William H. Rehnquist: We'll hear argument next in No. 87-6026, Heath A. Wilkins v. Missouri. Ms. McKerrow, you may proceed whenever you're ready.
Nancy A Mckerrow: Thank you, Mr. Chief Justice, and may it please the Court: Heath Wilkins, acting pro se, pleaded guilty to having murdered Nancy Allen during a robbery of a liquor store dell in Clay County, Missouri, on July 27, 1985. At that time heath Wilkins was 16 years old. Approximately one year later, after a sentencing hearing at which both Heath Wilkins and the prosecuting attorney recommended the sentence of death, Heath was in fact sentenced to death. His sentence and conviction were affirmed by the Missouri Supreme Court on September 15, 1987. The question raised in this Court is whether or not the imposition of the death penalty on one who committed his or her crime at the age of 16 violates the cruel and unusual clause of the Eighth and Fourteenth Amendments to the United States Constitution. The answer is yes. Given the well-recognized and fundamental differences between children and adults, the imposition of a death sentence on someone who committed a crime at the age of 16 would always offend our current and evolving standards of decency and would constitute excessive punishment since it would provide no measurable benefit to society. Under any accepted set of rules or standards, children are not small adults. While the varying maturity levels of the class of 16-year-olds is presented to the Court in the briefs and the Court may certainly consider that in rendering a decision, for purposes of this argument Petitioner is willing to assume that we are discussing only the most mature 16-year-olds, because even the most mature 16-year-old is still a child in every state in the United States and we as a society treat children differently than we do adults in virtually every area of life. The people of Missouri have certainly recognized that children are different, and speaking through their elected representatives they have passed more than 80 statutes restricting the rights and responsibilities of children based solely on the dates of their birth. Thus, in Missouri a 16-year-old child, no matter how mature he or she may be, is ineligible to vote, to serve on a jury, or to control his own business affairs or money. The people of Missouri have also recognized that children are--
Harry A. Blackmun: Can they drive in Missouri at 16?
Nancy A Mckerrow: --Yes, Your Honor, they may.
Harry A. Blackmun: There's no distinction there?
Nancy A Mckerrow: No, Your honor. The people of Missouri have also recognized that children are in need of the kind of care, protection and control that could never be extended to adults. Thus, in Missouri a 16-year-old, no matter how mature he may be, can be forced to attend school. If he works, he can be forced to turn his earnings over to a parent or guardian, he can be denied entry into pool halls or other places of public entertainment. A 16-year-old can be taken into custody for being promiscuous or incorrigible or if he runs away from intolerable living conditions, and, if an adult decides it's in his own best interest, he can be forced to return to those intolerable living conditions. The people of Missouri have also spoken at least tangentially on the issue of children and the death penalty. A 16-year-old child in Missouri, no matter how mature he may be, is considered too young and impressionable to witness an execution. As a plurality of this Court noted in Thompson versus Oklahoma last year, it would be truly ironic if the assumptions we so readily make about children as a class, the assumptions which provide the justification for each of Missouri's 80 age-based statutes, were suddenly unavailable in determining whether it constitutes cruel and unusual punishment to treat children as if they were adults for purposes of inflicting society's ultimate punishment.
Byron R. White: Well, what about subjecting them to not the ultimate but to prison as an adult?
Nancy A Mckerrow: Your Honor, I think the determination that a particular child needs or deserves confinement for lengthy periods of time is something that could be left to the states, but doesn't really address the issue of how young is too young to be executed.
Byron R. White: Well, I suppose every state will permit children to be treated as an adult for some crimes.
Nancy A Mckerrow: Yes, Your Honor. I believe every state has--
Byron R. White: And subjected to exactly the same punishment as an adult?
Nancy A Mckerrow: --When the punishment is terms of imprisonment, yes, Your Honor.
Anthony M. Kennedy: Well, do you acknowledge that life sentence without possibility of parole is constitutional for a 16-year-old?
Nancy A Mckerrow: Yes, Your Honor. If the court determines that he is guilty of first-degree murder in Missouri, then he can be sentenced to life without possibility of probation or parole. The distinction is the distinction between the death penalty and every other punishment available to the state, Your Honor, and I think this Court has recognized that the death penalty is a unique punishment, and it's the one that as a society we reserve for the most extreme cases.
Anthony M. Kennedy: I take it your acknowledgement that a life sentence is constitutional is based on the premise that it is possible in some cases to determine that a sociopathic personality cannot be corrected even at the age of 16?
Nancy A Mckerrow: I don't know that I would concede that, Your Honor. I don't know if that's the determination that's made.
Anthony M. Kennedy: Well, then is your concession based on the premise that a life sentence is a necessary deterrent to a 16-year-old?
Nancy A Mckerrow: In Missouri there are only two alternatives once an offender has been found guilty of first-degree murder, and that is life without probation or parole or the death penalty.
Anthony M. Kennedy: But you conceded that it is constitutional to imprison a 16-year-old for life.
Nancy A Mckerrow: Yes, Your Honor.
Anthony M. Kennedy: And I'm asking you if it's not because personality adjustment is unlikely. You seem to reject that. Is it because it's a deterrent and a 16-year-old can be deterred by a life sentence?
Nancy A Mckerrow: Yes, Your Honor. I think that this case illustrates that. Heath Wilkins pleaded guilty and asked to be sentenced to death. He saw life imprisonment as much more of a deterrent for his conduct than he does or did the death penalty.
Anthony M. Kennedy: So the deterrent value of either a life sentence or a death sentence is something that a 16-year-old can understand?
Nancy A Mckerrow: I think when you're talking about deterrents for the class of 16-year-olds that life in prison probably provides a much better deterrence than would a potential death sentence. If the concern of the Court is to avoid the appearance of subjectivity or judicial law-making, then the action to be taken is clear. Simply bring death penalty law within the well-established American tradition of treating children differently. There is no basis in law or logic for abandoning the deferential treatment of children when it comes to the imposition of the death sentence. All of the objective indicators--
Antonin Scalia: Of course, you could say the same thing about life in prison I mean, I don't see how logic imposes this upon us at all.
