The Juvenile Death Penalty: How Far Have We Evolved?

September 30, 2004 12:00 am

Media Contact
125 Broad Street
18th Floor
New York, NY 10004
United States

ACLU Supreme Court Preview: 2004 Term

Statement of Vivian Berger, ACLU General Counsel


WASHINGTON — One of the most significant cases on the Court’s docket this term is Roper v. Simmons, 03-633, which raises the question of whether inflicting the death penalty on offenders under the age of 18 at the time of the crime constitutes cruel and unusual punishment, in violation of the Eighth Amendment. The Missouri Supreme Court held that it did. While the ACLU opposes all forms of capital punishment, we believe there are many factors that make the juvenile death penalty especially heinous.

Simmons presents the Justices with the opportunity to overrule Stanford v. Kentucky. Decided in 1989, Stanford (a consolidated case involving defendants who had killed at the ages of 16 and 17) rejected by a bare majority the claim being urged by Christopher Simmons. A year earlier, in Thompson v. Oklahoma , a plurality joined by Justice O’Connor concurring in the judgment overturned the death sentence imposed on a 15-year-old offender. At present, the Eighth Amendment line has thus been drawn at age 16.

Because the legal landscape has changed in relevant ways since the late 1980’s, Simmons provides the Court with an overdue opportunity to end to what Justice Stevens has rightly called a “”shameful practice”” (In re Stanford , 2002, dissent). Four members of the current Court — Justices Souter, Ginsburg and Breyer as well as Stevens, the author of Thompson — are already on record as ready to overrule Stanford. On this, as on so many other issues, either Justice O’Connor or Justice Kennedy is the most likely fifth vote.

For a long time, the Court has determined whether a practice is cruel and unusual by looking to the “”evolving standards of decency that mark the progress of a maturing society”” ( Trop v. Dulles , 1858). Its members have, however, divided over the proper scope of this inquiry. While all would look to pertinent statutes as well as sentencing verdicts by juries as indicators of whether Americans have set their face against death for juveniles, the liberal contingent also regards international opinion and the views of professional and religious bodies as relevant factors.

By contrast, Justice Scalia (who wrote for the Court in Stanford ), Justice Thomas, and Chief Justice Rehnquist have strongly inveighed against considering the world community’s notions of justice. Undisputed, however, is the fact that countenancing death for minors makes the United States a virtual pariah among nations: since 2000, the only countries other than ours to have executed juvenile offenders are Iran, Pakistan and the Democratic Republic of Congo.

In any event, a legislative “”headcount”” limited to the United States reveals that a total of 31 jurisdictions (30 states plus the federal government) do not allow death-sentencing of juveniles; that is an increase of seven since Stanford. (Twelve jurisdictions have abolished capital punishment entirely.) Even where permitted to do so, moreover, jurors very rarely impose the death penalty on youths. Juvenile executions are especially infrequent; only 22 have occurred since 1976 – 18 of these in Texas, Virginia and Oklahoma. These numbers strongly suggest that society has reached a consensus against this “”shameful practice.””

In addition to examining evolving standards, the Court must make its own judgment whether, in the context at issue, the death penalty is disproportionate to the defendant’s culpability, on the ground that it fails to contribute measurably to retribution and deterrence — the “”acceptable”” goals of capital punishment. Simmons contends that on this score, too, his death sentence does not pass muster. Among other things, he argues that 16- and 17-year-olds lack a fully formed capacity to exercise rational, mature judgment and control their conduct. Not only are they less deterrable and blameworthy than adults, but also they suffer from greater disadvantages in coping with the adjudicative process.

Developments in a parallel area of death penalty jurisprudence augur well for Simmons’ cause. Penry v. Lynaugh, decided the same day as Stanford, rejected a categorical attack on death-sentencing the mentally retarded. But in 2002, in Atkins v. Virginia, the Justices overruled Penry, relying on grounds that seem to apply equally in the juvenile setting — such as the steadily increasing number of jurisdictions outlawing the practice (in Atkins , also 31), the defendants’ diminished deterrability and blameworthiness, and their reduced ability to function in the criminal justice system.

Numerous amici curiae, including child advocacy organizations, psychological and medical associations, and former United States diplomats, have filed briefs in support of Simmons. The ACLU has signed on to a brief by civil rights groups which documents the disproportionate influence of racial discrimination in the infliction of death on minors.

The ACLU amicus brief in Roper v. Simmons is online at /node/3360

Sign up to be the first to hear about how to take action.