The practice of imposing the death penalty for crimes committed while under the age of eighteen has occurred sporadically but persistently throughout American history. It gives every indication of continuing in this mode under current law and practice. Greatly differing approaches are followed by the various states as to the authorization and imposition of capital punishment for juveniles. This article explores the existence of a constitutionally-mandated minimum age below which the states may not venture in carrying out this practice. If such a nationwide minimum age exists or should exist, its justification can be found in current interpretations of the eighth amendment to the United States Constitution. As the next section of this article documents, the practice of capital punishment of juveniles has been rare but not so rare that it can be ignored. The remainder of this article considers, point by point, the factors deemed important by the United States Supreme Court in determining whether capital punishment is prohibited by the eighth amendment. A fundamental theme is the mistake of uncritically transferring constitutionality conclusions from adult capital offender cases to juvenile capital offender cases. Justice Frankfurter's observation pervades this analysis: "Children [have] a very special place in life which the law should reflect.” Thus, when examining the law and practice of capital punishment, juveniles traditionally have not been, and should not be, treated the same as adults for this or any other legal purpose.
Victor L. Streib, The Eighth Amendment and Capital Punishment of Juveniles, 34 Clev. St. L. Rev. 363 (1985-1986)