Behind the Death Penalty Ban
Supreme Court decision caps state-by-state combat by unusual coalition.
By Patrick Boyle

For the past several years, Dr. David Fassler has enjoyed putting his plastic brain through x-ray machines at airports.

At an airport in Wyoming, he recalls, a security agent spotted "the very lifelike" model while scanning Fassler's carry-on bag, turned to a colleague and said, "I think I found what you lost."

Fassler was carrying his brain back from the state legislature, where his testimony about adolescent brain development helped convince lawmakers last year to ban executions of juveniles convicted of murder.

The Vermont psychiatrist was among dozens of doctors, lawyers and youth advocates who traveled the country to campaign against the juvenile death penalty - a campaign that culminated last month with victory at the U.S. Supreme Court.
"It's the biggest [juvenile justice] decision of the last 30 years," says Marsha Levick, legal director of the Philadelphia-based Juvenile Law Center.

That decision resulted from work by countless people and scores of organizations, including the pleadings of a lone professor 20 years ago and kicking into high gear with a meeting of allies in Chicago 15 years later. While the victory cannot be attributed to any single group, one of the most influential efforts was an unusual alliance of physicians, lawyers, child advocates and death penalty foes who coordinated a campaign that blended science, politics, legal strategies, religious beliefs, public opinion and public relations.

Ultimately, the victory rested on convincing one judge that, with about 70 people sitting on death rows for crimes they committed as juveniles, carrying out that penalty was so unusual that it should be declared unconstitutional. That's what the court did last month, in its 5-4 ruling in Roper v. Simmons.

Turning Point

In retrospect, says the man hailed as the founder of the movement to abolish the juvenile death penalty, "I was incredibly naïve."

Victor Streib, a law professor at Ohio Northern University, was studying juvenile homicides around 1980 when he "stumbled across this rare practice" of juvenile executions. His research spurred him to write and speak out against that practice. He spent much of the 1980s traveling to state legislatures, presenting scientific evidence about adolescent brain development in hopes of getting lawmakers to ban juvenile executions.

"I thought I could walk in and tell people the research, and they'd say, 'Voila!,' " he says. But the academician hadn't accounted for politics. "A number of legislators said they couldn't vote for that because they would be seen as voting against the death penalty," he recalls. "Politically, they couldn't support me, even though they agreed with me."

Several legislatures, such as Oregon's, did ban the practice. But Streib felt like "this lonely voice."

Then "a confluence of events and trends," as Miami lawyer Stephen Harper puts it, brought Streib lots of company.

In 1988, the U.S. Supreme Court (in Thompson v. Oklahoma) banned executions of juveniles who were under 16 when they committed their crimes. In 1989, it rejected an effort (in Stanford v. Kentucky) to ban executions of anyone who was under 18 at the time of the crime.

Over the next decade, more lawyers, researchers and youth advocates got involved in juvenile death penalty cases and in combating the national move to punish more juvenile offenders as adults. Law Professor Steven Drizin, supervising attorney at Northwestern University's Children and Family Justice Center, organized commemorations of the 100th anniversary of juvenile court in 1999, focusing on the rehabilitative concept of the court.

That same year, Harper, coordinator of capital litigation at the Miami-Dade Public Defenders Office, got a call from the American Bar Association (ABA). The ABA caller said five juveniles were scheduled for execution the following year, and wanted help in mounting a concerted effort to stop the practice. Harper had headed the public defenders' juvenile division and helped to create the public defenders' Juvenile Sentencing Advocacy Project.

The ABA called other attorneys and researchers as well, setting off a series of discussions and activities that led to what Drizin calls "the turning point."
With action picking up in various parts of the country but no formal network for the actors to coordinate, the ABA convened a brainstorming meeting among the major players in late 2000. Among the 15 or so people gathered at Northwestern's Children and Family Justice Center in Chicago were Drizin; Streib; Harper; Robert Schwartz, executive director of the Juvenile Law Center; Patricia Puritz, director of the ABA's juvenile justice center; and people from Amnesty International and Human Rights Watch.

