A nation's shame: children on death row

Stephen K. Harper and Steven A. Drizin 


THE RECENT executions of three juvenile offenders is a stunning indication of how far America has fallen from its position as the world's champion of children's and human rights. 

For years, the United States has been using economic sanctions and incentives to force other countries to comply with established standards of human decency. In our view, these executions should trigger similar domestic and international action against the United States and those individual states that continue to execute juvenile offenders. 

Virginia executed Douglas Christopher Thomas and Steven Roach on Jan. 10 and Jan. 13, respectively, and Texas executed Glen McGinnis on Jan. 25. These executions were carried out notwithstanding appeals from the European Union, American Bar Association and even Pope John Paul II, who asked Gov. George W. Bush of Texas to commute McGinnis' sentence to life in prison. 

Waiting in the wings are approximately 70 other juvenile offenders who are currently on death rows throughout this country. 

One hundred years ago, America led the international community in its thinking about how to treat children in trouble with the law, creating the world's first juvenile court in 1899.  Outraged by the treatment of children in prisons and following the lessons of the nascent human sciences, reformers created a system based on the notion that children were developmentally different than adults. 

Children aren't adults 

They recognized that adolescence was a transitional period of life where cognitive abilities, judgment, impulse control and identity were still being developed.  In creating juvenile courts, Americans recognized the simple truth that adolescents were simply less culpable than adults for their misdeeds while being more amenable to rehabilitative treatment. 

By 1925, 46 states had created separate courts for children as did many other countries throughout the world, including most of Europe and countries as diverse as Canada, Argentina, India, Madagascar, Japan and Brazil. 

Fifty years later, in the wake of the Nazi atrocities, the United States once again led international community, this time in the field of human rights. The United States, led by Eleanor Roosevelt, was instrumental in drafting the Universal Declaration of Human Rights, the bedrock document articulating the most fundamental principals of human rights. 

Backward steps 

But as America moves into a new millennium, it has become increasingly out of step with the rest of the world in its policies with regard to human rights and, in particular, its treatment of troubled children. And nothing demonstrates this more than the atavistic and barbaric policy of executing juvenile offenders. 

The United States is in the company of only six other countries in the world known to have executed juvenile offenders in the past decade — Yemen, China, Iran, Nigeria, Pakistan and Saudi Arabia. China and Yemen have recently outlawed this practice. 

In the 1990s, Amnesty International has documented 19 cases of child offenders who were executed. Ten were executed in the United States — more than all of the other countries combined. 

The United States has had many opportunities to join the global consensus against executing juveniles. A total of 191 countries — all but the United States and the collapsed state of Somalia — have now ratified the 10-year-old U.N. Convention on the Rights of the Child, which forbids the death penalty against persons under the age of 18. 

The United States has also specifically reserved its right to ignore the ban on executing juveniles contained in the International Covenant on Civil and Political Rights. 

It is ironic that the country that views itself as the human rights champion of the world — a country that leads international efforts to ban child labor abuses and to promote child health — retains the practice of executing juvenile offenders. 

Yet, the U.S. government refuses to take a stand against the execution of juveniles in deference to the right of individual states to set the minimum age for execution. Out of 38 death penalty states, 23 allow the death penalty for children under the age of 18. 

What will it take? 

What will it take to get these states to stop executing minors? Appealing to the hearts and minds of state legislators and governors doesn't seem to work in an age where playing upon fears and getting "tough on crime" are more politically expedient. Such efforts have failed to stop the executions of children and mentally retarded adults in the past. 

Perhaps, the only road to change is to borrow a page from the U.S. play book when it comes to human rights violators — exert economic pressure and sanctions. Domestic and international corporations might want to reconsider relocating or investing in states that execute adolescent offenders. Investors and consumers might add this factor into their decision making. 

Indeed, an organized economic boycott in South Carolina is forcing that state to seriously reconsider flying the Confederate flag at its state capitol. And similar such boycotts by the National Football League and other businesses moved the Arizona citizenry into recognizing Martin Luther King Jr.'s birthday as a holiday. 

Foreign pressure 

Already, the 15 countries of the European Union, all of whom have outlawed the death penalty, have begun to exert some pressure. 

In July 1998, in a letter to Gov. Bush, the Chairman of the European Parliament's Delegation for Relations warned that many European companies, under pressure from their shareholders, were considering restricting their investments in states that apply the death penalty. The European Parliament, which ratifies foreign trade accords and has final authority over the European Union's budget, controls billions of dollars in foreign investment. 

European investment in Texas, for example, supports 184,500 jobs, 39 percent of which are high-paying manufacturing jobs. Of the $67.5 billion invested in the Texas economy from around the world, 56 percent, or $38.1 billion, comes from Europe. Europe is also Texas' No. 2 export market, with $8.8 billion in goods bought in 1996. 

In this new "global economy," where economic interdependence is critical, the United States, and its individual states, will need to compete more aggressively for more investment and trade from both domestic and international sources. This reliance could give consumers, investors, corporations and foreign governments greater leverage in influencing human rights policies within the United States. 

We can think of no better place to start exercising this economic muscle than in persuading the states to cease executing juvenile offenders. 

Stephen K. Harper is an attorney and adjunct professor at the University of Miami School of Law. Steven A. Drizin is the supervising attorney of the Children and Family Justice Center at Northwestern University's School of Law. 


Originally published on Feb 21 2000