Heh this is everything we've learnt these two weeks.

Too young to face death sentence?
[2011] 25 Aug_ST

Title: Too young to face death sentence?
Source: Straits Times
Author: Andy Ho

Legal News Archive


THIS week, a 16-year-old allegedly stabbed a 25-year-old in Geylang. In Singapore, no one under 18 may be sentenced to death.

In law, a person under 14 is considered a 'child' and one between 14 and 16 is a 'young person'. All those under 16 are held to be less culpable presumably because they have less education, less experience and a less developed character compared with adults.

Yet some aged 16 or 17 are capable of the most heinous crimes. Undeniably, there are some 16- or 17-year-olds who may be as mature as and can be even more vicious than the average adult.

In committing crimes, these 16- or 17-year-olds may show cold premeditation, extreme cruelty and wanton depravity. If one of the two social purposes behind the death penalty is retribution, then such criminals should be slapped with the maximum penalty of death.

The other social objective of capital punishment is deterrence. Some like to argue that those aged 16 or 17 may not weigh the costs and benefits of their actions carefully enough. If so, a clear deterrent is all the more necessary.

Otherwise, criminally minded 16- or 17-year-olds (or crime syndicates and terrorist cells with such young members) might exploit the fact that they cannot be sentenced to death.

Of course, the death penalty will not deter every twisted 16- or 17-year-old murderer-to-be. But some can be deterred. And while some may not be culpable enough, there are those who are.

The scientific consensus is that the last stage of cognitive development - problem-solving by applying theories and using pure thought - takes place between the ages 11 and 15. So whatever scientific evidence that was used to justify exempting 16- and 17-year-olds was likely flawed.

This was indeed the case when the United States also outlawed capital punishment for criminals under 18. In Roper versus Simmons (2005), a 5-4 plurality of the judges on the Supreme Court ruled thus, based on flawed science presented by the American Psychiatric Association (APA).

In a brief it submitted voluntarily to the court in support of the 17-year-old murderer involved, the APA twisted various studies of cognitive development in childhood to conclude: 'The typical adolescent is... more vulnerable to peer pressure than an adult (so that one) who spends time with risk-prone friends is more likely to engage in risky behaviour.'

The APA used data about 11-year-olds as if it applied equally to all juveniles, regardless of age. How likely is a 16- or 17-year-old's risk-taking behaviour the same as that of an 11-year-old? Not likely.

There was also cherry-picking of studies. For example, a study the APA cited for points other than risk-taking actually said 'adolescents may care very much what their peers think of them but that apparently does not necessarily mean that their decisions about engaging in risky behaviour are heavily influenced by peers'.

Overall, many of the studies the APA cited did not support its argument that those who are 16 or 17 are not culpable enough to deserve the death penalty. In fact, in many of these studies, the evidence offered was to the contrary.

Most of the studies cited merely concluded that many aspects of juvenile cognitive development remained unstudied. So, at a minimum, the culpability of 16- and 17-year-olds needs further study.

In sum, the available science does not say that those who are 16 and 17 do not have sufficient culpability and maturity to be sentenced to death. Curiously, the APA position on this issue is diametrically opposed to that which it holds regarding abortion rights for 14-year-olds.

In Hodgson versus Minnesota (1990), the APA had also voluntarily submitted a brief to the court to argue that 14-year-olds were mature enough to decide on an abortion without parental notification.

In that instance, the APA's review of studies concluded that 'by middle adolescence (age 14 to 15), young people develop abilities similar to adults in reasoning about moral dilemmas (and) understanding social rules and laws'. It concluded: 'By age 14, most adolescents have developed adult-like intellectual and social capabilities including specific abilities outlined in the law as necessary for... considering risks and benefits.'

Had science since 1990 shown the reverse such that 14-year-olds are no longer mature enough to decide on abortions? The APA might want to deny that. Indeed, in the last 30 years, a doctrine has emerged in biomedical ethics such that it is now considered right for minors who demonstrate sufficient maturity to be permitted to make life-and-death therapeutic decisions for themselves.

This right has even been recognised in some US court cases. For example, a 17-year-old with leukaemia (in the legal case of E.G., Illinois, 1989) was found mature enough to refuse treatment though it would lead to death within a month. Conversely, another 17-year-old cancer patient (in the legal case of Long Island Jewish Medical Centre, New York, 1990) who was judged to be not mature enough was not permitted to do likewise.

If 16- and 17-year-olds can have such life-and-death rights, they should also be held responsible for other moral decisions they make, including murder. In law, as always, the key is to adjudicate everything case by case.