Juvenile death sentences nullified
The Supreme Court ruled 5-4 on Tuesday that the death penalty “is a disproportionate punishment for juveniles,” and thus it violates the Eighth Amendment to impose a death sentence on a youthful murderer who committed the crime before age 18. Today, the Court said, “society views juveniles as categorically less culpable than the average criminal.”
While conceding that drawing the line against capital punishment at age 18 might be debatable, the Court said: “The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.”
Justice Anthony M. Kennedy announced the decision in Roper v. Simmons (docket 03-633). The case involved a Missourian, Christopher Simmons, who was 17 at the time of a crime that led to a death sentence.
“The differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty despite insufficient culpability,” Kennedy wrote. “When a juvenile offender commits a heinous crime, the state can exact forfeiture of some of the most basic liberties, but the state cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”
His opinion was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. Justice Stevens wrote a brief concurring opinion, praising the Court for modernizing its view of the Eighth Amendment. Both Justices Sandra Day O’Connor and Antonin Scalia wrote dissenting opinions. Scalia’s dissent was joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas. Scalia recited at length from his dissent after Kennedy announced the ruling.
The decision overturned a 5-4 decision by the Court in 1989, in Stanford v. Kentucky, allowing the execution of murderers who committed their crimes when they were 16 or 17 years old. (The Court had ruled in Thompson v. Oklahoma in 1988 that individuals under age 16 at the time of their crimes could not be given death sentences.) In the Stanford decision, the Court majority found there was no national consensus against executing those between ages 15 and 18.
In overturning the Stanford ruling, the Court on Tuesday also cast aside a statement made by four Justices in that 1989 decision that the Court should not use its own independent judgment to decide whether the death penalty was too great a punishment for particular groups of individuals or crimes. The rejection in Stanford of that role for the Court, Kennedy wrote, is “inconsistent with prior Eighth Amendment decisions.” (Kennedy was one of the four who endorsed that statement; he did not explicitly explain on Tuesday his change of mind, but he noted that the Court had abandoned that statement when it ruled, in 2002, in Atkins v. Virginia, that the death penalty is unconstitutional for mentally retarded individuals.)
In finding now a national consensus against execution of juvenile offenders, the Court majority noted that 30 states now bar such sentences — 12 that have abolished the death penalty for all persons, and 18 that retain the death penalty but do not allow it for juveniles. Even in the 20 states that have not formally banned it, by legislation or court ruling, the majority said, “the practice is infrequent.” In the 16 years since 1989, it noted, six states have executed juveniles for their crimes, but, in the past 10 years, only three have done so: Oklahoma, Texas and Virginia.
Kentucky, Kennedy’s opinion noted, will not execute Kevin Stanford — the individual involved in the 1989 case — because the governor commuted his death sentence in 2003.
Kennedy conceded that, in contrast to the pace of states’ abolition of the death penalty for the mentally retarded, the rate of change regarding juveniles has been slower. Though less dramatic, the opinion said, the change remains significant. “Since Stanford, no state that previously prohibited capital punishment for juveniles has reinstated it,” Kennedy wrote. The Court also said that the trend away from executing juveniles was a consistent one.
Besides relying upon that trend, the Court also cited scientific and sociological studies showing significant differences between juveniles under 18 and adults, including less sense of responsibility, susceptibility to negative influences, and the lack of fully-formed character. “The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character,” the majority commented. “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.”
The Court also found that the two social purposes that the death penalty serves — retribution and deterrence — have less force, or none at all, with regard to juvenile offenders. The same characteristics of youth that make then less culpable than adults also suggest they will be less susceptible to deterrence, the opinion suggested.
The Court, in finding a new consensus against executing juveniles, also relied upon what it called “the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” While it said that is not “controlling,” since it was the Court’s responsibility to interpret the Eighth Amendment, it added that since 1958 the Court “has referred to the laws of other countries and to international authorities as instructive” in defining the meaning of that Amendment.
Taking a side in the ongoing debate within the Court over the role that law in other nations and in the world should play in the interpretation of the U.S. Constitution, the majority declared: “It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty.”
