From the colonial era until 2005, the year in which Roper v. Simmons was decided, 366 offenders were executed in the United States for crimes committed as juveniles, including 22 in the contemporary death penalty era, since 1976. The Supreme Court had repeatedly declined to adjudicate the propriety of the juvenile death penalty but was to do so only three years after ruling that the imposition of capital punishment upon mentally retarded offenders was unconstitutional in Atkins v. Virginia (2002).
In Roper the question presented to the Supreme Court was whether the cruel and unusual punishment clause of the Eighth Amendment bars infliction of the death penalty on offenders who were under the age of 18 at the time of the offense. By a 5–4 vote the court held that, indeed, the execution of such offenders would be unconstitutional.
In Thompson v. Oklahoma, decided 17 years earlier, in 1988, the Supreme Court had ruled that the execution of offenders whose offense was committed while aged 15 years or younger would be unconstitutional. The decision in Roper, therefore, is an extension of that rule to 16 and 17 year olds, overruling Stanford v. Kentucky (1989) where the imposition of the death penalty upon such offenders was constitutionally upheld.
Made applicable to states through the Fourteenth Amendment, the Eighth Amendment prohibits cruel and unusual punishment. In interpreting the meaning of “cruel and unusual” the Supreme Court, as established in Trop v. Dulles (1958) looks to the ”evolving standards of decency that mark the progress of a maturing society” in determining criteria consistent with the Eighth Amendment, proscribing penalties that are disproportionate to the offense and that do not consider an offender’s degree of culpability.
In determining the acceptability of the sentence, the court emphasized in Roper what it saw as a growing consensus against juvenile executions. Although the evidence was less forceful than with the aversion to executing the mentally retarded in Atkins v. Virginia, the court counted 30 states that prohibited the imposition of the death penalty against juveniles. Of the remaining states without a formal prohibition in place, the court found the practice of imposing the death penalty on minors was rare and infrequent.
In reaching its decision, the court cited three differences between adult offenders and those under the age of 18—differences that diminish the culpability of the juvenile. First, inherent in age, the irresponsibility and lack of maturity of such offenders and the increased likelihood that they will fail to fully consider their actions. Second, juveniles are more susceptible to outside influences. Finally, a juvenile’s character is less formed than that of an adult and, as such, their crime is not necessarily evidence of irretrievable depravity. Because of the diminished culpability produced by these factors, the court found that the two social purposes served by imposing capital punishment, deterrence and retribution, retained less force with the juvenile than the adult offender. While the majority acknowledged the possibility of a case arising in which a juvenile had sufficient intellectual maturity to be as culpable as an adult, the court could not find such comparability in all instances, and believed there to be an unacceptably high risk that a jury would not fully consider, in light of a particularly brutal murder, the mitigating factors of vulnerability, susceptibility, and immaturity.
The minority disagreed. Justice Antonin Scalia, in an opinion enjoined by Chief Justice William Rehnquist and Justice Clarence Thomas, noted the low rate of death sentences imposed upon juveniles as evidence, not of a growing aversion to applying the death penalty in such cases, but of juries’ consideration of the mitigating factors inherent in youth. Scalia’s dissent also criticized the court’s look to the international context in making its decision. In 2005, the United States was one of three nations that had not ratified the United Nations Convention on the Rights of the Child (the other two countries being South Sudan and Somalia); and although a signatory to the International Covenant on Civil and Political Rights (ICCPR), the United States had expressly derogated from provisions regarding the execution of juveniles. By the time Roper was decided, the United States was increasingly marginalized on the issue, and few countries still executed offenders for crimes committed while they were under the age of 18. Justice Scalia lamented the court’s picking and choosing which international policies to follow, noting other areas where the United States chooses a different policy than other nations, such as in areas of abortion or the admissibility of certain types of evidence in criminal proceedings.
Justice Sandra Day O’Connor wrote a separate dissenting opinion in which she expressed concern over establishing a categorical rule against the execution of juveniles. For O’Connor it was inaccurate to suggest that juveniles could not reliably be classed among the worst of offenders, presenting five arguments to challenge the categorical ban. First, she asserted, there was no actual evidence to support the contention that 17 year olds only rarely demonstrate sufficient maturity and foresight to act with such depravity to warrant the imposition of a death sentence. Second, she questioned the use of chronological age as a measure of psychological development, noting that many 17 year olds are more mature than some adults. Third, she distinguished 17-year-old offenders from those with mental retardation, noting that although perhaps less mature, such offenders do not have comparable life impairments. Fourth, O’Connor expressed her faith in a jury’s ability to take into account an offender’s youth and immaturity in sentencing, before finally noting that youth’s immaturity does not necessarily render meaningless the penological aims of deterrence and retribution.
- Flexon, Jamie L., Lisa Stolzenberg, and Stewart J. D’Alessio. “Cheating the Hangman: The Effect of the Roper v. Simmons Decision on Homicides Committed by Juveniles.” Crime & Delinquency, v.57/6 (2011).
- Sarkar, Sameer P. “Too Young to Kill? U.S. Supreme Court Treads a Dangerous Path in Roper v. Simmons.” Journal of the American Academy of Psychiatry and the Law, v.35 (2007).
- Scott, Charles L. “Roper v. Simmons: Can Juvenile Offenders Be Executed?” Journal of the American Academy of Psychiatry and the Law, v.35 (2007).
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