Introduction to the brief of the American Society for Adolescent Psychiatry and the American Orthopsychiatric Association as AMiCI curiae in support of petitioner...

Adolescent Psychiatry,  2002  by Ratner, Richard A

• E-mail
• Print
• Link

At long last, there appears to be growing opposition to the death penalty in the United States. In this bustling and self-absorbed society, issues, regardless of how important, increasingly need a "hook" in order to make it into the newspapers and thrust themselves into public consciousness. In the case of the death penalty, the hook is the new science of DNA identification and its ability, already demonstrated, to absolve innocent persons who have nonetheless ended up on the death rows of scores of states. So fallible has the system by which individuals are sentenced to death been shown to be that in 2000 Governor George Ryan of Illinois imposed a moratorium on all executions in his state until the issues are further studied.

For years, a vocal and enlightened segment of the citizenry has been railing against capital punishment for many reasons, not the least of which is the possibility that an innocent man may be executed for a crime he did not commit. But beyond this particular concern is the belief that execution itself is a cruel and unusual punishment and as such is forbidden by the Eighth Amendment to the Constitution. Death penalty opponents were heartened when the U.S. Supreme Court agreed to hear the case of Furman v. Georgia (1972), which involved a death sentence inflicted on an adult. Briefs were written to persuade the justices that the death penalty was indeed cruel and unusual, and the rulings were eagerly awaited. However, the court bitterly disappointed these critics. Although it placed a moratorium on executions, it did not invalidate capital punishment on constitutional grounds; rather, it indicated that capital punishment could still be meted out provided that the process by which it was decided on followed due process. In essence, the court gave the states a blueprint for the creation of new laws that would pass constitutional muster and under which the death penalty could, so to speak, live on.

A few years later, death rows in various states were again being filled. With their attempts to eliminate the death penalty in general shut down by these decisions, opponents of capital punishment began to look for ways to limit its impact. One obvious way was to attack the constitutionality of administering the death penalty to juveniles who had been found guilty of capital crimes committed before they reached age 18.

In 1986, the American Society for Adolescent Psychiatry (ASAP) was contacted by the New York law firm of Shearman and Sterling. Several of the firm's attorneys, acting in a pro bono capacity, were crafting an amicus curiae brief to be filed in the case of Thompson v. Oklahoma (1988), which had been accepted for hearing by the Supreme Court, and they wanted to know whether ASAP would sponsor the brief. Earlier, they had been in negotiations with Irving Phillips, M.D., of the American Academy of Child Psychiatry, but, for reasons unknown to the attorneys, the academy declined to support their effort. The American Orthopsychiatric Association (AOA) had already signed on, but the brief was going to rely heavily on issues of adolescent development and psychopathology, and for this reason the attorneys hoped to enlist the support of an organization with specific expertise in the psychology and psychopathology of adolescence. They needed an organization that would provide technical assistance in the preparation of the brief and would publicly support the document when issued.

At the enthusiastic urging of ASAP President Doris Soghor, M.D., ASAP agreed to assist in the creation of the brief and to sponsor it in conjunction with AOA. As her term as president was ending, Dr. Soghor detailed herself and me as consultants to the attorneys, and we subsequently provided them with considerable background, support, and editorial assistance. With their remarkable ability to absorb and analyze large amounts of new and complex information and the strength of their writing skills, the attorneys produced the magnificently lucid and persuasive document that is reprinted in this section.

The bases for our argument that the death penalty constitutes cruel and unusual punishment were both developmental and clinical. The developmental argument was that adolescents have not typically reached mature adulthood and as such lack the "cognitive ability, judgment and fully formed identity or character of adults" (McLaughlin et al., 1987). The clinical argument was based heavily on the work of Lewis et al. (1988), who had studied 14 juveniles on death row and found remarkable levels of neuropsychiatric abnormalities. The brief itself makes excellent and cogent reading.

Ultimately, the court found in favor of Thompson, who was 15 at the time of his crime. However, in two subsequent cases in which the same issue was posed regarding youths who were 16 and 17, respectively, at the time of their crimes, the court did not vote to spare them. A majority, 5-4, this time including Justice Sandra Day O'Connor, the swing vote, concluded that such executions did not violate contemporary standards of decency.