If the death penalty becomes an option for children under sixteen, the unavoidable conclusion must be that we have reverted back to colonial theories of punishment. The issue facing the nation will again become at what age to draw the line. In this article I argue that, as a society, we must prevent such executions and refute claims that, as a result of the failure of the juvenile justice system to rehabilitate killers before they kill, a consensus in favor of reducing the minimum age of execution has evolved. Part II of this note presents the theories of colonial crime and punishment, which ultimately led to the creation and waiver of juvenile jurisdiction. Parts III and IV discuss the history of the United States capital punishment system, with an emphasis on its application to juveniles through the landmark United States Supreme Court decisions in Thompson v. Oklahoma and Stanford v. Kentucky. Part V examines the impact of recent juvenile murders on our evolving standards of decency, in light of the political manipulation of the dual misperceptions that juvenile crime is on the rise and that juvenile murderers are not amenable to rehabilitation. Finally, I conclude by warning against a reversion back to colonial theories of punishment by imposing death upon children under sixteen.
Note, When Something Wicked This Way Comes: Evolving Standards of Indecency - Thompson and Stanford Revisited, 46 Clev. St. L. Rev. 801 (1999)