The consensus: The time was right to push for an end to the juvenile death penalty.
They planned to make changes in state legislatures, state courts and public opinion. "Our goal," Harper says, "was to end the juvenile death penalty state by state, jury by jury, kid by kid."

The Chicago participants launched a loosely centralized effort to build a coalition among groups that stood on the same side of the issue, albeit sometimes for different reasons. Their Juvenile Death Penalty Initiative (JDPI) included the American Bar Association, Drizin's Children and Family Justice Center, the Florida Justice Institute and the Project for the Advancement of Human Rights Law.

Harper, the initiative's director, says one key to success was getting "the scientific/medical community talking with the child advocacy community."
Initiative members and supporters searched for states that seemed most ripe for change. For example, Drizin says that if a state had abolished the death penalty for the mentally retarded, advocates hoped they could use evidence about brain development to win a ban on executing juveniles as well.

They tried to find groups within each state to push for legislative change, with JDPI members providing support, such as death penalty information and connections to the perhaps most important weapon: doctors.

Observe the Frontal Lobes

While banning juvenile executions is largely a moral issue for child advocates, the legislative strategy was to make the debate not about morality - especially the hot-button issue of the death penalty - but about science. Brain imaging technology had vastly improved the ability of scientists to pinpoint brain development and activity, and to see how much different adolescent brains were from those of adults.
Among other things, they found that areas governing impulse control and judgment are the last to develop, and are not fully functional until adulthood.

"Psychiatrists have long known and appreciated that the brains of adolescents function in fundamentally different ways than the brains of adults," Fassler says. "Now we had actual research evidence that could explain this phenomenon."

That new evidence prompted several medical societies to take a step that some of them shy away from: issuing formal stands on matters of public policy.

The trend had started before the Chicago meeting, when an Arizona psychiatrist, Mark Wellek, convinced the American Society of Adolescent Psychiatry to adopt a policy in October 2000 against the execution of anyone for crimes committed before age 18. Wellek, who had long been interested in the issue, was then president of the society.
He then helped convince the American Psychiatric Association (APA) to take the same stand. Fassler, an officer of the APA, then helped to get a similar policy passed by the American Medical Association (AMA).

"That was a big one," Fassler says. The 250,000-member AMA is considered a politically conservative group, and it "avoids taking positions on social issues," Fassler notes. Its action "was a signal that mainstream American medicine felt that there was sufficient scientific evidence to support this argument."

There were numerous signals that mainstream America agreed as well. For instance, more and more religious bodies, such as the U.S. Conference of Catholic Bishops and the United Methodist Church, were stepping up their public statements against the practice.

Getting child advocates involved was sometimes more difficult. In some states, Harper says, "there were many in child advocacy work who said, 'I agree with you completely, but if I get involved with you in this effort, I will lose whatever limited political capital we have' " in their state legislatures. "I understand," he says.
Most of the groundwork appears to have been coordinated by legal advocates and death penalty foes. National youth advocacy groups, such as the Child Welfare League of America and the Children's Defense Fund, issued policy briefs against the juvenile death penalty, sent letters to government officials on behalf of people on death row and joined the amicus briefs in the case that the Supreme Court decided last month.

Leading the charge in the states were groups like the South Dakota Peace and Justice Center, a faith-based nonprofit whose efforts included getting high school and college students to write to legislators and hold rallies. The South Dakota Coalition for Children, the state affiliate of Voices for America's Children, lobbied legislators.
The JDPI helped to connect the local organizations with medical experts like Wellek and Fassler. Having doctors testify and represent organizations like the APA brought clout that youth advocates and death penalty foes couldn't muster.

"When a medical doctor or a psychiatrist testifies in front of a legislature, they get a level of respect that advocates generally will not get," Drizin says. "They're talking about hard science. … Legislators stand up and listen."

