Heath Wilkins, on death row at age 20. He admitted the killing of Nancy Allen, even pleaded for the death sentence himself. But can a developing adolescent be held as accountable as an adult?
March 12, 1989
By Ron Rosenbaum
I was scared. I knew something was gonna happen," Heath Wilkins recalls. "My life had become unbearable to me. It was the first time I was out on my own, the first time nobody was responsible for me - see what I'm saying?"
We're in a holding cell in the Clay County Detention Center, down the block from the Jesse James Bank Museum in Liberty, Mo. Heath Wilkins is describing his state of mind in 1985, when he was 16 years old, sleeping in a kiddie park and about to commit the murder that would send him to death row.
That murder - even more, that state of mind - will be at the heart of the matter on March 27 when the Supreme Court takes up Wilkins v. Missouri (in tandem with Stanford v. Kentucky) and begins to decide whether up to 27 juvenile murderers in American prisons will live or die.
Last June, in Thompson v. Oklahoma, the Court narrowly ruled against the execution of William Wayne Thompson, who was 15 years old at the time of his crime, in effect making 16 the minimum age for execution in the United States. The next day, the Court agreed to consider the Wilkins case, and by extension, whether it would spare 16-year-old offenders as well. But the closely divided plurality in the Thompson case left in doubt the Court's future direction in the "juvenile death penalty" cases which now constitute the cutting edge of capital punishment litigation.
What the debate comes down to is the enigma of the adolescent mind, specifically of adolescent moral development. Do juveniles have the moral autonomy to be "depraved," the way the worst adult killers are said to be "knowingly depraved"? How old does one have to be to be capable of conscious evil?
Heath Wilkins, who is now 20, is something of an enigma himself. In fact, he reveals himself, in a four-hour jail-cell interview, to be almost as deeply divided as the courts on the question of whether he should die.
Shortly after pleading guilty to the 1985 stabbing of Nancy Allen, a 27-year-old mother of two, in the course of a liquor store robbery in Avondale, Mo., Wilkins "fired" his public defender and, in a bizarre penalty-phase hearing, tried to call witnesses to prosecute the case for the death penalty against himself. If his choice was between the horror of lifetime confinement and death by execution, he told the court, he'd take death because "one I fear, the other I don't." On June 27, 1986, a Clay County judge sentenced Wilkins to the fate he sought. Then, a year and a half later, at the last moment, he had a change of heart and signed on to the state public defender's Supreme Court appeal of his death sentence.
Even now, he says, he doesn't feel justified in pleading for his life."In my opinion, I got what I deserved," he told me. "I would like a chance, but I don't think I can ask for it. In a way, that makes all this [the Supreme Court appeal] easier to deal with, see what I'm saying? It's better than the situation in Soviet prisons. They're innocent."
Here in the narrow holding cell, there are moments when Wilkins, who is not in leg irons during this interview, could pass, on the surface, for a typically restless, gawky American adolescent of the non-Satanist heavy-metal, good-old-boy subspecies. The kind of kid you might see wearing a feed-lot gimme-cap to a Rush concert at the Speedway.
But there are many more ways in which he is neither a typical teen-ager nor a typical "teen killer." He's probably the only active Smithsonian member on Death Row; he uses his membership discount to send off for aeronautics books in Air and Space/ Smithsonian magazine. In his cell, he designs what he describes as improvements on "twin-propeller drive systems" for ultralight aircraft. He reads 20th-century Russian novelists and on occasion displays a bitter, satiric way with words of his own. He calls the mental-health counselors in juvenile institutions "the mental machines of society" and claims he learned to fool them by "playing" their therapy game "like Stalin played socialism."
Searching for the right combination of words to express his complicated thoughts on contrition and punishment, he'll lean forward, narrowing his eyes, and punctuate almost everything he says with the addition or interjection of, "See what I'm saying?"
Habitual as this is, it seems to reflect a real urgency to be understood. A psychiatrist at the Menninger Clinic in Topeka, Kan., picked up on this urgency in poems the boy had written and came up with a striking image to describe it. He called it "a form of reparation for his own sense of badness ... analogous to the current program of telecasting radio messages into outer space in the hope, against all odds, that a distant being will hear and understand the message."
