, there were several people involved in the killing here, were there not?
David W. Lee: --Yes, and I know that particularly Justice Blackmun has been concerned, like in his Dissent in the Burger case, he was concerned about the possibility that there might be domination by other individuals. In this particular case, this individual was tried separately; there was nothing like there was in the Burger case that would prevent his attorney from presenting mitigating circumstances with regard to this case; there is not one word in the Record to suggest that this individual acted under the domination of anybody else. He certainly had enough family members that testified that could have testified if Mr. Thompson at one point had said that his family--
John Paul Stevens: Some of his family was involved in the crime, were they not?
David W. Lee: --Well, there was one half-brother that was, but he made statements to a number of family, or at least close friends, to family members... there were certainly plenty of family members around that could have testified that he made the comment that he did this because he was afraid of Tony Mann or because they made him do it. The Record is clear in this case that this individual acted of his own free will and volition in this particular case, and there is no inference whatsoever that he was dominated by any of these other individuals. As I have noted, we think that the... it is important that the states... even states that have set a minimum age for the imposition of the Death sentence, cannot agree on what that minimum age should be. And it was unclear until the oral argument what the Petitioner himself thinks the minimum age should be. We believe that common sense tells us that, if asked what the minimum age for the imposition of the Death Penalty should be, most people would say that it depends on the individual facts of the case, including the seriousness of the crime and what that individual defendant is really like. We contend that the objective factors of this case do not support the Petitioner's position. As we have noted, all state supreme courts that have ruled on this issue, have rejected the contention that age alone should bar imposition of the Death sentence. Nineteen states, as I have noted, permit the execution of a person who was under the age of 16 at the time of the murder. By my count, there are presently 38 persons on Death Row in this country who are under the age of 18 at the time of the commission of the crime. These were people who were sentenced by judges and juries in 14 different states. In a one-year period of time from 1985 until 1986, three persons who were 17 at the time of the commission of the murder, were executed. We contend that there is no unambiguous trend in this country with regard to the raising or lowering of the age for the Death sentence. As I previously mentioned, Congress in 1984 lowered the age for transfer for violent crimes from 16 to 15, which in my view... also in response to Justice Scalia's question that, under the Federal Air Piracy Act, which was mentioned by this Court in the McCleskey case, a fifteen-year-old person, if he is properly transferred pursuant to the certification transfer statutes, could receive the Death Penalty if the procedure is adequate. Therefore, the general public sentiment and the objective factors that would justify the abolition of the Death Penalty for young murderers is not present. We think that the crime itself is relevant in proportionality principles. One who reads the facts in many of these cases cannot help but think that individual states and individual juries are justified in imposing the Death sentence in those cases. In the present case the Petitioner was convicted and sentenced because of his direct role in a calculated, savage murder. He was certified to stand trial as an adult after two hearings, one where the certifying judge determined prosecutive merit; another when the judge weighed six factors under our certification statute. I might note that our certification statute is very similar to the federal transfer statute, Title 18, Section 5032. These factors included first the willful nature of the act; whether the crime involved an act against the person; another consideration made by the certifying judge was the sophistication maturity of the Petitioner in his distinguishing right from wrong as determined by his psychological evaluation; his home; his environmental situation; his emotional attitude and pattern of living; and finally the record and past history and prospects for rehabilitation.
William J. Brennan, Jr.: Mr. Lee, how many federal offenses carry the Death Penalty?
David W. Lee: I think that is the only one, Your Honor, the Federal Air Piracy Act; that is the only one that I know of. We note that the Petitioner in this case--
Thurgood Marshall: Would that involve murder and rape?
David W. Lee: --Excuse me?
Thurgood Marshall: Murder and rape are federal charges.
David W. Lee: Well, I do not know if at the present time that is a possible punishment for... if it is possible under federal law for receipt of the Death sentence.
Thurgood Marshall: Treason?
David W. Lee: I think right now that air piracy is the only one, Your Honor. It was mentioned specifically by this Court in a footnote in the McCleskey case, and I do not know of any others. The... I might note that the Petitioner in his brief made note of the fact that there should be an attempt for rehabilitation. We contend that the Petitioner in this case was the beneficiary of a number of rehabilitative efforts in this case over the years. He received counselling; he received... he had a tour at a home outside of... in Oklahoma City; he received probationary services; he had a test... had testing done on him done six months before the murder, and none of these seemed to make any difference, a fact revealed to him... a fact testified to by the probation officer at the time he was certified. I want to note before I close that in their brief, the Petitioner mentioned the fact that the Tenth Circuit has said that our "aggravating circumstance, especially as heinous, atrocious or cruel. " has been found by the Tenth Circuit to be overbroad. I want to point out that the "aggravating circumstance" that was mentioned was mentioned in the Reply Brief. It was not mentioned until that time. The instruction in the particular case is not the same instruction that was used which is the subject of the Cartright v. Maunard case. In this particular case, the jury was instructed that "the aggravating circumstances, the heinous, atrocious or cruel, the murder must be preceded by torture or serious physical injury. " So we think that the structure of this case is different than the one out of the Tenth Circuit, which to mention out of the Reply Brief, that it sufficiently narrows the class of people that are subject to the Death sentence. Does the Court have further questions?