Nancy A Mckerrow: --Well, Your Honor, I think it goes back again to the real distinction between the death penalty and every other punishment, including life without probation or parole, which doesn't irrevocably eliminate the possibility for change in a 16-year-old, even it that change takes place in a confined setting.
William H. Rehnquist: How would we know the top age from your argument, Ms. McKerrow? Is... just 16 is all you are arguing for, but would it be whatever age minority generally ends at in the states?
Nancy A Mckerrow: Your Honor, we've argued for the age limit of 17 because Heath Wilkin's was 16 at the time of his offense, and therefore we're arguing this case. However, petitioner would agree with all of the amicus briefs that have been filed and with petitioner in Stanford that 18 is the more legitimate age at which to set this bright line.
William H. Rehnquist: And why should we set the bright line at 18?
Nancy A Mckerrow: Because when the Court looks at the objective indicia of society's attitudes, 18 is the one age that has the most to commend it in terms of that's the age that is most commonly chosen for demarking the difference between childhood and adulthood.
William H. Rehnquist: And suppose the states come along and raise the drinking age to 21 and raise a whole bunch of other ages. This line, this bright line, would then move to 21?
Nancy A Mckerrow: It could, Your Honor. That's always a potential. The Eighth Amendment speaks of the evolving standards, and so if those standards did in fact change I guess a case could come up before the Court again in the future where this question would have to be reexamined.
Harry A. Blackmun: Certainly 50 years ago 21 was the dividing line on most everything, not 18.
Nancy A Mckerrow: Yes, sir, even up to 20 or 25 years ago. I would say it's only been within the last few years that 18 has been more recognized as the age that demarks children from adults.
Harry A. Blackmun: Our voting age case gave that a lot of impetus.
Nancy A Mckerrow: Yes, Your Honor. All of the objective indicators indicate that society recognizes and supports the notion that 16-year-olds are children and that by virtue of that fact alone are entitled to differential treatment from the state. The people of Missouri have never specifically permitted the execution of 16-year-old children. Instead, the Attorney General is asking this Court to presume that because Missouri has a transfer statute which permits children as young as 14 to be transferred into the adult court system that the Missouri legislature made a considered judgment on the issue of executing 16-year-olds. A majority of this Court has already rejected that reasoning and should do so again. As Justice O'Connor noted in Thompson last year, there may be many reasons completely unrelated to the death penalty why a state legislature would provide as a general matter for the transfer of certain children out of the juvenile and into the adult court systems. One reason, which is certainly apparent in Missouri, is that the present juvenile just ice system lacks the resources and the facilities to effectively deal with violent children or to protect society against those children. The juvenile court in this case noted that when it transferred Heath Wilkins into the adult court system. The juvenile court stated, "The present juvenile system of rehabilitation and confinement lacks sufficient security to deal with the perpetrator who constitutes a threat to society and there are no adequate rehabilitative facilities available to the juvenile court should jurisdiction of the above-named juvenile be retained by the court. " However, it must always be kept in mind that transferring a child, even a violent 16-year-old, from the juvenile court system into the adult court system does not transform that child into an adult. Thus, the 16-year-old being treated as if he were an adult is still denied most of the rights enjoyed by adults. He can never be judged by a jury of his peers since his peers are considered too young to serve on juries. If he becomes sick while he is in custody, the state must seek permission from his parent or his guardian before medical treatment can be rendered.
Harry A. Blackmun: In Missouri what is the age for service on a jury?
Nancy A Mckerrow: Twenty-one, Your Honor. And if he is sued by his victim's family, he must be--
Antonin Scalia: I don't understand. Age has to do with whether you have a jury of your peers or not?
Nancy A Mckerrow: --Yes, Your Honor. Partly I would think that he would be completely denied the right to have anyone his own age on a jury, even the potential for that, since in Missouri you have to be 21 to serve on a jury.
Antonin Scalia: If I have a jury composed entirely of 21-year-olds, I have not gotten a jury of my peers?
Nancy A Mckerrow: Not necessarily, Your Honor, but it's at least theoretically possible that people your age could serve on the jury.
Antonin Scalia: I thought the Constitution doesn't require just the possibility of a jury of your peers, but the reality of a jury of your peers.
Nancy A Mckerrow: That's true.
Antonin Scalia: Is that all the Constitution requires, that you have a good shot at getting a jury of your peers? I thought you had to have a jury of your peers.
Nancy A Mckerrow: That's true, our Honor.
Antonin Scalia: I don't think age has anything to go with that.
Nancy A Mckerrow: I disagree on that, Your Honor. The Attorney General also asks this Court to presume that because the Missouri death penalty statute lists age as a mitigating factor that the state has made a considered judgment concerning the constitutionality of executing children. Again, such a presumption cannot be made. The Missouri death penalty statute also lists the extreme emotional disturbance of the defendant, or whether or not it asks the censor to determine whether or not the ability of the defendant to conform his conduct to the requirements of law was substantially impaired. However, the fact that the Missouri legislature recognizes that the mental state of a defendant is important in sentencing can in no way supplant the constitutional prohibition against executing the insane.
Harry A. Blackmun: How old is Wilkins now?
Nancy A Mckerrow: He's 20 years old now, Your Honor.
Harry A. Blackmun: Twenty?
