The right decision on the juvenile death penalty.

In Roper v. Simmons, (1) the Supreme Court reversed a 1989 precedent (2) and struck down the death penalty for crimes committed by people under age 18. Although the Court's claim that standards of decency have evolved significantly in that period is less than compelling, the result seems right.

The majority reached its conclusion in the face of a heinous murder, but that is probably because it takes a particularly compelling case for a jury to sentence a juvenile to death. When Christopher Simmons was 17, he started talking about wanting to murder someone. On several occasions he discussed a plan--to commit a burglary, then tie up the victim and push him or her from a bridge--with his friends. He said they could "get away with it" because they were minors. (3)

Following this plan, he and a younger friend broke into the home of Shirley Crook. They bound and blindfolded her with duct tape and drove her to a state park. There they walked her to a railroad trestle, tied her hands and feet with electrical wire, covered her whole face with duct tape, and threw her into the river, where she drowned.

Because Simmons later bragged about the murder, the crime was not difficult to solve. Once in custody, he confessed and performed a videotaped reenactment of the crime. (4) As a consequence, the guilt phase of the trial in Missouri state court was uncontested.

At the penalty phase, both sides brought up Simmons's age--the defense attorney arguing that he should not receive an adult sentence (meaning death) because he was not old enough to drink, serve on juries, or even see certain movies, and the prosecutor suggesting that his youthfulness made him all the more "scary." (5)

After Simmons's conviction was affirmed on appeal, the U.S. Supreme Court held in Atkins v. Virginia (6) that the Eighth Amendment's prohibition of cruel and unusual punishment proscribes execution of the mentally retarded because "mental retardation ... diminishes personal culpability even if the offender can distinguish right from wrong." (7)

Simmons then petitioned for post-conviction relief, and Missouri's high court reversed his death sentence, concluding that Atkins suggested that the Eighth Amendment also prohibited the execution of juveniles.

The U.S. Supreme Court, in the opinion by Justice Anthony Kennedy, began its analysis by saying it has long held that "evolving standards of decency" govern the prohibition of cruel and unusual punishment. (8) The Court recognized that in 1989, in Stanford v. Kentucky, (9) it had upheld the death penalty for 16-and 17-year-olds after having struck it down the previous year for those under 16. (10)

But the Court also upheld the death penalty for the retarded (11) in 1989 and then reversed that decision in Atkins. The question became whether--either because of statistics or a similarity in the moral issues involved in executing retarded and juvenile offenders--Stanford should also be reversed.

Beginning with the statistics, the Court noted that the same number of states--30--currently prohibit juvenile executions as had prohibited mentally disabled executions before Atkins. This includes the 12 states that prohibit the death penalty altogether. Moreover, only three states had actually executed a juvenile in the last 10 years. (12)

But in an illustration of former British Prime Minister Benjamin Disraeli's maxim that there are "lies, damned lies, and statistics," the dissenters pointed out that there were "currently over 70 juvenile offenders on death row in 12 different states (13 including the respondent)" (13) and that the 18 death penalty states that forbid execution of juveniles constitute only 47 percent of states that allow the death penalty. (14) "Words have no meaning if the views of less than 50 percent of the death penalty states can constitute a national consensus," Justice Antonin Scalia averred. (15)

Still, the fact that only three states have actually executed juveniles in the last 10 years does suggest that there is very limited enthusiasm for this punishment.

Moral majority

The majority was on stronger ground in noting that "capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution." (16) Since there is a scientific consensus that teenagers have "an underdeveloped sense of responsibility," (17) it is unreasonable to classify them among the most culpable offenders: "From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed." (18)

The Court tellingly recognized that this moral position was supported by the American Psychiatric Association, which forbids diagnosing any patient under 18 as a psychopath or a sociopath because psychiatrists can't distinguish between juveniles "whose crime reflects unfortunate yet transient immaturity and the rare juvenile offender whose crime reflects irreparable corruption." (19) If psychiatrists can't make that distinction, then it is too much to ask jurors to do it.

Finally, the Court pointed out that only seven countries in the world have executed juveniles since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Yet even these countries now disallow the juvenile death penalty, leaving the United States the only country to still permit. (20)

Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, noted in a brief concurrence that if death penalty standards had not evolved since the drafting of the Eighth Amendment, it would still be permissible to execute seven-year-olds. (21)

Dissenting, Justice Sandra Day O'Connor agreed that death penalty jurisprudence must depend on evolving standards of decency and that these would include developments in foreign law. However, she said, while immaturity should be taken into account in assessing whether to sentence a juvenile to death, execution should still be an option for the jury in particularly heinous cases. She argued that Atkins does not govern this case because, whereas the retarded are by definition deficient in their cognitive and moral capabilities, juveniles merely tend to be. (22) Accordingly, it should be up to the jury to make that assessment in each case.