And so, while Wilkins isn't sure he wants to save his life, he is willing to attempt to explain it. With his account, and with corroborative material from court files and interviews, it's possible to re-create his state of mind at the time of his crime, the state of mind the Supreme Court will be addressing, the one that drove Heath Wilkins in his final weeks of freedom direct from a children's playground to death row.
Penguin Park, where the killer and his girlfriend were living.
In Aug. 2, 1985, an undercover informant told the Kansas City Police metro squad be had information on the murder of Nancy Allen six days earlier.
The kids responsible, the informer said, were hanging out in Penguin Park. Ron Nicola, a metro squad detective, recalls the peculiar way the report sounded when it came in: "He said there's a bunch of cement animals and stuff there in Penguin Park and [the suspects] were living in the kangaroo."
Penguin Park is a one-acre piece of scrubby grass in Kansas City, dominated by three-story-high cement statues of cartoonish animals. There's the jolly-looking, eponymous penguin and next to it, the enormous mamma kangaroo, resting a protective maternal paw on a wide-eyed baby kangaroo gazing apprehensively out at the world from the security of the 10-foot-high marsupial pouch.
In his holding cell, Heath Wilkins stares at a Polaroid taken at the park. "Yeah, this is where we lived, right in here," he says, pointing to the pouch of the kangaroo. "We never slept in the penguin. It smelled."
He explains the sleeping arrangements: "I slept here," he says, pointing to the packed dirt base at the bottom of the pouch, "and Midget, my girlfriend, would sleep up on the top next to the baby. You know, you can lie down there."
It was only the third time he'd been in love, he says. He met her when they were both in juvenile detention. Called her up as soon as they were both out.
"I'm not the kind to just - I only went with girlfriends I'd fallen in love with," he says. "I'm a real classical character like that."
He had no home to go to; she had a home but didn't want to be there. She'd left it taking $800 with her, which paid for a cheap motel room for the two of them for about a month.
When the money ran out and they had no place to sleep but the kangaroo, the two of them talked of somehow getting out to California. There was even a report in a prosecution file that they'd gone window shopping for wedding rings.
"Yeah," he says softly, when asked about it. "Yeah. Yeah. Forgot about that. Huh." He shakes his head. "In Helzberg's jewelers, at the mall."
It wasn’t much of a life they had together. Heath and Midget spent their days at the Antioch Shopping Center, scrounging for food with a couple of other homeless teen-agers who went by the streets names Bo and Shades. Someone would shoplift some slices from Show Biz Pizza; they'd play some Robotron at the video arcade. At night, they'd drift back to nearby Sherwood lake. Someone would shoplift some cigarettes, maybe a bottle of peach schnapps, from Linda's Liquors. Then they'd go down by the lake, drink, smoke, maybe trip out on "black dragon," a homemade drug Wilkins said was LSD.
Heath Wilkins liked black dragon. When he took it, he once told a psychiatrist, "he could see the individual molecules of things." It "caused sound to be turned into liquid that would pour through his head, through his ears." And "when he closed his eyes, he could imagine anything."
When he opened them, however, the reality was that things were closing in on him. He knew “something scary was coming,” Wilkins told me.
What he recalls most about the days leading up to the crime, he says, is "how hungry we were all the time..., I was starved. We were down to looking for money in the dirt on the side of the road."
It was his first time on his own. He'd been under the supervision of juvenile authorities since the age of 8, after he'd apparently attempted to poison one of his mother's boyfriends, who, he claimed, had beaten and terrorized him. Two years later, he was removed from his mother's custody, and subsequent petty crimes kept him incarcerated most of the rest of his life. He'd hated confinement, but now that he was free he was "scared all the time."
At the core of his panic was his realization that "nobody was responsible for me any more." His only official guardians were the juvenile authorities, but they'd lost track of him.
Court records make it possible to pinpoint the moment when a stitch was dropped in the social safety net and Heath Wilkins fell through. It happened one month before the murder, when Wilkins "freaked out and acted crazy," ranting and raving, in order, he says now, to get himself kicked out of a Job Corps camp in Clearview, Utah.