"The brains of adolescents function in fundamentally different ways than the brains of adults," Fassler told Wyoming legislators in February 2004, pointing out sections of the brain on his plastic model.

Doctors also participated in media campaigns organized by the ABA, which included briefings for reporters about the latest research on brain development. That led to significant coverage about how the teenage brain differs from the adult brain. The ABA also posted juvenile death penalty facts and resources on its website, which helped to spread information quickly among advocates and journalists.

(The primary ABA lawyers involved in the effort now operate a separate nonprofit, the National Juvenile Defender Center, but no one was available for comment last month.)
Then the U.S. Supreme Court dropped a decision called Atkins in everyone's lap.

The Atkins Effect

The Supreme Court does not rule by public opinion. But it considers evolving public standards of what is acceptable and what is not.

In 1989, the court refused to declare the execution of mentally retarded people to be unconstitutional. But in 2002, the court reversed itself. In Atkins v. Virginia, the court cited changing national standards, noting that since 1989, the number of states that had the death penalty but barred its imposition on the mentally retarded had risen from two to 18.

For those seeking to ban the execution of juveniles, the Atkins reasoning looked identical to their arguments: less legal culpability due to brain development, and changing national standards as reflected in state laws.

"It wasn't until the Atkins case came out that we realized that perhaps this might go to the Supreme Court," Harper says.

That same year, confronted with Stanford v. Kentucky again, the court declined to hear a juvenile death penalty case. The four dissenting justices - John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer - wrote a stinging minority opinion that said executing juveniles is "a relic of the past and is inconsistent with evolving standards of decency."

How many states would have to reverse themselves to get the court to change its stance? "We wanted to have as many, if not more, states in the aggregate than the court did in Atkins," Drizin says.

They were moving toward that goal when another court decision shook the ground.

A Surprising Decision

Even by the standards of convicted murderers, Christopher Simmons was not the person one would pick as an example of why juveniles should not be executed. In 1993, when he was 17, Simmons and a 15-year-old friend murdered a woman with premeditation, just for fun. They broke into her home in Fenton, Mo., bound her hands and feet, drove to a bridge and threw her in a river. She drowned. The boys took $6.
Simmons got the death penalty, while his accomplice got life in prison.

In 2003, the Missouri Supreme Court overturned Simmons' sentence. Most striking was the court's reasoning: It used the Atkins decision to declare that the death penalty was unconstitutional for anyone under 18. Observers had expected the court to rule on the grounds of state law, but the court essentially made a constitutional ruling that the U.S. Supreme Court had rejected. The ABA called such a decision by a state court "virtually unheard of."

"We were a bit taken by surprise," Drizin says. "It was pretty apparent that this would be a case that would catch the Supreme Court's attention. It was a throw down the gauntlet kind of decision."

The court agreed in January 2004 to hear the case. It was not the case that death penalty foes would have chosen to take to the high court.

"It drove me crazy," Streib says. "Most of us expected the Supreme Court to smack them down with the back of their hand."

What's more, Harper says, "We thought we needed to get more states on board before it went to the court. We thought at some level that this was premature."
The concerted efforts since 2000 had yielded complete victories only in Indiana, South Dakota and Wyoming. Montana had acted in 1999. That meant that since 1989, seven states had banned juvenile executions: four through legislation, one (Washington) through a state court ruling, and two (New York and Kansas) when they re-established their death penalties in the 1990s.

So out of 38 states with the death penalty, 18 prohibited it for juvenile offenders, up from 11 at the time of the court's 1989 refusal to ban executions of 16- and 17-year-olds. That equaled the number that barred the execution of the mentally retarded at the time of the Atkins decision, but was less than half of all death penalty states.
The advocates felt they were making progress. In several states, bills had passed through committees, through one house of a legislature, or, in New Hampshire, through both houses, only to be vetoed by the governor. When the court agreed to hear Simmons, legislation was pending in about a half-dozen states.