Nancy A Mckerrow: Twenty. The Attorney General's argument concerning age as a mitigator must fail for the same reason. It rests on the presupposition that 16-year-olds are in fact death-eligible and in that way begs the question before the Court. Age as a mitigating factor is as available to the 60-year-old defendant as it is to the 16-year-old defendant, and thus tells us nothing about how young is too young to be put to death. Finally, the Attorney General blurs the very real distinction between death and every other punishment available to the state. The fact that a particular 16-year-old needs or deserves confinement beyond his 18th birthday in no way provides a constitutional justification for executing that same 16-year-old. The people of Missouri have never ascribed to that argument. Since the death penalty was reinstituted in Missouri in 1977, 16 offenders who were 16 years old or younger have been transferred to adult courts and charged with first-degree murder. Only one, Heath Wilkins, was sentenced to death. No jury in Missouri has ever sentenced a person to death for a crime committed at the age of 16, despite having found transferees guilty of first-degree murder. In addition, prosecutors are much more likely to waive the death penalty in cases involving those who committed their crimes at the age of 16. In eight of those 16 cases, the defendant ultimately stood trial for first-degree murder. In five of those eight cases the prosecutor waived the death penalty. Thus, in 64.5 percent of the cases involving those who committed their crimes at the age of 16 the death penalty was waived, and that compares to approximately 33 percent of the cases involving adults in which the death penalty was waived by the prosecutor.
Anthony M. Kennedy: Well, of course that shows perhaps that juries are sensitive to this and there's no indication that they weren't sensitive in the case before us.
Nancy A Mckerrow: Your Honor, Heath Wilkins wasn't sentenced by a jury.
Anthony M. Kennedy: But the trial court was perfectly well aware of this, as was the Supreme Court.
Nancy A Mckerrow: Of his age, Your Honor?
Anthony M. Kennedy: Of course.
Nancy A Mckerrow: Yes, Your Honor, they knew his age. Petitioner would argue and argues in the brief that it was never considered, never given the sort of close consideration that this Court would require before a death sentence could be entered. Thus, juries and prosecutors, those in the best position to express the conscience of the community on issues of life and death, have rejected the death penalty as a legitimate punishment for those who commit their crimes at the age of 16. Professional and religious leaders have also rejected the practice of executing our young, as is evidenced by the numerous groups that have filed amicus briefs on behalf of Heath Wilkins and Kevin Stanford. In addition, two particularly relevant events have occurred since this Court's decision in Thompson. First, on--
Antonin Scalia: Excuse me. If it is that uniform a social feeling, presumably... I mean, the state does have a legislature, I assume, which is popularly elected which could eliminate this death penalty for 16-year-olds with a stroke of the pen.
William H. Rehnquist: We'll resume at 1:00. Thank you, Ms. McKerrow. We'll resume where we left off before lunch, Ms. McKerrow.
Nancy A Mckerrow: Since this Court's decision in Thompson v. Oklahoma, two particularly relevant events have occurred. The first was on July 14, 1988, when the National Council of Juvenile and Family Court Judges passed a resolution opposing the imposition of the death penalty on those who commit their crimes under the age of 18. As the amicus brief filed on behalf of the Attorneys General of 17 states in this case noted, juvenile court Judges face the problem of violent children on a daily basis therefore, that group's call for an end to the practice of executing those who commit crimes under the age of 18 lends strong support to petitioner's contention that there is a consensus in this country against the practice.
William H. Rehnquist: Do you say a brief was filed in support of the juvenile judges view by 17 Attorneys General of states?
Nancy A Mckerrow: No, Your Honor. The Attorneys General of 17 states filed an amicus brief on behalf of the State of Missouri in this case.
William H. Rehnquist: I see.
Nancy A Mckerrow: And in that brief they note, they specifically discuss the National Council of Juvenile and Family Court Judges and note that the judges deal with this problem on a daily basis. The second particularly relevant event occurred on October 21, 1988, when Congress passed the death penalty amendment to the Federal drug bill. That amendment excludes those who commit... execution of those who commit their crimes under the age of 18, and petitioner would argue again that this lends strong support to our contention that there is a national consensus in this country against the practice of executing our young-- Finally, the international community has voiced its disapproval of executing those who commit their crimes while under the age of 18. Heath Wilkins stands alone on Missouri's death row as the only person who committed his crime at the age of 16. He is not there because a jury determined that he deserved the death penalty, nor is he there because the prosecuting attorney in Missouri determined that the death penalty should not be waived. Rather, Heath Wilkins, who because of his age could not have represented himself in a civil suit, was permitted to represent himself. He pleaded guilty and then did everything within his power to ensure that he received a death sentence, a sentence which, again based solely on the date of his birth, he would be considered too young to witness. In Thompson, Justice O'Connor called for strong counter-evidence that the national consensus against this practice does not exist. The Attorney General has been unable to provide such evidence for the simple reason that it doesn't exist. All of the objective indicia of our current and evolving standards of decency indicate that society rejects capital punishment as a legitimate punishment for those who commit their crimes while children. There is a second related but independent basis upon which--
William H. Rehnquist: You say that society rejects it and yet obviously in Missouri society hasn't rejected it.
Nancy A Mckerrow: --Well, Your Honor, in Missouri the state has never specifically permitted the execution of 16-year-olds.
William H. Rehnquist: Well, certainly the Supreme Court of Missouri appears to be ready to permit it.
Nancy A Mckerrow: Yes, Your Honor, they did affirm.
William H. Rehnquist: Doesn't it speak for the state?
Nancy A Mckerrow: Not on this, I don't believe so, Your Honor. I think that--
William H. Rehnquist: Who does speak for the state on a question like this?
Nancy A Mckerrow: --The state legislature would be a more accurate gauge of public policy on this, Your Honor.
William H. Rehnquist: And you say it simply... it passed a statute dealing with the death penalty, didn't it?
Nancy A Mckerrow: The only statute which specifically deals with juveniles and the death penalty is the one that won't permit persons under the age of 18 to witness an execution.
William H. Rehnquist: But the Supreme Court of Missouri has obviously interpreted the legislative enactment to authorize execution of people under 18, has it not?
Nancy A Mckerrow: Well, Your Honor, in this case they didn't specifically address that contention. Petitioner asked that that be addressed, but based on the fact that they did affirm Heath Wilkins' sentence, yes, Your Honor, that's probably true.
Antonin Scalia: Ms. McKerrow, you do not acknowledge... how many states have a statutory structure would apparently allow a 16-year-old to be executed, although they don't say specifically a 16-year-old may be executed?