Justice O’Connor, in a dissenting opinion speaking only for herself, said the Court had not found a genuine national consensus against juvenile executions, so, she said, it simply relied on its own independent moral judgment that death is a disproportionate penalty for any 17-year-old offender. “I do not subscribe to this judgment…The Court has adduced no evidence impeaching the seemingly reasonable conclusion reached by many state legislatures that at least some 17-year-old murderers are sufficiently mature to deserve the death penalty in an appropriate case.”
Justice Scalia, in a markedly bitter dissent, condemned every facet of the Court’s approach to the Eighth Amendment issue. He said the consensus discerned by the majority was on “the flimsiest of grounds,” and he argued that the Court illegitimately had cast aside the judgment of the people’s representatives, and substituted its own proclamation of itself as “the sole arbiter of our nation’s moral standards.” He also lambasted the majority for its reliance upon what he called “like-minded foreigners.”
Supreme Court Bans Juvenile Death Penalty
AP Reports: The Supreme Court ruled Tuesday that the Constitution forbids the execution of killers who were under 18 when they committed their crimes, ending a practice used in 19 states. The 5-4 decision throws out the death sentences of…
Comment by TalkLeft: The Politics of Crime — March 1, 2005 @ 10:52 am
The Kids Are Alright
First, I support the death penalty. I don’t support it for juveniles, though, and I think it should be more selectively applied
Comment by Restless Mania — March 1, 2005 @ 10:55 am
For his next community service project, Justice Kennedy will be reading the hidden chapter of “Gone with the Wind” in which Scarlett marries a Yankee, moves to New York and gets a job in a factory to make ends meet.
Comment by KBiel — March 1, 2005 @ 11:13 am
Terrible ruling. Imagine what this ruling tells a young gang banger. Life in prison carries a lesser sting than the death penalty for these people. The liberals have done it again.
Comment by Robert Briggs — March 1, 2005 @ 11:19 am
Death penalty for juvenile offenders unconstitutional 15 years later
Another preposterous Eighth Amendment Cruel and Unusual Clause decision from this damned Court. I’ll probably have more to say when less busy and less disgusted. For now, a note on an obsequious concurrence filed by Mr. Justice Stevens, and joined…
Comment by New World Man - Matt? Matt's not here — March 1, 2005 @ 12:28 pm
changes, changes
Desite the efforts of many, the death penalty as applied to juveniles is now unconstitutional. I will have more to say later. UPDATE: SCOTUSBlog has a discussion here, Douglas Berman has discussions here and here and here, and some folks…
Comment by Crescat Sententia — March 1, 2005 @ 12:39 pm
changes, changes
Desite the efforts of many, the death penalty as applied to juveniles is now unconstitutional. I will have more to say later. UPDATE: SCOTUSBlog has a discussion here, Douglas Berman has discussions here and here and here, and some folks…
Comment by Crescat Sententia — March 1, 2005 @ 12:39 pm
Court Bans Juvenile Executions
In a 5-4 decision, the Supreme Court ruled today that the execution of juvenile offenders violates the Eighth Amendment because “society views juveniles as categorically less culpable than the average criminal.” This decision in Roper v. Simmons overtu…
Comment by ACSBlog: The Blog of the American Constitution Society — March 1, 2005 @ 12:43 pm
Supreme Court Finds Death Penalty for Juvenile Killers Unconstitutional
Good news. The Associated Press reports: The Supreme Court ruled Tuesday that the Constitution forbids the execution of killers who were under 18 when they committed their crimes, ending a practice used in 19 states. The 5-4 decision throws out
Comment by Fables of the reconstruction — March 1, 2005 @ 2:41 pm
Today’s Ruling by SCOTUS based on International Op
My Way News and SCOTUSblog is reporting that juvenile death sentences, which, until now were legal in 19 states, have been nullified by the Supreme Court. The majority on the court, once again turned to the opinions of the international community and…
Comment by Isn't It Rich — March 1, 2005 @ 2:53 pm
This decision does in fact comport with an enormous body of law, juvenile and adult, despite the dissents’ assertions. Indeed, anyone involved with the law realizes that all judicial decisions are just that–decisions by men and women, with precedent tacked on for support. Personally speaking, those in favor of the death penalty at all should look at how it is applied and it’s record as a near complete failure at deterrence. It is an angry practice that places the US among the elite of the inhuman-practices heap in the world.