The Job Corps stint was supposed to be a fulfillment of a juvenile probation period for a burglary Heath had committed at age 15. When the Job Corps put him on a plane back to Kansas City, the juvenile authorities released him to the custody of his mother. But his mother, a credit card company employee, refused to let him stay with her. He'd always been too much trouble, and anyway, he was the state's responsibility. (Since Wilkins's death sentence, he and his mother have reconciled.)
The juvenile authorities were only belatedly made aware that Wilkins was homeless. A notation in the files mentions reports that Wilkins -who'd been diagnosed as having "suicidal" and "homicidal" tendencies at age 10 - was living "on the streets.." Follow-up was recommended but by then it was too late.
Heath's tale of his attempts to live on his own in the month before the murder is one episode after another of rejection, eviction and humiliation. For a few days after he got back from Utah, Heath slept in the back seat of a trashed-out car parked in front of a friend's place a few doors down from his mother's home. But the friend evicted him from the junk heap, "because it didn't look good. It was politics before friendship, see what I'm saying?"
Then another "friend" who had given him a place to stay confiscated his wages from a part-time ditch-digging job as "back rent" and evicted him. Then there was a convoluted dispute with a treetrimmer over wages at another job, which ended, Wilkins says, when the tree-trimmer threatened his life.
“I thought he was gonna come after me, kill me. That's when I went to Penguin Park. Had no place else to go."
He saw no way out of the kangaroo. Except one vague, slim hope in the form of a broken motorcycle.
"Some guy I knew had a bike, a 750 that was busted. I figured if I could buy it, I could fix it up, head down to Arkansas." In Arkansas he thought he could look for the father he hadn't seen since he was 5. To execute this escape plan, though, he'd first have to find a way to buy the busted 750.
The single ground rule of my interview with Wilkins, insisted on by his public defender, Sean O'Brien, was that Wilkins wouldn't talk about the actual commission of the crime.
The facts of the matter, however, are simple: On the night of July 27, 1985, Heath, his girlfriend Midget and their friends Bo and Shades planned to carry out a robbery. "It was my plan," Heath told me. "Every decision." He had chosen the objective, the cottage-like building called Linda's Liquors.
Heath and Bo arrived there shortly before 11. Heath ordered a sandwich. Bo hid in the bathroom. Heath asked for extra lettuce. When the woman in the store turned her back, Bo emerged from hiding. And Heath pulled a knife.
Larry Harman, the prosecutor. It was the killer's comparison of the victim to a trash can that clinched his decision to seek the death penalty. As Harman recalls it, Wilkins said "the best thing to do is kick it out of your way,"
Nancy Allen's husband, David, was on duty that night at the North Kansas City Bureau of Investigation. It's really just a private security firm with an official-sounding name, but it provided services to Linda's Liquors and Deli, a little bottle and sandwich shop. David and Nancy Allen were a young couple struggling to raise two kids in a declining, blue-collar neighborhood of North Kansas City. David's brother, Robert Allen, thinking the extra income would help out, had offered Nancy a job at Linda's Liquors, which he co-owned. It was the night shift, and she'd be alone in the place, but her husband would be watching over her from the nearby North Kansas City Bureau of Investigation. Indeed, every night around midnight, when Nancy would lock up and prepare to leave, she'd flip a switch in Linda's Liquors and a signal light would go on at N.K.C.B.I., indicating everything was O.K. and the alarms were set for the night.
That night, the light didn't come on at 12. When David tried to call his wife, no one picked up the phone. He ordered one of the N.K.C.B.I. patrol cars over to Linda's Liquors. He called 911. On the phone tape, his voice can be heard, full of dread, urging the police to "hurry, it's my wife!"
Larry Harman wants Heath Wilkins to die. It was Harman who, as Clay County prosecutor in 1985, went to Linda's Liquors that night in time to see the body when the eight bloody stab wounds were still fresh. And it was Harman who, at the sentencing hearing in 1986 - the one in which Wilkins made the case for his own death- made the crucial decision to throw the weight of the state behind the teen-ager's death wish.
Harman still thinks Heath Wilkins deserves to be executed, and to prove it, takes me on a tour. He takes me to the kiddie-park kangaroo where the murder was planned and tells me that because of Wilkins's youth, he "struggled" with the decision to ask for death, says he didn't finally decide "until the very, very last moment" to ask the judge for it. ("Yes, he was young," Harman told the sentencing hearing. "But the victim was young.")