William H. Rehnquist: Thank you, Mr. Lee. Mr. Tepker, you have five minutes remaining.
Harry F. Tepker, Jr.: Thank you. First, if I may focus on the deterrent question: we are talking about a risk of a Death sentence that is already extremely low. We are also talking about a situation in which we have got individuals who are impulsive, who are not necessarily calculating, sophisticated individuals. To believe in the deterrent effect when the risk is so small even with the sophisticated and the calculating is difficult enough, but the individuals of the nature who are being sentenced to death--
Antonin Scalia: Every person under 18 is not sophisticated and calculating?
Harry F. Tepker, Jr.: --No, Your Honor, that is not what I meant to say. What I meant to say is they are part of a class who share characteristics of immaturity and they are particularly vulnerable to those personality characteristics. What I am trying to say is that even for the sophisticated individual, the risk is not great. The deterrent effect even for them may be extremely minimal. For these individuals who are the ones receiving the Death sentence, it is extremely difficult to believe that deterrence plays any meaningful role in the kinds of thought processes that led to these crimes. Certification has been discussed and perhaps my answers were garbled before, so I wanted to focus on that: we do not challenge the certification of Wayne Thompson before this Court. The certification process is designed to assess the capacity for rehabilitation within the Oklahoma system, and it refers as much to the Oklahoma system as it does to the individual. But more to the point, it does not focus on the question of moral culpability for purposes of the Death Penalty. It is designed to avoid a prospect that I think everyone in this room would find very difficult to accept, the prospect of a manifestly unfair short incarceration period for a serious offense. If Wayne Thompson had not been certified to stand trial as if he were an adult, he would have been under the rehabilitation system for something less than three years, a plainly short time. The question of certification, as decided by the Oklahoma trial courts, does not go to the question of the justice of the Death Penalty. And it does not negate the need for some clear focus by the sentencing authority on the propriety of the Death sentencing process. It does not even depend on the question of maturity.
Byron R. White: Do you... count the number of states who authorize the Death Penalty for people under 15? Do you count them the same as your opponent?
Harry F. Tepker, Jr.: To my understanding it is 18, Your Honor. Eighteen of 36 retain the possibility of executing someone below the age of 16. Seventeen of those are by express statute. One of those--
Byron R. White: Anyway, so your only apart by no more than one?
Harry F. Tepker, Jr.: --That is right. That is right, Your Honor. The question of rehabilitation has been raised. We do suggest that it is appropriate for the jury to make a judgment about rehabilitation. With respect to Wayne Thompson, I would point out that the jury was asked by the prosecutor to find if this individual would commit acts of violence in the future. And they refused to so-find. That is a clear indication that this question of rehabilitation was not brought home to them as being of a primary importance or focus or purposes of assessing the Death sentence. Moreover, the State's description of the rehabilitation efforts of Wayne Thompson, while accurate to a degree, are somewhat exaggerated: despite the seriousness of previous incidents involving law enforcement, Wayne Thompson was never institutionalized. He was referred to a private church home for something like a month. He did receive some counselling both at school and elsewhere. But there was never any effort, despite the seriousness of these offenses, to institutionalize him in the juvenile justice system. Given that fact, I think it is fair to say that the rehabilitative potential of Wayne Thompson is up in the air. It is uncertain, and not at all clear that the jury did not make the right decision when it refused to find a propensity for future violence... in the future. One last point: counsel for the State has conceded that there is a bottom somewhere. I suggest that if one is going to make a careful assessment of where that bottom is, the only concept that is meaningful in the law is the concept of non-adulthood, to draw a line right in the middle of the class of non-adults; right in the middle of the class who share these characteristics of inexperience and immaturity; right in the middle of this class of individuals who are so difficult to judge at Age 15 or 13 or 14... makes no sense whatever. Non-adulthood, then, should be the concept. The tradition of criminal jurisprudence and American jurisprudence is that these non-adults ought to be treated differently and judged more fairly. Thank you very much.
William H. Rehnquist: Thank you, Mr. Tepker. The case is submitted.