Comment by Keith & Karen — March 1, 2005 @ 4:25 pm
Juvy Death Penalty Unconsitutional
Currently, I have no interest in parsing the constitutional rationales of the 5-4 decision to rule as unconsitutional the execution of minors. Seeing as I oppose the death penalty in the first place (outside its invocation by the military, of course, a…
Comment by Polemic Propaganda — March 1, 2005 @ 4:43 pm
Well, since the Supreme Court now looks to unratified treaties as a basis for its’ holding, the House of Representatives should follow Thomas Jefferson’s advice regarding Justices that refuse to uphold the constitution—begin impeachment proceedings.
Comment by Ignatius Reilly — March 1, 2005 @ 7:54 pm
Roper Reporting
In addition to the cite by Justice Scalia of the Ohio State Law Journal in Roper v. Simmons (pdf), there are many other elements of the decision worthy of attention. For others’ opinions and information on the case, in which…
Comment by Law Dork — March 1, 2005 @ 8:13 pm
What a horrendous ruling. This ruling clearly stares the tenth amendment (”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) in the face and laughs at it. What difference does it make that “Kennedy conceded that, in contrast to the pace of states’ abolition of the death penalty for the mentally retarded, the rate of change regarding juveniles has been slower. Though less dramatic, the opinion said, the change remains significant. ‘Since Stanford, no state that previously prohibited capital punishment for juveniles has reinstated it,” Kennedy wrote. The Court also said that the trend away from executing juveniles was a consistent one.’
This is judicial activism at its worst. Each state clearly has the right to punish its criminals as it sees fit. What recourse do we have if our ELECTED representatives, no long have the ability to make laws. When will people realize the Supreme Court has overstepped its bounds? One can only hope that when Breyer, Stevens, Ginsburg, and Stevens leave the court, they are replaced with individuals who see the need to interperet the law as it is written, not as they decree.
Comment by Steve Beaver — March 1, 2005 @ 8:14 pm
If SCOTUS has the ‘power’ to undermine elected bodies and their legislation on the basis of a minority of other ‘like minded’ elected bodies and foreign law and treaties not Constitutionally ratified, all of our “inalienable” rights are, indeed, challengeable and under threat. Second amendment is next!!
Comment by Scott McKeown — March 1, 2005 @ 10:27 pm
Cruel and unusual punishments are not within the power of the state. Once said punishment is determined, the 10A is met. Determining what ‘cruel and unusual’ in part can be a matter of looking to the world, since they are not some alien lifeform, but has relevance. The holding did not rely on it, so comments about unratified treaties are largely besides the point.
How the Court got there might be debatable at points, but the basic holding is sound. A few death sentences for minors are clearly arbitrary. And, youth alone lessens guilt and deterence effect enough to warrant treating it differently. So, I second Keith and Karen.
The governor in this very case commuted the sentence of the named plaintiff (ditto in the case it overruled, Stanford), suggesting the penalty of life was not deemed so trivial as one suggested. And, it looks like Justice Kennedy wasn’t convinced by the brief suggesting otherwise.
Finally, the fact a few states have the law on its book shouldn’t ignore the fact that only a handful actually carries it out.
Comment by Joe — March 1, 2005 @ 11:29 pm
Contrary to Steve Beaver, the Eight Amendment prohibits the infliction of an unusual punishment. Thus, each state does not have carte blanche to punish criminals as it sees fit, but is bound to punish them only in non-unusual and non-cruel ways.
Indeed, there is nothing to suggest that “unusual” means anything other than what it says, and I would have hoped that a supposed strict constructionist like Scalia would know that, but his eagerness to see criminals die may have gotten in the way of his jurisprudence.
If something is not done by any other nation, it is, per force, unusual. How hard is that to understand?