He takes me to the Clay County sheriff's office, shows me police photos of the body, points out the stab wounds in the neck and reminds me that after Wilkins stabbed Nancy Allen in the back, the chest and the heart, he then stabbed her in the throat four times, "to silence her pleading for her life."
And then back at his private law office, Harman opens a drawer and pulls out a gleaming, thin-bladed "butterfly" knife, which, he says, is an exact replica of the one Heath Wilkins used on Nancy Allen, a knife, he tells me, Wilkins had "sharpened to a razor edge with a black diamond file."
Finally, in his car, Harman tells me exactly where he places Heath Wilkins on his personal, two-tier hierarchy of evil among murderers. There are ordinary killers, he says, and then there are the ones so egregiously evil he could "pop a cap" on them himself. "Pop a cap?" I ask.
"Cop talk for dropping the cyanide capsules in a gas chamber execution.” (Missouri only recently shifted its mode of execution from the gas chamber to lethal injection.)
He gives me an example of another particularly brutal murderer he could execute with his own two hands: William John Wirth, a 59-year-old sex killer, now serving a life sentence.
“I could do William Wirth," he says.
But Heath Wilkins, Harman tells me, "is scarier than William Wirth by a long shot. Heath Wilkins is a bright, intelligent, young man with a disturbed, absurd and bizarre sense of judgment. Heath is dangerous."
What clinches the case against Wilkins, exhibit A of the cold-blooded depravity of his state of mind, is, Harman says, "the trash can comparison."
The trash can comparison was the centerpiece of Harman's final successful plea to the judge for death for Wilkins. It still may turn out to be the single line that costs Wilkins his life.
It was something Wilkins said to one of his Menninger psychiatrists in describing why he decided to kill Nancy Allen instead of just taking the cash register money and leaving. Wilkins told the doctor he had nothing "personal" against Nancy Allen, except that, as a potential future witness against him, she represented an inconvenience.
"He compared her to a trash can in his path," Harman says. "If you walk around it on your way in, you have to walk around it on your way out. So the best thing to do is kick it out of your way."
Larry's just way off," says Sean O'Brien. "I don't see how, in 100 years you could just say that Heath is worse than Bill Wirth. There's a guy who raped his own granddaughter, then left a trail of rape, pillage and murder across three states. No way."
O'Brien, chief of the Kansas City public defender's office, is representing Heath Wilkins in a "post-conviction relief" action (that would allow him to withdraw his guilty plea), separate from the Supreme Court death sentence challenge. (Another of the state's public defenders, Nancy A. McKerrow, will be making the Supreme Court argument.)
O'Brien calls his client an abused, self-destructive kid who was in a psychotic state when he committed his crime, a kid who then manipulated the court into giving him the death penalty. If it's carried out, O'Brien says, it will be "a state-assisted suicide."
O'Brien points out that an independent psychiatric evaluation by the state's Department of Mental Health, which was commissioned by the Missouri Supreme Court, flatly declared Wilkins not mentally competent to waive his right to an attorney and forgo his death penalty appeal.
“That's a major defect any way you look at it, but the State Supreme Court glossed over it because they've been terribly anxious to execute somebody. They've affirmed about 70 death sentences in the last 10 years but they haven't been able to execute anyone since 1965, since they're getting reversed or stayed by the Eighth Circuit or the Supreme Court.
"They're frustrated," he says, "and along comes Heath and they thought they had a volunteer. They didn't care. It was a 16-year-old volunteer. They just wanted to forge ahead." (In January, shortly after O'Brien spoke, Missouri carried out its first execution in 24 years.)
As for the trash can comparison, O'Brien points out Wilkins offered it at a time he was trying to manipulate the court into giving him the death penalty he knew was reserved for murderers who exhibit cold-blooded depravity.
O'Brien in no way minimizes the gravity of the crime. But he denies that the state of mind that produced it was anything like that of a coldblooded killer. Instead, he sees it as a tragedy that wouldn't have happened if official neglect hadn't left Wilkins homeless and desperate. "Everybody along the line washed their hands of Heath," O'Brien says.
But, he adds, desperation alone was not enough to trigger the crime. In addition, there were symptoms of psychosis diagnosed by several psychiatrists - the legacy of an abused childhood typical, studies show, of juveniles who become murderers.
