Justice and Juveniles
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RAY SUAREZ: Now four different views on juveniles and the death penalty. Bryan Stevenson is a professor at New York University Law School and the executive director of the Equal Justice Initiative in Montgomery, Alabama. Right now there are 14 teen offenders on Death Row in Alabama. Robert Horan is the commonwealth attorney, that’s district attorney, for Fairfax County in Virginia. The state does prosecute juvenile offenders in capital cases. Nancy Gannon is the deputy executive director of the Coalition for Juvenile Justice. And Michael Rushford is the president of the Criminal Justice Legal Foundation. Bryan Stevenson in the law as written, and in our custom, what is the difference between a serious crime committed by a minor, and one of the same crime committed by someone who let’s say is in their early 20s?
BRYAN STEVENSON: Well, the difference isn’t in the crime it’s in the culpability of the offender. We recognize that kids change; that children change. And because of that, we assign different culpability to their behaviors than we do an adult. It’s the same thinking that has convinced us that 16 and 17 year olds are too young to vote; they’re too young to drink; they’re too young to see certain kinds of movies. There is a difference between an adult and a 16 or 17-year-old. And there’s a difference in the way we think about as appropriate punishment.
RAY SUAREZ: Robert Horan, do you agree that there is a reduced responsibility among minors?
ROBERT HORAN: It depends on the juvenile and it depends on the crime. Just as you have juveniles far brighter than their compatriots or more athletic than their compatriots or more anything, you also have some juveniles far more brutal than their compatriots who knowingly and willingly go out and commit brutal offenses. And the law in Virginia and the law in most of the states that allow capital cases for juveniles is that you look at the crime and you look at the criminal, youth itself is a mitigating factor in almost every state in the union that has capital punishment and the jury of 12 has to decide based on the evidence in front of them, is this one of those cases that gets over the line into capital punishment.
And juries do that; I think they do it in the worst cases. The fact of the matter is only a miniscule percentage of murders qualify for capital punishment — the same way with juveniles committing murder – only a miniscule percentage of juveniles are even eligible for capital punishment. And eventually, if the case gets through a lot of different hurdles, eventually, a jury of 12 will decide whether this is one, where the proper response to the behavior is capital punishment.
RAY SUAREZ: Well, Nancy Gannon you heard Mr. Horan talk about the variability among minors is there something arbitrary about someone’s 18th birthday that makes them different?
NANCY GANNON: I think it’s important from a public safety perspective to think that teenagers do not have reduced responsibility. The Coalition for Juvenile Justice is non-partisan we work in all the states — in states where the juvenile death penalty is permitted. But our perspective is that we need to be very careful about the role of the juvenile court. The death penalty has serious flaws in the way that it works. There are legal problems. There’s racial discrimination that is well documented. And for juvenile court, youth, kids who are involved with the juvenile court, the function of society is to serve as a wise parent and a careful disciplinarian, and given those flaws in that it is an irreversible punish, it’s a no-win situation. We cannot be a wise disciplinarian and be flawless with the death penalty.
RAY SUAREZ: But you’ve brought up the juvenile courts several times, and in many states with the increased prosecution of minors as adults, the juvenile court is less of a player, isn’t it?
NANCY GANNON: Well, it has become less of a player as public perception and fear has driven more punitive policies. But that is not keeping in sync with what we know about child development. Just in the last couple of years it’s been clear that experts say that a 16 or 17 year-old’s brain simply does not operate the same way as the young adults’ brain. Those four or five years make a huge difference in terms of judgment and behavior. And I believe that is what the Texas courts are looking at today.
We have to take into consideration — as every parent of a teenager knows or every one of us who remembers being a teenager –that the understanding of cause and effect, the consequences of one’s actions is very different for a 16-year-old than a 22-year-old. And Bryan in fact spoke to that in terms of other laws. We have pediatric medicine, we have special education programs for teenagers and we have laws that restrict driving, drinking, voting, “R” rated movies. All of these recognize the difference between a 16-year-old and a 21-year-old.
RAY SUAREZ: Michael Rushford, is there a difference between a 16-year-old and a 21-year-old before the bar?
MICHAEL RUSHFORD: I think before the bar, there certainly is depending on the crime. But I think it’s important to draw the distinction. We are talking about the sophistication about the defendant as an individual and the nature of the crime. And again, I don’t think you can make a blanket statement about all 16-year-olds or 17-year-olds or 18 year olds share the same functional abilities. And also I think that the reason the public has become more concerned about juvenile murderers in particular is because of the level of juvenile crime and the number of totally remorseless kind of murders exactly like this case that we are discussing tonight where for the guy’s car keys he was executed and they attempted to kill his wife. This is a terrible kind of crime and I think most Americans have the right to be frightened of that kind of an offender.
RAY SUAREZ: Do you think the function of the trial itself helps a jury, helps a judge tease apart which ones are the less responsible, more responsible, less remorseful, more remorseful individuals who are charged with the same crime?
MICHAEL RUSHFORD: Absolutely. The process is designed to present the evidence to a jury of 12 people. And the defense is entitled to, as a matter of fact by law, required to present mitigating evidence with regard to the defendant, his age, his inexperience, his prior record — things that he has done well, his family, so that the jury can make an informed decision. I think the recent case in Florida, of Nathaniel Brazzil is a good example of a jury finding a way to sympathize with a young defendant in a serious case and give him a lesser punishment than he would have an adult. And I think that occurs in capital cases as well based on the age of the defendant.