Scalia professes confusion at how this logic should apply to the Eight Amendment and not the rest of the law. The answer is simple: no other constitutional provision makes reference to broad standards of usualness. The exclusionary rule, which he notes, is unusual, but the constitution does not prohibit unusual evidentiary rules. It only prohibits unusual punishments, and prohibit them it does.
Comment by Thomas Bushnell, BSG — March 2, 2005 @ 12:53 am
From a non-lawyer perspective this opinion is plain funny. To state that 17 year olds as a group cannot comprehend the consequence of their actions was refuted by the facts of this case. Simmons said he would get away with it because he was a minor. I thought a judge was supposed to rule on the facts of the case and not on some broad assertion of social statistics. This young murderer not only was competent, but is probably a genuis. To be able to predict the outcome of a Supreme Court case is far more than I am capable of.
Comment by Matt Nellans — March 2, 2005 @ 11:25 am
Wow, I am just astounded by the logical disconnect by those supporting this ruling. If the court decides that execution is cruel and/or unusual for a particular class of citizens then it should be held so for all citizens. In this case, the court tries to split a hair based on maturity. By what evidence, scientific or otherwise, does Justice Kennedy arrive at the magic number of 18 for being mature enough to deserve the death penalty? By state law which is really the consensus of the people? By public opinion polls? By scientific evidence presented in the case? By constitutional provision? No, he used none of these to support his argument. Justice Kennedy did not even use precedent as fifteen years earlier, he ruled quite differently on the exact same subject! Rather he relies on foreign laws, opinions, and treaties to bolster his opinion where the constitution is silent. Thomas Jefferson is saying “I told you so.”
No the objection to this opinion is not on merits of the case, but on the Supreme Court deciding to be the five person legislature for not just the Federal government, but for each and every state.
Reasonable people may be able to disagree about what age someone becomes fully responsible for their actions, but that is an argument to made in a state legislature. There is nothing in the US constitution that speaks to the age of responsibility. Therefore, state legislatures should and must retain the authority to decide this matter.
Comment by KBiel — March 2, 2005 @ 12:11 pm
“Unusual” should indeed mean what it says, which is: a State can’t treat one convict differently than similarly situated convicts. Is the death penalty authorized to be considered and imposed on others like Simmons in Missouri?
The punishment would be “unusual,” per the plain meaning of that word, if Missouri did not have the death penalty, but made an exception in Simmons’ particular case. Or if the jury sentenced him to have his arm and ear hacked off. Or held underwater for five minutes.
The rule of law and, if I may be intemperate enough to suggest, the Eighth Amendment itself, should require that punishments be designated beforehand and applied by objective, standard procedures.
If we’re to consider whether a punishment is authorized in other countries in order to square it with the “unusual” provision of the Eighth Amendment, shouldn’t we be prepared for State laws authorizing flogging, torture, beatings and mutilation?
Comment by Matt Barr — March 2, 2005 @ 12:29 pm
How can there be said to be a “national consensus” on this issue when there is no consensus within the very court that proclaims this alleged “consensus”? A 5-4 decision that posits a “consensus” contradicts itself. Bizarre.
Comment by CivilWarGuy — March 2, 2005 @ 12:43 pm
Unusual
What does the Eighth Amendment mean by “unusual”? One SCOTUSblog commenter suggests: Indeed, there is nothing to suggest that “unusual” means anything other than what it says, and I would have hoped that a supposed strict constructionist like Scalia wo…
Comment by New World Man - Matt? Matt's not here — March 2, 2005 @ 12:48 pm
Miscellany
I think that would be a good name for a poem, Miscellany, but I’ll leave things like that to Scoplaw. Page Stopwatch Fixed: Have any of you who are as nitpicky as I am noticed that the text at the…
Comment by In Limine — March 3, 2005 @ 11:34 am
I am a criminal defence attorney in South Africa and I follow your country’s Supreme Court decisions avidly.
Mostly because our constitutional court (constitutional decisions are referred to a specialist court) regularly quote at length from US court decisions to support their own. In this regard I disagree with Judge Scalia. Foreign courts, like our own, those in England, Australia and Canada regularly quote foreign decisions (including US ones) to support their views on consitutional clauses similar to those in the US constitution. After all, the US jurists have had a much longer time than the rest of us to practice and implement constitutional democracy!