The evidence for that is easy to find in Wilkins's past, O'Brien says, but not the way Wilkins himself now tells it. According to Wilkins, the turning point in his life was the result of a stupid juvenile misunderstanding.
It happened when he was 12 years old, detained in a home for juveniles, for petty thievery, but still with a dream of the future.
"I wanted to be in the Air Force. I loved science, I loved flying with all my heart. I hated being locked up, but I could spend all day studying flying."
Then one day that dream was shattered. "These Air Force people came in to talk about careers and I asked them if being in trouble as a juvenile would prevent me from getting into the Air Force. They said only if your crime was really serious. Now everybody had been coming down on me so much about how I had to realize what a serious crime it was I'd done, that I just figured that was it. I just quit. After that I had no future. It wasn't 'till later that I learned I'd been wrong, but by then the score was against me as a law-abiding citizen."
He tells a number of similar tales of adolescent disillusionments. They don't, of course, add up to the whole story, don't explain the viciousness with which he stabbed Nancy Allen. O'Brien, in effect, calls these stories a cover-up for the history of abuse Heath no longer wishes to discuss.
Psychiatric and diagnostic records tell a different, darker story of his childhood, one that Heath will only confirm reluctantly now that he's had a reconciliation with his mother. The trouble began while he was still in the womb, when his father, a cropdusting pilot, was badly burned and scarred in a crash. The family didn't survive the aftermath, and following the divorce Heath was subjected to sexual abuse by a male baby sitter and physical abuse by a boyfriend of his mother. According to what Heath told psychiatrists and attorneys, substance abuse was forced on him at age 5, when he was fed speed by an adult relative and dropped off at kindergarten as a kind of "experiment" for the amusement of one of the adults in his house.
His only escape from the torment, he told me, was to go out into the garage and "huff gasoline" -suck the fumes into his lungs until his brain buzzed and "I'd look up at the trees and hear voices calling my name."
He did that, by his recollection at least 500 times in grade school.
There's a remarkable fantasy Wilkins expounded to a psychiatrist about a man who painted a picture and did not like the finished product. " 'This is ugly, this is helpless,"' the man in Heath's fantasy says, according to the psychiatrist's report. "'It didn't do any good.' So he threw it away, threw it away in the trash."
It speaks to O'Brien's contention that by the time Wilkins had gotten to the point where he could compare his victim to a trash can, he had already reached a place where he himself felt used up and thrown away, like a piece of trash.
In the holding cell, I ask Wilkins directly if, in the trash can comparison, he was saying he thought his own life had become nothing but trash. Wilkins pauses for an unusually long time. "No, I'm not trying to absolve myself of responsibility," he says. "I knew it was a terrible crime. I knew I had to change my mental outlook."
Has his mental outlook changed? The question is pertinent because opponents of the death penalty, in addition to arguing that juveniles lack full moral culpability, also say juveniles ought to be spared because they have greater rehabilitative potential than adult killers. They're less hardened in crime, have more time to mature and change.
Wilkins says he dates the moment he knew he had to change his life to the night of the murder, when he came back from stabbing Nancy Allen to death and saw the look on his girlfriend's face.
He says he "felt nothing until I got back and saw her...It was what I saw in her face, when she'd seen I'd actually done it. See what I'm saying?...I saw four lives destroyed, not including mine." (His girlfriend, Marjone (Midget) Filipiak, who did not accompany Heath to Linda's Liquors, pleaded guilty to conspiracy to commit murder and received a suspended 15-year sentence and five years probation. Ray (Shades) Thompson Jr., who also stayed behind, pleaded guilty to a similar charge, and is serving 15 years in prison. Patrick Kelly (Bo) Stevens, who pleaded guilty to second-degree murder, is now in prison for life.)
It was, Wilkins says, "the worst moment of my life." He felt the enormity of what he'd done, realized he couldn't go through with other robbery-murders he'd planned and decided "to seek my own death." He says that in the first few weeks after his arrest, he tried to hang himself in his cell "night after night." It wasn't until 1986, after he'd arrived on death row, when someone put a Bible on his bed, he says, that he "got saved" and started thinking about life rather than death.