Nancy A Mckerrow: Eighteen, Your Honor.
Antonin Scalia: Eighteen states. And if you walk through their statutes there's nothing in it that would prevent a 16-year-old from being executed?
Nancy A Mckerrow: That's true, Your Honor.
Antonin Scalia: But what you insist upon is that the state adopt a statute that specifically says 16-year-olds may be executed, right? That's all you will accept? That's a pretty hard thing to expect a state to adopt. I'm not sure I could get a state to adopt a statute that says, you know, blind people can be executed, although I can fully see how in a particular circumstance a jury might impose a sentence of death upon a blind person. Why do you pick out the particular sympathetic factor of youth as the one that the state must set forth in les statute? You wouldn't say that if it were a blind person convicted to death. You wouldn't say well, you can't do it unless the state says in so many words.
Nancy A Mckerrow: Yes, Your Honor. I think that age is more than a sympathetic factor of the defendant. I think that when you look at this nation's attitudes towards children, which is defined by age, we have carved out a special place for those children in society as well as under the law, a place that is not shared by other what you would call sympathetic groups such as blind people.
Antonin Scalia: What about elderly people? When... I don't recall seeing many states that have recently executed someone over 70, let's say. Is there a national consensus that the elderly should not be executed, too, and are the laws that would permit the elderly to be executed invalid unless the state expressly says we are willing to execute people over 70?
Nancy A Mckerrow: No, Your Honor, I don't believe so. I think what would distinguish an elderly person from a child is that the society doesn't normally consider an elderly person to be less competent than an adult, but we do make that assumption about children in this country in virtually every area of life. And what petitioner is arguing is that assumption should be carried forward in this particular context.
Antonin Scalia: But we don't generally make it in the criminal area. We don't. I mean, the fact is, we don't. We're willing to send children to prison for life even though they are 16, aren't we?
Nancy A Mckerrow: Yes, Your Honor, that's true.
Antonin Scalia: And that's okay.
Nancy A Mckerrow: But we have also an entirely separate juvenile justice system which recognizes the differences between children and adults. And when you begin to talk about the transfer statutes you have to take into consideration the facilities and the resources available to the states, and petitioner's contention is the transfer statute more properly indicates a lack of resources and facilities than it does any sort of a judgment that children are in fact, when they commit criminal acts, adults, which I think has been not the case of how we deal with children.
William H. Rehnquist: Is the transfer statute in Missouri automatic at age 16 or just discretionary with the judge?
Nancy A Mckerrow: No, Your Honor. It's a judicial determination made by the juvenile court judge and the age if 14.
William H. Rehnquist: Fourteen?
Nancy A Mckerrow: Yes, Your Honor.
William H. Rehnquist: And what factors does he have to take into consideration? Is it whether the other facilities are over-crowded?
Nancy A Mckerrow: An examination of Missouri case law on this would indicate that what the courts primarily look at in Missouri is the age of the child at the time of the commission of the offense, the seriousness of the offense, and the availability of resources and facilities within the state to deal with that child. So that a child who is nearing the age of the end of juvenile court jurisdiction who commits a very serious offense and is deemed to need incarceration or deserve incarceration beyond, let's say, the 18th birthday then is transferred into adult courts because the juvenile courts simply don't have the facilities to deal with them. Your Honor, at this point I'd like to reserve the rest of my time for rebuttal.
William H. Rehnquist: Very well, Ms. McKerrow. Mr. Morris, we'll hear now from you.
John M. Morris, III: Thank you, Mr. Chief Justice, and may it please the Court: The arguments presented in petitioner's brief and also by counsel for petitioner today resemble in some respects some of the arguments that might be offered to a legislature in deciding whether or not a categorical age limitation might be imposed. But I would suggest to this Court that this Court is presented with two definite, specific, distinct issues in deciding whether or not this punishment violates categorically, for all persons at the age of 16 when they commit their murder, whether it violates the Eighth and Fourteenth Amendments to the Constitution. The first of those questions is whether this Court can find an objective basis that there is a national consensus in opposition to the execution of those who commit murders at petitioner's age... in other words, whether this practice violates the evolving standards of decency, as it's been described. The second question is whether... it's been variously formulated, but I understand it to be whether this punishment is categorically, for persons of this class, excessive or disproportionate to the crime committed or other factors, in particular factors regarding penological justification, whether there was any measurable penological justification for the carrying out of such sentences. On the first of these questions, I submit that this Court's search for objective indicators is never going to be a scientific or quantitative sort of analysis, if for no other reason than because there is no absolutely and invariably reliable, objective indicator. Even legislation, which this Court has most frequently cited, is not always going to reflect the views of the public for the simple reason that legislators don't always necessarily vote according to the views of their constituents. They may and in many cases do vote the views of their own convictions or many other factors, and I submit that is particularly true in cases, such as those involving capital punishment, which involve questions of deep personal conviction. But I think what can be done for this examination, although it can't be made scientific, is to apply the greatest rigor possible to examining these so-called objective indicators and seeing if they really are objective and, if so, why, and second I think to arrive at a measure of consistency in what one deems to be objective, an objective indicator of public views and what is not. Members of this Court have pointed out on repeated occasions that this Court, just from the nature of the institution, is not inherently well suited to judge the public mind, and for that reason I think the greatest possible care should be taken in this examination. Beginning with the subject of legislation, I would respectfully disagree with my opposing counsel. The number of states which would permit the execution of those of petitioner's age is not 18 but 22. They are set out in Appendix B of my brief. Four of those 22 states make an express reference in their capital punishment statutes to the question of age. Three of those set a categorical floor of age 16. The fourth sets a general age of 17, but allows for specific exception to that. Now judging from this Court's opinions in Thompson v. Oklahoma it would seem that there would seem to be basic consensus that these statutes in which the age is referred to in the capital punishment statutes are objective indicators of public view. It would seem that the dispute comes in those remaining 18 jurisdictions, including Missouri, which have a juvenile transfer statute, a juvenile statute which sets a minimum age for prosecution, and that minimum age also serves as the age for execution. The question as I would see it presented in Thompson is, can this Court disregard those 18 jurisdictions in judging evolving standards of decency on the theory that the legislatures in those states just simply didn't think about the subject of capital punishment when they passed those laws. Now I submit the question... the answer to that question is no for three reasons. First of all, we have specific evidence on the face of some of these statutes... five of the 18, to be exact... in which references are made in the juvenile statutes which we're examining either to capital punishment or to that state's version of capital murder. I cited a particular pronounced example in my brief at pages 23 and 24, the Georgia... pardon me, the Florida juvenile statute, which is rife with references to the fact that a juvenile can receive the death penalty. I think it's awfully difficult to justify