In contrast, Scalia, joined by Chief Justice William Rehnquist and Justice Clarence Thomas, heaped scorn on every aspect of the majority opinion:

   The Court ... proclaims itself sole arbiter of
   our nation's moral standards--and in the
   course of discharging that awesome responsibility
   purports to take guidance from
   the views of foreign courts and legislatures.
   Because I do not believe the meaning of our
   Eighth Amendment, any more than the
   meaning of other provisions of our Constitution,
   should be determined by the subjective
   views of five members of this Court
   and like-minded foreigners, I dissent. (23)

As noted, Scalia's point about statistics--that those used by the Court to show that a "consensus" had developed among the states to oppose the juvenile death penalty were less than overwhelming--is well taken.

He was on weaker ground in rejecting the majority's point that juveniles are considered legally irresponsible in a number of ways, such as voting, serving on juries, and marrying without parental consent. Citing Stanford, he said that a 16-year-old is mature enough to "understand that murdering another human is profoundly wrong." (24)

But the majority would agree with this, and that's why life imprisonment of juveniles for murder is allowed. The question is not even whether an individual juvenile might have the level of moral culpability to be eligible for the death penalty. Rather, as the majority makes clear, the issue is whether we should allow juries, influenced by the facts of a heinous crime, to make that determination when professional psychiatrists are unable to do so.

Scalia also disagreed with the majority's reference to foreign sources, arguing that these are irrelevant to the meaning of our Constitution. Foreign laws are often either more liberal or more conservative than ours, he said, but so what?

Ironically, one example he used to make this point is that courts in other countries do not automatically exclude evidence in criminal cases when it is obtained unlawfully. (25) He cited former Chief Justice Warren Burger's dissent in the 1971 case Bivens v. Six Unknown Federal Narcotics Agents, arguing that the exclusionary rule was "unique to American jurisprudence." (26) This argument was later echoed by then Associate Justice Rehnquist in a 1979 opinion. (27) Rehnquist joined Scalia's opinion in Simmons.

Yet the point that Burger and Rehnquist were making in those earlier cases was that foreign law is useful in determining what our constitutional rules should be--as long as foreign law supports your position. So even if Scalia himself would never look to foreign sources to help understand our Constitution, his fellow conservatives have not hesitated to do so when it suits them.

The willingness of a substantial minority of state legislatures to allow the ultimate penalty for killers as ruthless and cold-blooded as Simmons is understandable. But the impossibility of making rational distinctions between those juveniles whose culpability is limited by their youth and those who are beyond reform justifies the conclusion of both the Supreme Court and foreign countries that execution of juvenile offenders should not be permitted.

Notes

(1.) 125 S. Ct. 1183 (2005).

(2.) Stanford v. Kentucky, 492 U.S. 361 (1989).

(3.) Simmons, 125 S. Ct. 1183, 1187.

(4.) Id. at 1188.

(5.) Id. at 1188-89.

(6.) 536 U.S. 304 (2002).

(7.) Simmons, 125 S. Ct. 1183, 1192 (summarizing Atkins, 536 U.S. 304).

(8.) Id. at 1190 (citing Trop v. Dulles, 356 U.S. 86 (1958)).

(9.) 492 U.S. 361.

(10.) Thompson v. Oklahoma, 487 U.S. 815 (1988).

(11.) Penry v. Lynaugh, 492 U.S. 302 (1989).

(12.) Simmons, 125 S. Ct. 1183, 1192.

(13.) Id. at 1211 (O'Connor, J., dissenting).

(14.) Id. at 1218 (Scalia, J., dissenting).

(15.) Id.

(16.) Id. at 1194 (citation and internal quotations omitted).

(17.) Id. at 1194.

(18.) Id. at 1195-96.

(19.) Id. at 1197.

(20.) Id. at 1199.

(21.) Id. at 1205 (Stevens, J., concurring).

(22.) Id. at 1214-15 (O'Connor, J., dissenting).

(23.) Id. at 1217 (Scalia, J., dissenting).

(24.) Id. at 1224 (Scalia, J., dissenting).

(25.) Id. at 1226 (Scalia, J., dissenting).

(26.) 403 U.S. 388, 415 (1971) (Burger, C.J., dissenting).

(27.) California v. Minjares, 443 U.S. 916, 919 (1979). In a dissenting opinion, Rehnquist noted that the United States is the "only nation in the world" in which competent evidence as to the guilt or innocence of the accused is mechanically excluded became of how it was obtained.

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at the Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].