He still feels he owes a life for the one he took; in our interview, he repeatedly expresses remorse for the pain he caused the victim and her family, says he thought of writing them to tell them, but then worried he'd just hurt them more by reminding them of him. These days, he's allowed himself to think about the possibility of life enough to fantasize what he might do if he were ever free: "Go to Australia, the outback ... get a pilot's license." And ride the desert thermals in lighter-than-air craft of his own design.
Needless to say, some skepticism is in order, not merely of the death row conversion but of someone who has boasted of "playing" therapy language "like Stalin played socialism."
More suggestive of change than the abstract language of contrition, perhaps, are the stories Wilkins tells about his reaction to death row life -what it's like, for instance, to watch trash-TV crime shows that are popular with other convicts.
Heath recalls watching an episode of "Unsolved Mysteries" about a cop killing. There was a reenactment. "It showed the cop shot, dying. And this guy sitting there says 'yeah,' like 'good,' and he automatically thinks I agree with him. I can't, man, I mean he didn't have to [kill this cop]. Think of the guy's wife." Then Wilkins talks about what he says is his real fantasy: Atoning for his own crime by giving up his life to save a cop. "Maybe in a prison riot I could save a cop's life. I'm not saying it would make up for the life I took, except symbolically. I still feel I'd probably have to give up my own life, too, for that. See what I'm saying?"
Sean O'Brien calls the change Wilkins has gone through "a rehabilitative response to confinement." Perhaps it might also be called "death row therapy." Wilkins seems to have been genuinely shocked and horrified by the state's "worst killers," with whom he's now confined. Which seems somehow to have galvanized him to define himself against them.
"You know they say you are what you eat; I'm surrounded by deranged psychotic killers. That's the atmosphere I drink in. What they do is make life around them as horrible as it is inside them, you know what I'm saying? My struggle is to keep from being that way."
At the very least, it can't be argued against Wilkins that he's portraying himself as penitent in order to escape the executioner. The single most urgent thing he communicates to me is that he still prefers the executioner to lifetime confinement, the most likely alternative should the Supreme Court set aside his death sentence. Over and over again, he expresses horror at the notion of lifetime confinement. Asked how he'd react if he ended up serving life without possibility of parole, he says: "It's like somebody discussing holding their hand in a flame for an hour. It's the first few seconds I'm worried about."
I asked him if maybe people underestimated the deterrent power that the fear of lifetime confinement without parole might have.
"Absolutely," he said. "Death isn't a scary thing to someone who's hurting inside so bad they're hurting other people. They're looking for death as a way out."
Three and a half years after his wife's murder, I tried to reach David Allen, but his own brother doesn't know where he is. I had a brief, strained conversation with the brother, Robert Allen, who couldn't tell me what had become of David.
"He hasn't talked to me in two years."
“Why blame you?”
"I gave her the job there," he says, barely audibly. "I was only trying to help out."
Does Robert Allen think Wilkins should live or die? He confirms that he originally favored the death penalty for Wilkins, but that when he learned that Wilkins was asking for death instead of life, Allen decided he wanted Wilkins to get life instead of death.
What about now, with Wilkins at least formally joined to a Supreme Court appeal against his death sentence?
"Whatever he doesn't want," Allen says. Then he pauses and says something different. "It shouldn't be his decision."
A TANGLED WEB FOR THE SUPREME COURT
Since 1642, when Plymouth Colony, Mass., hanged a teen-age boy for the crime of bestiality, 281 juvenile offenders have been executed in the United States. The most recent was in 1986, when Texas executed a murderer who was 17 at the time of his crime.
Although there are only 27 now facing execution for murder, juveniles commit about 9 percent of the homicides in the United States, according to Prof. Victor L. Streib of Cleveland State University's Cleveland-Marshall College of Law. Professor Streib is a recognized authority on the history of the juvenile death penalty - and one of its leading opponents.
But arguing the Supreme Court cases against the juvenile death penalty has turned out to be a trickier matter than might be supposed. The American Civil Liberties Union, for instance, long a crusader against the death penalty per se, has been stymied by an internal split over the philosophical grounding for its brief against the execution of juveniles, a split which has effectively silenced it in the Wilkins case.
To understand the A.C.L.U. dilemma, it's necessary to look at the way recent Supreme Court decisions in death-penalty cases have structured the debate on the question.