in the face of that evidence alone a proposition that one could ignore these juvenile statutes as a whole because the legislature just didn't think about this question. In addition to that and apart from that I would offer additional evidence, which is admittedly less direct, which is the fact that the vast majority of these legislatures, the 18 juvenile states we're dealing with, 14 of the 18, have passed statutes in their capital punishment provisions which expressly recognize the importance of a connection between the defendant's age as a mitigating factor in capital punishment. Now I concede that none of these statutes make a reference to juvenile laws. I've never contended otherwise. But what I am saying is what we are encountering here is petitioner's desire to assume that the same connection between age and capital punishment was not made when the legislature passed their juvenile laws. And I submit that that is at least a circumstantial indication that they made the same connection there. A second major reason why these 18 jurisdictions should not be overlooked in considering evolving standards of decency is that we have not just evidence of legislative contemplation of this subject, which I have mentioned already, but also actual exposure of the public to this issue. The sentencing of persons to death at petitioner's age is not an academic consideration in this country. Since 1982 there have been 15 persons of that age sentenced to death in this country, of which eight were in jurisdictions with these juvenile statutes. I think this Court has acknowledged and should acknowledge that the acts of legislators reflect their public as a general proposition, and I would submit that that phenomenon cannot be deemed to have ceased once a law is passed. If there is a law on the books which, in the words of the plurality in Thompson, "is abhorrent to the conscience of the community. " I would suggest that a reasonable conclusion exists that that law is not going to be on the books very long. Yet... and I've cited in my brief, as a matter of fact, examples in which when a person of young age, and specifically age 15, has been sentenced to death in states and there have been repeated occasions when, very quickly in some cases, there has been adjustment upward of the minimum age in that state. Indiana, for example, sentenced a 15-year-old woman to death, and less than a year after that sentence that legislature passed a law setting the minimum age at 16. But when you look at these eight states, not only of these states with actual experience in sentencing individuals of this age to death has made any change to its minimum age during the period I've been talking about, since 1982. Again, it is not direct evidence, but I submit that it is one more basis for saying that we can't... we cannot presume, as petitioner desires that we presume, that these statutes are simply irrelevant to the question of public views. Finally, I would suggest that it is simply counter-intuitive to presume that a legislature which passed a law which subjected juveniles to all adult criminal penalties somehow didn't contemplate that the death penalty was one of those penalties. Now it's true, as was stated by justice O'Connor in the concurrence of Thompson, that there could be many reasons apart from the death penalty why a particular minimum prosecution age might be set. But if that is the case, and unless the legislature is oblivious to the question of capital punishment, there are many ways the legislature can take that fact into account, either by adjusting the prosecution age or by setting a separate capital punishment age, as some states have done. But I submit that in order to assume that legislatures just didn't think about this thing you must, as a necessary inference, assure that the legislature didn't even know they had a capital punishment statute. And I submit that that is not a tenable or reasonable assumption. For all of these reasons, the respondent submits that the dominant fact when we are reviewing the question of public views in this country on this subject is that 22 of the 36 states in this country which have a death penalty statute have authorized the sentence of death in the situation in which petitioner finds himself, for capital murders committed at age 16. I submit that even apart from the other factors which I will proceed to discuss that on its face demonstrates an absence of a national consensus in opposition to that punishment. I think it's a measure of the inconsistency of petitioner's position that petitioner attempts, while ignoring these 18 states which address this particular subject, attempts to rely upon statutes which have nothing to do with the subject of capital punishment or even criminal prosecution, for that matter, and I'm referring specifically to the voting and drinking and driving and so forth ages. What I would say about those statutes are two things. First of all, they pertain to what they pertain. There are ages ranges in every state. In Missouri there are age ranges all the way from 10 to 21 for different activities. How does one possibly select one of those ages or one of those statutes and say that that statute has some pertinence to what the public feels about capital punishment? I submit that that connection is simply not makable. Even if... even aside from that, there is the fact that these statutes that petitioner is talking about are basically different in character from the kind of statutes we're dealing with in these cases. In capital punishment statutes and as a general principle in juvenile statutes, we are dealing with an individualized consideration of the particular person at issue. We are dealing with a weighing of aggregating versus mitigating factors or the factors that the juvenile statutes prescribe which require consideration of various aspects of the youth in deciding whether he should be treated... whether or not he should be treated as an adult. That is not true of any of the statutes petitioner cites. They are class statutes. And inasmuch as we are already conducting in [inaudible] into these individuals, I don't see the relevance of class statutes in determining objective public standards of decency. I don't propose to go through and discuss each and every one of the purportedly objective factors cited by petitioner, but I would like to say a few words about jury verdicts. In this Court's decisions of Furman, and Gregg, and Coker, this Court had before it some evidence not just of the pure number of those sentenced to the punishment which was being challenged but also the proportion of that number to the occasions on which this sentence was being sought. For example, in Gregg v. Georgia, justice Stewart mentioned in his plurality opinion that this Court had before it indications that of those cases in which a person was convicted of murder less than 20 percent were sentenced to death, and this figure was discussed as to whether it was relevant in indicating public views in support or opposition to capital punishment. After Coker, beginning in Enmund, we begin to see for the first time a reference to the raw number of those cases in which persons are sentenced to death for the class challenged as if that number on its face has some significance, and I submit that that is not the case. I think a good illustration comes from the facts of this case. Again, since 1982 there have been 15 persons in this country of petitioner's age, including petitioner, who have been sentenced to death. Now if that number comes from, let's say, 200 trials in which people of this age were convicted of a capital crime in which the death penalty was sought, then perhaps it certainly could be argued that there is a disproportionate reluctance on the part of sentencers to return a death sentence for people of petitioner's age. If, on the other hand, that number is 15 out of 30 trials, then I don't think that argument can be tenably made at all. Petitioner has offered no evidence of the opportunity of sentencers to consider this question. I have no figures. The only figures I have been able to offer concern Missouri, and in the last 12 years that Missouri has had an operating death penalty we've had 138 cases in which the death penalty has been sought after a conviction of capital murder, and only three of those involved persons of petitioner's age or younger. Now I don't know if that can be extrapolated to other states or not, but if it can it might go a long way to explain why the number of those under sentence at petitioner's age is not very high and would have nothing to do with the proposition that those sentencers who consider the crimes committed by those of petitioner's age are reluctant to impose that penalty.