RAY SUAREZ: Bryan Stevenson, how about that notion that a trial helps settle these subtle differences?
BRYAN STEVENSON: I think a trial does exactly the opposite. We think we can identify which kids among the universe of kids who commit crimes are especially bad. I don’t think we can. We have a system that does not work very reliably in that respect, and what we tend to do is identify the kids who look different from us, who seem somehow easier to imagine as someone we should execute, which is why most of the kids who have been sentenced to death in America are people of color, most are poor, and most have been put into situation where they didn’t get adequate representation. If this system really was working as is being suggested, Nathan Beazley would not be on Death Row. He had no prior criminal record. He was not the kind of person who had a history that would suggest that his behavior in this particular instance was reflective of somebody who was beyond redemption.
I don’t think we make exceptions for kids when we start talking about voting and driving and access to alcohol, we don’t say smart kids are going to get to vote and kids who aren’t so smart aren’t going to get to vote. And we don’t go into the world where we think we can pick and choose and we shouldn’t do it here where the consequences are so final. These kids – once they’re executed – are dead. We don’t get a chance to re-evaluate our decisions, and I don’t think we’ve evolved to the point where we can make mature, sensible distinctions between children and figuring out who should live and who should die.
RAY SUAREZ: Well, Robert Horan, does the fact that we’re even having this conversation reflect a shift in the recent past in the court system, in the way we handle juveniles and in public opinion about how the law should be carried out?
ROBERT HORAN: I’m not sure that the American has been anything other than ambivalent about capital punishment for the last century. 1924, the sage of Baltimore, H.L. Menchen, they asked Menchen did capital punishment work in the United States? Menchen said, we don’t; we’ve never tried it. You could say almost the same thing today. Just look at what happens with cases; they go on for 10, 12, 13 years after conviction, that’s what happens, because we are ambivalent. I tried a juvenile who was 17 in the early part of the 90′s for attempted rape from an Ethiopian woman. She got away from him; he chased her and killed her at the front door of her apartment. That was his third murder in five days.
He was a crack dealer who killed another crack dealer in the District of Columbia on the 9th of October. Two nights later over in Prince George’s County he saw a guy with a good looking gold chain; he decided he would be a good guy to rob. He put the gun on him outside of a telephone booth, took his money and took his chain, and when the guy wouldn’t give up his wedding ring, he killed him — because he wouldn’t give up his wedding ring. The night after that is when he attempted to rape the Ethiopian woman who was driving down the highway, bothering nobody, followed her to the apartment, chased her, attempted to rape her, she got away from him, and he killed her.
RAY SUAREZ: Let me stop you there and throw this to Nancy Gannon, because people who support capital punishment for juveniles say that it is just these variables that Mr. Horan was talking about: The seriousness of the crime — the size and magnitude of the offense that changes from person to person and a bright shining line of age shouldn’t put certain people beyond the reach of the capital penalty.
NANCY GANNON: That is understood. And clearly an organization like the Coalition for Juvenile Justice wants to uphold public safety; that is our first and primary interest. And so in that sense we have that in common with crime victims and people who believe as Mr. Horan spoke of. But there is tremendous ambivalence. We have 38 states that allow the death penalty, 14 of which do not allow juveniles to get the death penalty, right their policymakers, as well as the public have made some judgment about what’s appropriate. The United States now has executed more than half of the juvenile offenders that have been executed in the world in the last four years. We stand in defiance of international treaties on human rights and civil rights.
My message is that we need to ask some questions about why we’re doing this — and to make sure that it’s not a knee-jerk reaction. What people want is for the death sentences to be commuted to life in prison. Or what people want is what they’ve done in Texas where there’s more juvenile executions that have taken place — or executions of juvenile offenders have taken place than any other state. In Texas there is a program for capital offenders that reduces recidivism when they are released and they are only released if they are fully rehabilitated and they’re incapacitated otherwise in the juvenile or adult system. This upholds public safety.
RAY SUAREZ: Michael Rushford you heard Ms. Gannon talk about how the United States is the odd man among wealthy industrialized countries when it comes to the treatment of juvenile felons. Does that give you pause?
MICHAEL RUSHFORD: All murderers, actually. But I think it speaks more to the fact that we have a real a democracy in this country and people can enact laws that they feel they need to protect themselves. It’s common knowledge that a majority of British subjects believe that they should have capital punishment but they do not have the level of democracy we do here. And they simply can’t enact a law to have capital punishment. I also think most Europeans probably would support the death penalty for the people that blew Pan Am Flight 103 out of the sky a few years back. But they don’t have the level of government and the level of freedom to express themselves that we do in this country.
States in the United States can enact a death penalty law. We’ve done it twice in California. And they expect it to see it enforced for the exactly the kind of criminal that the prosecutor described or for someone like Mr. Beazley who cold-bloodedly executed a man for his car keys. I think when you put those kinds of cases, describe those cases to the American public, you will get the same kind of response that they gave when they were asked if Timothy McVeigh should be executed — you are well over 80 percent. And I really believe that the public has a right to see its laws enforced and to see its safety protected in that manner against this horrible, worst kind of murderer.
RAY SUAREZ: Guests, thank you all for joining me.