Scott Hain has less than a week to live.

Execution Opens Discussion on Crime by Youths

The Oklahoma death row inmate is scheduled to die Thursday for the 1987 deaths of Michael William Houghton, 27, and Laura Lee Sanders, 22. Hain and a co-defendant kidnapped the two from a bar parking lot, forced them into the trunk of Sanders' car, drove to a rural location and burned the car with the victims inside.

A horrific crime, by anyone's standards. But Hain remains at the center of a national controversy because of his age when he committed it — 17.

Pointing to new research showing that brain development continues into the early 20s, a growing number of professional organizations are speaking out against sentencing to death those who were juveniles at the time of their crimes. And the 22 states that allow for sentencing those under 18 to death — including Utah — are coming under increasing national pressure to change their laws.

As of January, five states — Washington, New York, Kansas, Montana and Indiana -- have done so, raising the age at which people are eligible for the death penalty to 18. At least the two most recent states to change, Montana and Indiana, had no juvenile offenders on death row at the time their legislatures changed the law, said Steven Drizin, a clinical associate professor at Chicago's Northwestern Law School.

The juvenile death penalty is "a powerful statement that young people are disposable," Drizin said. "Children and teenagers are not little adults."

Utah has never executed an offender who was a juvenile at the time of their crime, either before the death penalty was temporarily outlawed in 1972 or since it was reinstated in 1976. None of the state's death row inmates were juveniles when they committed their crimes.

One state considering making the change is Nevada, where a bill that would abolish the juvenile death penalty is pending before state lawmakers.

Those who would be affected include 16-year-old Monique Maestas, who along with her 19-year-old brother Beau is charged with first-degree murder in the Jan. 22 death of 3-year-old Kristyanna Cowan in a Mesquite mobile home. They were arrested hours later in Juab County.

Authorities say the teenagers, who have family in Salt Lake City, stabbed Kristyanna and her 10-year-old sister because they were angry at the girls' parents over a bad drug deal. The older girl, officials have said, will be paralyzed as a result of the attack.

Supporters of the death penalty in general, however, say any changes to capital punishment laws should be made with caution — because prosecutors, not knowing how heinous the next crime committed might be, would rather not have their options limited.

"Youthfulness is a factor weighing against the death penalty," said Kent Morgan, deputy district attorney for Salt Lake County and a supporter of the death penalty for people who kill. "A jury should be able to consider the extreme youthfulness [of an offender]. However, I don't think it's an automatic concession. We have to look at all the circumstances."

Under Utah law, prosecutors can try anyone over 14 as an adult. Morgan said he has prosecuted cases where juvenile offenders have killed more than one person. "How many people do we have to allow to be killed before a juvenile is eligible for the death penalty?"

Nationwide, 81 people who were 16 or 17 at the time of their crime remain on death row, according to the American Bar Association, which is among groups opposing the juvenile death penalty.

The association noted in January that recent studies by Harvard Medical School, the National Institute of Mental Health and UCLA's Department of Neuroscience have shown the parts of the brain governing judgment, reasoning and impulse control are not fully developed until a person's early 20s.

Prosecutors have not yet decided whether to seek the death penalty against the Maestas siblings in the Mesquite stabbings, but say state law is clear that anyone charged with murder is tried as an adult. Monique Maestas' attorneys are attempting to have her tried in juvenile court, removing the possibility of capital punishment.

"There's a reason why we take 17- and 18-year-olds and put them in the military," said Phil Kohn, one of Monique Maestas' defense attorneys and a Clark County, Nev., special public defender. "You can convince an 18-year-old that you're invincible. Their view of life, and everything else, is different.

"When they're in a gang fight . . . it's the same [invincible] mentality," Kohn said.

He pointed not only to recent brain development studies, but also to a study released earlier this month by the John D. and Catherine T. MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice showing that many juveniles aged 15 and younger who are moved to adult court may lack the ability to understand the court process.

Kohn recalls a 14-year-old client he had years ago, who rejected a plea offer that would have offered him 10 years in prison. "How can a 14-year-old understand what 10 years is? He went to trial. Now, he's doing 40 years to life," he said.

"The kid has grown up. He's doing great in prison. He's counseling other kids. He's doing everything right, and he's got 34 more years to go. It just breaks your heart.

"It's not about being smart enough to pull a trigger," Kohn said. "It's about being smart enough not to pull the trigger."

Last year, Drizin noted, Texas was the only jurisdiction in the world to execute juvenile offenders. The U.S. and Iran are the only nations that formally allow the practice.

He compares the juvenile death penalty to executing the mentally retarded, recently outlawed by the U.S. Supreme Court. Utah lawmakers last session enacted a state law to bring the state into line with that ruling.

But the U.S. Supreme Court in January refused Hain's appeal without comment, seemingly a signal the justices are not ready to tackle the juvenile death penalty issue. Last fall, however, four of the high court's nine justices spoke against executing young killers.

Morgan said he doesn't believe the death penalty is a deterrent -- a common argument in its support -- but places importance on "the retribution of society."

By changing the law, however, Drizin said Utah has an opportunity to send a message to the rest of the country and the world.

"Utah is widely recognized as one of the nation's innovators in juvenile justice because it has created a juvenile justice system that really strives to rehabilitate young people and not just give up on them," he said. "By abolishing the juvenile death penalty, state law will become consistent with Utah's overall approach to juvenile justice which holds young people accountable . . . without crippling or killing them."

By Ashley Broughton
1 April 2003

http://www.sltrib.com/2003/Mar/03312003/utah/43500.asp

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