Harry A. Blackmun: How many executions have there been in Missouri since the reinstallation of the death penalty?
John M. Morris, III: One, Your Honor. It was this January.
Harry A. Blackmun: How many are on death row?
John M. Morris, III: Approximately 70, Your Honor.
Harry A. Blackmun: It's been slow.
John M. Morris, III: Yes, it has, Your Honor. Yes, it has been very slow. Aside from this problem in proof, I would also submit and I think members of this Court have pointed out that it does not follow, even if he could show a disproportionate reluctance of sentencers to consider or to impose sentences of death upon those petitioner's age, it has been pointed out that that is not necessarily an indication that there is an abhorrence or a consensus in opposition to this penalty. As I pointed out, virtually every state in this country with a death penalty has recognized in its statute the importance of the defendant's age as a possible mitigating factor, and if, as seems eminently reasonable, the younger the defendant, the more important that factor, that also would explain such a disproportion and would have, again, nothing to do with the proposition that there is a national consensus against this penalty.
John Paul Stevens: General Morris, your opponent mentioned the federal statute as a new development. Do you want to comment on that?
John M. Morris, III: Yes, Your Honor. There is... indeed, last November was passed the Anti-Drug Abuse Act of 1988, and it does include a minimum age of 18. As has been pointed out in Thompson, there are a number of other death penalty statutes in the federal jurisdiction, and it's awfully hard to know how or where the federal jurisdiction stands in that situation. At least in the states we have one death penalty statute or we don't have one. It was discussed and argued in Thompson, of course, in the various opinions that this either has a general implication or it just has a narrow implication to the sort of crime that was being passed, and I can't disprove or prove either of those propositions. That is the reason I've sort of set aside the federal jurisdiction as just being one of the legislature.
John Paul Stevens: Well, in the area that's covered, it's a narcotics statute, isn't it?
John M. Morris, III: Yes, Your Honor.
John Paul Stevens: I suppose that's an area in which deterrence might be particular effective, because there are a lot of young offenders in that type of criminal activity, aren't there?
John M. Morris, III: Well, yes, Your Honor. I'm not sure that the particular acts which are covered focus on young offenders or there are a lot of young offenders in that category, because the crime, as it's set out, involves conspiracies and plots to kill law enforcement officers and I believe there's also sort of a general in the commission of drug offenses. I don't think it follows or I wouldn't have any indication as to whether there are a large percentage of young offenders doing that sort of thing. There certainly are a lot of young offenders in drug offenses; I agree with you. I submit that if there is no basis for excluding the possibilities that I've mentioned... and particularly the possibility that of the relatively small number of those sentenced to death at petitioner's age is simply an expression of the reluctance to sentence people this age to death... we shouldn't be relying upon this as an objective indicator of public views. If there is not even intuitive basis for excluding that possibility, then I submit it should not be relied upon. Contrary to petitioner's reply brief, I don't suggest the only factor for this Court to consider is legislation. I think other factors such as polls might be useful, although it is awfully hard to tell... I'm not sure I can say... how one can characterize a national consensus in terms of percentages. I'm not sure it can be done. But I do think polls might be useful as a secondary indictor is one has evidence separately of a consensus either to support or--
William H. Rehnquist: Apropos of the question put from the bench to Ms. McKerrow, one would expect, if these polls were terribly accurate that eventually they would be reflected in legislation, would one not?
John M. Morris, III: --Yes, Your Honor, they would. And it's also true that if there is a public abhorrence of this there is no point in my being here or making this argument, because eventually that will be the law anyway. And I might mention in that connection that since this case has been granted there was legislation offered in Missouri to make it a minimum age of 18 and it was not passed. So perhaps that's one example of that.
Anthony M. Kennedy: Did it pass either house?