There was an upside to the sudden trip to the Supreme Court: In the midst of the campaign, Harper had undergone treatment for brain cancer. "He was the inspirational center for many of us," Drizin says. "Part of our mission was to try to make this happen before Steve's brain cancer returned."

Lots of Friends

The Supreme Court would hear oral arguments in October 2004. The JDPI was not directly involved. While the state of Missouri and the attorney for Simmons prepared their legal briefs, the initiative's members were among many lawyers and physicians around the country who worked on amicus ("friend of the court") briefs supporting the death penalty ban. That's where the change in public opinion, and the work of countless advocates over the years, really showed.

"The thing that impressed us was … the huge number of groups that were interested in filing petitions" in support of the death penalty opponents, Harper says. "It was like boom, boom, boom, boom. There was this wave."

When Levick of the Juvenile Law Center in Philadelphia helped to write a brief to be signed by youth advocacy organizations, 52 signed on. They ranged from the Child Welfare League of America and Voices for America's Children to the Office of the Child Advocate in Connecticut and the Children's Action Alliance in Arizona.

Pulling together co-signers exposed a touchy issue: The arguments against the death penalty contended that juveniles have diminished capacity for rational decision-making, just the opposite of what youth advocates argue when pressing for youth rights. That, The New Republic reported last month, is why the American Civil Liberties Union wouldn't join that brief. (It joined another.)

Other amicus briefs were filed on behalf of medical and scientific organizations, 30 religious organizations, and dozens of foreign nations and bar associations.
The scientific evidence, so powerful in state legislatures, would be of less use in the Supreme Court. "I don't think the brain research has any impact at all on the constitutional issue," Streib notes.

There seemed to be little that could change the minds of seven of the nine justices. Four had written the dissenting opinion in 2002 that called the juvenile death penalty "a relic of the past." In the Atkins case, Justices William H. Rehnquist, Antonin Scalia and Clarence Thomas had dissented from the majority opinion banning the execution of the mentally retarded; they were unlikely to grant such a ban to 16- and 17-year-olds.

The key to victory was convincing either Justice Sandra Day O'Connor or Justice Anthony M. Kennedy that since the court last considered the juvenile death penalty in 1989, national and even world opinion had changed so much that there was a consensus against it. (See "Supreme Court Torn Over Executing Juveniles," October 2004, under archives at www.youthtoday.org/youthtoday.)

"What's notable is how robust this consensus is," Seth Waxman, the attorney for Simmons, told the court on the morning of Oct. 13, 2004. He stressed the consistent movement of states banning the juvenile death penalty, and noted that almost every country in the world bans it as well.

Missouri Solicitor James R. Layton argued that the changes in state laws were too few and recent to demonstrate a permanent national trend.

Justice O'Connor spoke only to note that the number of states banning juvenile executions equaled the number that banned executions of the mentally retarded at the time of the Atkins decision.

Kennedy asked several questions, and seemed torn. He wondered how much international standards should influence the United States. "World opinion is against this," he said to Layton. "Does that have any bearing on whether it's unusual?"
After the hearing, observers agreed that Kennedy was struggling with the issue. O'Connor's lone statement offered slight hope to the death penalty foes.
When the decision was released last month, Waxman had convinced one of the swing judges: Kennedy.

Kennedy even wrote the majority opinion, which focused on the trend since the late 1980s: more states banning juvenile executions, no state reversing itself after banning them, and only a few of those that kept it on the books actually carrying it out. He also noted, "The overwhelming weight of international opinion against the juvenile death penalty is not controlling here, but provides respected and significant confirmation" for the decision.

Some of the advocates felt especially happy for Harper. "One of the main motivating factors for a lot of people was to have this be part of Steve's legacy," Drizin says. "Hopefully … he will be with us for years to come.

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