If there's a continuous thread in the sometimes-contradictory outcomes of the High Court's rulings on the death penalty in the last two decades, it has been the effort to "rationalize'- some say sanitize - through multiple overlays of due process, the fact that the state is sanctioning a bloody act, a kind of retributive ritual murder. The impulse to make the ritual rational is common to the Court's 1972 decision in Furman v. Georgia, which called a temporary halt to executions and to its 1976 decision in Gregg v. Georgia that began the process, of allowing the individual states to perform executions again.
The majority in the 5-4 Furman decision to suspend capital punishment disagreed on their reasons for it. While liberals like Justice William J. Brennan Jr. condemned the death penalty as a "denial of the executed person's humanity," the line of thought that prevailed was less categorical. Not a horror of the death penalty per se, but a horror of the process in which this "unique penalty" was "so wantonly and freakishly imposed," in the words of Justice Potter Stewart. There were so many inequities and disparities in the methods used by the states to choose who should live or die, that the death penalty as imposed, Justice Stewart said, was "cruel and unusual in the same way that being struck by lightning is cruel and unusual."
This reasoning, in effect, turned out to be an invitation to those who believe in capital punishment to frame state death-penalty laws and procedures in a more "rational" way, one that exhibits "informed selectivity," as Justice Brennan called it in Furman, so that supposedly only the very worst murderers are executed. In other words: prove to the Court that a given murderer really deserves to be struck by lightning, and we'll let you electrocute him.
Central to most of the new state statutes that arose as a consequence was a separate jury consideration of the death penalty question. Often called "penalty-phase hearings," they are supposed to bring forth both aggravating and mitigating factors that the jury weighs in deciding whether the defendant is truly among the "worst" murderers.
Opponents of the juvenile death penalty have focused their arguments on what might be called presumptive mitigation of adolescence - that the universally recognized turmoil of the adolescent psyche is a kind of "diminished capacity" which should exempt juveniles from the full fatal force of the death penalty statutes. If they have a presumptive incapacity to vote, drink or serve on juries, the reasoning goes, they should also be ineligible for the death penalty.
But this argument is exactly what caused the split in the liberal ranks of the A.C.L.U. Last year, a brief drafted for the A.C.L.U. in the Supreme Court appeal of William Wayne Thompson, who killed when he was 15, was then attacked by some A.C.L.U. lawyers. The challenge faulted the initial brief for its emphasis on the incapacity of juveniles to make moral, even rational decisions.
Janet Benshoff of the group's Reproductive Rights Project, complained that the A.C.L.U. was arguing in her cases that,- for instance, teen-aged girls do have sufficient rational capacity to give "informed consent" to end a pregnancy - without the parental notification an increasing number of states now require to discourage teen-age abortions.
After much wrangling, the two factions failed to reconcile their positions, and the A.C.L.U. failed to file briefs in either the Thompson or the Wilkins case.
Henry Schwarzschild of the A.C.L.U.'s Capital Punishment Project says the logic of Benshoff's side "forces me to say that in order to oppose restrictions on abortion, I have to favor hanging 15-year-old girls."
Benshoff calls that characterization "too weird," and warns that by taking the position that teenagers aren't moral creatures, the A.C.L.U. might, in effect, be writing into Constitutional law an outmoded concept of juvenile autonomy that will rob adolescents of liberties they now enjoy.
Benshoff believes there is a way to transcend this controversy over metaphysics and morals and still oppose execution of juveniles. She suggests that a stronger basis for opposing the juvenile death penalty is the almost self-evident proposition that juveniles have a rehabilitative potential that hardened-in-depravity adult murderers "selected" for death by due process do not. This potential, she says -and the lifetime to develop it- should be the element of presumptive mitigation that disqualifies them for the ultimate penalty.
Oddly enough, in view of this liberal paralysis, it was the relatively conservative American Bar Association which filed the most unexpectedly eloquent brief in the Wilkins case. The Bar Association has twice voted down resolutions opposing the death penalty itself. But its Wilkins brief flatly states that it is "central to our perceptions of ourselves as a civilized society" that we don't execute offenders under the age of 18.
Ron Rosenbaum, a contributing editor of Vanity Fair, is at work on a novel for Viking.