John M. Morris, III: Your honor, I don't know. They tried to make it part of a bill and it was defeated, as it was removed from that bill. But it was a categorical limitation at age 18 and it is not going to become law. But, Your Honor, yes, if there is a national abhorrence as reflected in polls, yes, it certainly should be indicated by other indications, and also mainly in the legislature. I also think such things as treaties can be relevance if they are ratified, for the same reason as legislation is relevant. But what I think we cannot do and what petitioner, I believe, has done is to author a raft of so-called objective indicators without any stringent effort to consider whether they really are objective. Justice Powell, in his opinion in Furman, I believe, quoted Justice Holmes in a previous case as saying the most delicate and grave task this court has to undertake is to review legislative choices of a legislature. And I subject it is doubly grave and delicate, whereas there this Court is required under its cases to arrive at a view of the national mind in deriving constitutional policy. And I submit that that sort of activity requires the most stringent care in determining that there really... the test, the objective factors that this Court is relying on really are objective. If there isn't a national consensus against the execution of those of petitioner's age, that of course does not end the matter. This Court has said in its cases that even publicly approved punishments may be deemed to violate the Eighth and Fourteenth Amendments if they are essentially excessive and disproportionate. In cases involving the facts of the crime, this Court has used that to derive qualitative distinctions between those sorts of activities which are proportionate for the death penalty and those which aren't. But this case, like Thompson, is not one of those cases. It is a case in which we are dealing exclusively with characteristics of a defendant. And I submit to this Court that in that context and that context alone this proportionality analysis is virtually unworkable. Defendants are sentenced to death because of what they did, not because of what they are. Now what they are, the kind of person they are, the kind of history they've had, is relevant to show why they did what they did and their culpability in doing what they've done. But the core decision in sentencing is to consider what a person has done and his culpability in doing it. The decision as to what kind of person he is is one removed from that. To give an illustration from this case, under Missouri law in order to be found guilty of first-degree murder one must act with deliberation. There, incidentally, is no felony murder which is a capital offense in Missouri. Felony murder is not a capital offense. You must act with deliberation, which is defined in Missouri law as coolly reflecting for some time in advance upon the murder. But when petitioner focuses upon not the facts of the crime or the elements of the crime but upon the character of the defendant these facts sort of get moved away and not considered. Part of petitioner's argument, it seems to me, is in essence that Heath Wilkins didn't deliberate. Heath Wilkins is a youth and is impulsive.
Thurgood Marshall: In Missouri do you execute insane people?
John M. Morris, III: No, Your Honor, we don't.
Thurgood Marshall: Well, I don't understand your argument.
John M. Morris, III: No, Your honor.
Thurgood Marshall: The defendant himself means nothing. That's what you said.
John M. Morris, III: No, Your honor. Pardon me. If I said that, I don't mean to be interpreted as saying that, no.
Thurgood Marshall: I misunderstood you.
John M. Morris, III: I'm sorry. Let me clarify that since it's come up. I am saying that the character of the defendant is relevant, but it is collaterally relevant and it mainly pertains to the kind of crime it is, to explain whether he is culpable, how culpable he is. You don't sentence someone to death because he is a nice person or a bad person. You sentence him because he has committed a murder and, incidentally, he did so out of full awareness of what's going on and knowledge of the consequences, or didn't, for that matter.
John Paul Stevens: I don't understand. Are you saying... perhaps it's the same thing Justice Marshall asked that the particular character of the offender has nothing to do with the degree of culpability?
John M. Morris, III: No, Your honor. In fact, I'm saying the contrary, I'm saying--
John Paul Stevens: You keep referring back to elements of the offense.
John M. Morris, III: --Not in a mechanical sense, but I'm saying that the ultimate question is, is what did he do and how culpable was he in doing it. And certainly it is relevant--
John Paul Stevens: Well, but on that very question wouldn't you say that youth is at least a mitigating factor?
John M. Morris, III: --Unquestionably, Your honor. Absolutely.
John Paul Stevens: So then youth does have something to do with the culpability.
John M. Morris, III: I'm not disputing that, Your Honor. What I'm saying is that the center of the sentencing decision is what he did and why he did it, which includes his youth or any other mitigating factors one may consider. But the center of the decision is that and not just what sort of person he happens to be. When this Court--
John Paul Stevens: But you would agree... I assume everybody had agreed... that there is an age below which you would say there can't be sufficient culpability?
John M. Morris, III: --Yes, Your Honor. And, as a matter of fact, I think that can be derived and must be derived from this Court's public views determination. In lieu of a question or perhaps not even a question, I think if one examines such factors again as legislation, I think that figure can be identified as somewhere between 13 and 14 because at age 13 we have only three states in this country which expressly authorize sentencing to death of a person that age, which puts us, it seems to me, in the ballpark of Coker.
John Paul Stevens: You mean through the juvenile system?
John M. Morris, III: Yes, Your Honor. Some of these statutes... at age 13 all of the statutes are juvenile statutes, that's correct, Your Honor. But at age 14 the number goes up substantially, I think to nine or something like that. But I think, the only way that number can be determined is what I'm saying, is through the public views sort of analysis.
John Paul Stevens: You don't think we could reach that conclusion even if there weren't any such statutes out there?
John M. Morris, III: I'm sorry, Your Honor?
John Paul Stevens: You don't think we could reach the conclusion, that conclusion that 12 or 13 is too young, even if there were no such statutes out there? You think that rests entirely on the existence of those statutes?
John M. Morris, III: No, Your Honor. That's really all I had to work with, because, you know, when we're cooling with persons 13 or 14 there hasn't been an execution in those cases in half a century. There are no one on death row that age. So the younger the age becomes in this analysis the most difficult it is to deal with because it is to thoroughly hypothetical. The only persons on death row in this country now are, at the youngest, age 15 and that of course is in question now because of Thompson. What I'm really saying, I'm not again intending to say that the characteristics of the defendant are not relevant, but I'm saying when this Court makes a distinction based upon the crime it is doing something, especially when it makes a distinction based upon the elements of intent, such as it did in Enmund, it is again addressing the core of the sentencing decision. Again, an example from this case. I mentioned that Heath Wilkins acted with, was found to have acted with deliberation. When you ignore the details of the crime and the elements that must be proven in a crime, you are left with the sort of generalizations the petitioner offers here. How can it be said... and I submit it can't be said... that there is no 16-year-old who cannot be deterred by the death penalty? Heath Wilkins conducted a thoroughly rational and vicious risk-benefit analysis in this case. He decided in advance that he was going to kill someone, and he carried out that plan with considerable rationality. He decided in effect that killing Nancy Allen was a good bet for him because he would raise his chances of not being apprehended. I submit it also cannot be said that there is no 16-year-old, perhaps many 16-year-old, who would not act with such awareness as to... for whom the principal retribution would not apply.
Anthony M. Kennedy: He originally asked for the death penalty. Does the record indicate at what point he changed his mind?
John M. Morris, III: Yes, Your Honor. He was caught, confessed, and he had not made this decision at what time. In fact, he said he was trying to play crazy at that time. But then probably a month or so later he was being given psychiatric evaluations and between one and the other he made this decision. So it wasn't right after his arrest but it was at a somewhat later time.