We abolished the death penalty for under 18’s in 1917 and the death penalty was declared unconstitutional in 1995.
However, I cannot see from the jusdgement of the court whether it has made the decision that children under 18 should in all cases be treated as ‘children’ as defined within this judgement. Does this mean that all children who commit crimes when they are under 18 should now receive some sort of deferment on their sentencing because of their age? I am interested in hearing whether this means that children may no longer be treated as adults in penalty phase at all? Does this take harsh sentences like life without parole or long term prison sentences off the table completely as these are usually punishments reserved for adults of full mental capacity? The majority opinion seems to foster the view that based on certain criteria concerning mental capabilities children should always be treated as wanton human beings incapable of directing their vacilating thoughts. Surely this means that children who commit crimes may never be treated as adults in penalty phase or even in the merits phase of a trial?
Although the judgement is in my personal view correct, I would suggest it was not very well written or reasoned.
Comment by David Spohr — March 4, 2005 @ 10:46 am
Mr. Spohr’s comments on how South African courts “quote at length from US court decisions to support their own” illustrates the problems Justice Scalia’s dissent exposed in Justice Kennedy’s opinion. It is precisely the fact that Justice Kennedy, and like minded judges both in the US and abroad, cherry-pick only those foreign decisions that back up their own view, while ignoring those that don’t. The purported use of foreign law as a basis for decision turns out in reality to be a very selective use.
Comment by CivilWarGuy — March 9, 2005 @ 1:18 am
I absolutely agree that foreign judgements should not be a basis for deciding the law of one’s own country. If a court does so, it is abdicating its resposibility to apply and interpret the laws pertaining to the territory over which it holds jurisdiction.
However, foreign judgements do have a certain value in argument to help convince a court to a point of view. A view of Australian and Canadian judgements will prove this.
With most of the world moving toward the US concept of constitutional democracies, it helps the courts in common law jurisdictions, like South Africa, Canada, Australia and New Zealand to see what foreign jurists under a similar legal system, faced with similar situations have done in the past. In this regard the body of jurisprudence the US provides is immense and extremely helpful when preparing cases that raise constitutional issues.
Foreign decisions should not be the deciding factor in a case, but they can certainly help the court hearing a case to seek guidance from foreign jurists in similar legal systems faced with similar problems to formulate a decision of their own.
Our constitutional court regularly looks at foreign cases, because for the most part, they have more experience at these constitutional interpretation issues than we do. They do provide guidance to the court on how other jurists in similar jurisdictions deal with similar problems.
However, it is for the judges sitting to make their own minds up and apply their own coutry’s law as they are constitutionally mandated to do. It is the duty of the lawyer arguing a case to present opposing views to those that another lawyer expresses in court.
Personally, I think Justice Scalia would have a very difficult task to find any decisions from common law jurisdictions with constitutional democracies to support the view that it is lawful to impose the death penalty on juveniles as most (if not all) these jurisdictions do not even have the death penalty and most of the courts in those coutries have stated that life imprisonment without the possibility of release for a juvenile (and in some cases even an adult!) amounts to cruel and unusual punishment.
As an example in South Africa, ‘life imprisonment’ means 25 years and a prisoner must serve 75% of that sentence to be eligible for parole.
This does not exclude people who should never be allowed back into society, as there is a way past this as in particularly heinous cases, the court orders the sentences do not run concurrently as in Canada. For instance, in a recent case a serial killer received an effective sentence of more than 800 years imprisonment!
I only raise this as an example to show that most foreign common law jurisdictions with constitutional democracies would not support the case in favour of the juvenile death penalty.
I think that the election of Justice Kennedy to use foreign jurisprudence from similar legal systems faced with similar problems is helpful to support the case against the juvenile death penalty, but these cases should not be used to abdicate the law of one’s own country, as this abdicates the functions of the court that makes the decisions in its own jurisdiction, by deferring to foreign courts.
Comment by David Spohr — March 11, 2005 @ 3:01 am
Juvenile death sentences nullified
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