Anthony M. Kennedy: Well, I assume he's changed his mind again and now does not want to be executed.
John M. Morris, III: Well, Your Honor, all I have is his signature on the formal pauper's form. He does, incidentally, have a state post-conviction proceeding pending as well. So I guess there are some inferences in that, yes. But petitioner really doesn't try to prove that there are no people of this age for which retribution or deterrence applies. Petitioner applies what I would suggest is the meat-ax approach. We might... there might be a lot of people of this age who might not be sufficiently culpable and therefore we should, as a matter of proportionality analysis, say that no person of this age should be executed. Well, Your Honors, I submit that that is not a proportionality analysis. That is, if anything, social engineering and I really submit that a reasoning of that character really has no place in the Eighth and Fourteenth Amendments. Thank you.
William H. Rehnquist: Thank you, Mr. Morris. Ms. McKerrow, do you have rebuttal?
Nancy A Mckerrow: Thank you, Your Honor. First I would like to discuss something that Mr. Morris talked about, the lack of an objective basis for choosing an age, and then later on in his argument he spoke about and everyone on the Court seems to agree that there an age below which the states could not constitutionally execute a... someone for a crime. Petitioner would argue that all the objective indicators in the society point to that age as being 18. When you look at the vast majority of states set 18 as the age of emancipation, the international standard is clearly at 18, the American Bar Association has chosen 18, the American Law Institute has chosen 18, the National Council of Juvenile and Court Judges has chosen 18, the majority of courts which have specifically set an age set it at 18... that is 12 states have chosen that age. And when you just intuitively think about where it is that we draw the line between childhood and adulthood, the most common figure is in fact 18. As to the states which don't specifically set an age limit and what he can presume and not presume from those statutes, I would point to the same statute that the Attorney General has pointed to, which is the Florida statute, and that statute states that a person, a child of any age shall be transferred up if charged with a capital crime and a person of any age, if found guilty of that crime, shall be sentenced as if that person were an adult. So that statute doesn't tell us anything about how young is too young to be executed. Concerning the Missouri legislation that has taken place since Thompson there was in the juvenile Omnibus Act an insertion to set the minimum age at 18. The legislature voted to remove that without consideration. They have simply not considered the question this term, and there is a House bill currently pending in the Missouri legislature but no action has been taken on that bill. As far as the relevance of the other sorts--
William H. Rehnquist: What do you mean when you say the legislature removed it without consideration?
Nancy A Mckerrow: --When they were about to debate the Omnibus Juvenile bill there was a motion made to just simply remove the part of that bill that would have set the minimum age at 18. That was voted on. That part, section of the bill was removed and it wasn't debated or considered.
William H. Rehnquist: Well, you're not saying that it wasn't considered are you? Are you saying the legislators did not consider whether or not to vote yes or no?
Nancy A Mckerrow: Yes, Your Honor. They voted to remove that section from the bill without considering it or voting specifically on it, but only to vote yes or no to remove it.
William H. Rehnquist: Well, what do you seek to demonstrate by that point?
Nancy A Mckerrow: Well, Your Honor, I'm just pointing that out to show that the Attorney General has argued that the legislatures, that it they had, if there was some strong feeling on this issue that the legislatures would in fact deal with the issue.
William H. Rehnquist: And you don't feel the Missouri legislature dealt with it in the process you just described?
Nancy A Mckerrow: No, I don't, Your Honor. I think that they are waiting for some guidance from this Court. As far as the other sorts of class-based statutes such as voting age and setting juries, the relevance of those statutes indicates our, as a society's, attitude towards children and our belief that children are, as a class, less capable of making the sorts of mature determinations that are necessary to allow them to have the kinds of rights and responsibilities which we permit adults in the society. And I think the Court should consider those statutes for that purpose as how they indicate society's attitudes towards children.
Antonin Scalia: Once again, as far as rights or responsibilities are concerned, you are not arguing that society wouldn't or that a state here could not send a child to jail for life, a 16-year-old to jail for life?
Nancy A Mckerrow: No, Your Honor, I'm not.
Antonin Scalia: So the child is responsible for the criminal act?
Nancy A Mckerrow: Yes, Your Honor.
Antonin Scalia: So all you are arguing here is you can do it for life but you can't execute, and that's seems to me to be, although you disclaim the argument that this is just a sympathy factor, it seems to me that that's exactly what the case is, because you hold the child responsible. You are willing to send the child to jail for life, which you would not do an insane person. For insane people we don't say... you just can't execute them if the person is insane at the time of the crime. It's a defense in virtually every state, isn't it?
Nancy A Mckerrow: Yes, Your Honor.
Antonin Scalia: That's responsibility. But you're not talking here about responsibility, it seems to me.
Nancy A Mckerrow: No, Your Honor, we're not talking about the fact that a 16-year-old child cannot act with criminal responsibility. Petitioner's argument is that no 16-year-old can act with the level of moral culpability which should be required by a society before that person is executed, and that we require the highest level of moral culpability and responsibility before we would execute a person for a crime committed.
William H. Rehnquist: I think Justice Kennedy had a question for you. You indicated that the legislature was waiting for this Court's guidance.
Nancy A Mckerrow: Yes, Your Honor.
Anthony M. Kennedy: But your whole argument has been that we're supposed to take our guidance from the legislature.
Nancy A Mckerrow: Yes, Your Honor. It goes to the ability to use the legislature as some sort of a factor. It goes back to Justice O'Connor's concurring opinion in Thompson that we can wait for the legislature to act on this, but it's petitioner's contention that what occurred in Missouri this year is that this is the sort of thing that legislators are waiting to see whether they can operate within. They know that they are constrained by the Constitution and that it's this Court's responsibility to inform them of what the Constitution requires, and they are waiting for that.
Anthony M. Kennedy: I see some circularity there.
William H. Rehnquist: Thank you, Ms. McKerrow. The case is submitted.