Criminal Justice Section
Criminal Justice Magazine
Volume 19 Number 3
Supreme Court Revisits Juvenile Death Penalty
By Robert E. Shepherd, Jr.
Robert E. Shepherd, Jr., is emeritus professor of law at the University of Richmond School of Law in Virginia. He is also a contributing editor to Criminal Justice magazine and former chair of the Section’s Juvenile Justice Committee.
In the latest in a series of cases addressing the constitutionality of executing persons for crimes committed before their eighteenth birthday, the U.S. Supreme Court heard oral argument in mid-October in Roper v. Simmons, No. 63-633. The tortuous path to this reexamination of the controversial issue began 22 years ago in Eddings v. Oklahoma, when the Court reversed the death sentence of a young man because the state trial court did not permit presentation of the mitigating evidence of the defendant’s youth. The Court acknowledged in that case that “youth is more than a chronological fact” and that juveniles “generally are less mature and responsible than adults.” (455 U.S. 104, 115-16 (1982).) Six years later, the Court took a major step forward in another Oklahoma case when it ruled “that the Eighth and Fourteenth Amendments prohibit the execution of a person who was under 16 years of age at the time of his or her offense.” (Thompson v. Oklahoma, 487 U.S. 815, 838 (1988).) Just a year later, however, the Court rejected the invitation to extend the constitutional prohibition to youths 16 or 17 years old. In companion cases from Missouri and Kentucky, a plurality of four Justices concluded “we discern neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age” and, thus, “such punishment does not offend the Eighth Amendment’s prohibition against cruel and unusual punishment.” (Stanford v. Kentucky, 492 U.S. 361, 380 (1989).) Justice Sandra Day O’Connor concurred in part and concurred in the judgment, agreeing that no such consensus against the penalty existed, but she stated that “the day may come when there is such general legislative rejection of the execution of 16- or 17-year-old capital murderers that a clear national consensus can be said to have developed,” but she did “not believe that day has yet arrived . . . .” (492 U.S. at 381-82.) On the same day the Court decided Stanford, it concluded that the then-current standards of decency also did not bar the execution of a mentally retarded defendant. (Penry v. Lynaugh, 492 U.S. 302 (1989).) However, because the Court does not view the Eighth Amendment’s prohibition of cruel and unusual punishments as remaining static, it reversed the holding in Penry in 2002 and concluded that the execution of such mentally disabled persons is now unconstitutional. (Atkins v. Virginia, 536 U.S. 304, 321 (2002).) In spite of the shift represented by Atkins, the Court later that same year rejected postconviction relief to the same individual, Kevin Stanford, who was the petitioner in the earlier case from Kentucky. Four Justices dissented in that decision, with Justice John Paul Stevens referring to the juvenile death penalty as a “shameful practice.” (In re Stanford, 537 U.S. 968, 971 (2002).)
The Simmons case
Christopher Simmons was 17 years old in 1993 when he committed the homicide that led to his conviction and death sentence for first-degree murder. His initial postconviction proceedings in both state and federal courts were unsuccessful. However, in 2003 the Missouri Supreme Court granted habeas corpus relief to Simmons, setting aside his death sentence based on its analysis of the Supreme Court’s decision on Atkins v. Virginia, and the fact that, since 1989, five additional states and the federal government had established 18 as the minimum age for capital punishment. (State ex rel. Simmons v. Roper, 112 S.W.2d 397, 408 (Mo. 2003).) Since the Missouri court’s decision, two additional states have enacted laws raising the minimum age for eligibility for the death penalty to 18. Today, only 19 of the 50 states—fewer than half of the 39 states that allow the death penalty generally—now permit the execution of persons for capital offenses committed before their eighteenth birthday. The Missouri attorney general’s office appealed the Simmons case to the U.S. Supreme Court and the Court granted a writ of certiorari in January 2004.
The Missouri attorney general filed his brief in April and was joined by two amicus briefs, one for six other states, and one from the Justice for All Alliance. In July 2004, the respondent filed his brief in support of Christopher Simmons, joined by a considerable number of amicus curiae briefs, including one by the American Bar Association. Among the other amicus briefs were ones filed on behalf of:
• 18 laureates of the Nobel Peace Prize;
• nine former American diplomats, including four career ambassadors;
• the European Union, the Council of Europe, and other members of the international community;
• the United States Conference of Catholic Bishops and other Christian, Jewish, Muslim, and Buddhist communities;
• the attorneys general of eight other states;
• the American and Missouri psychological
• several medical and social work bodies, including the American Medical Association, the American Psychiatric Association, the National Association of Social Workers;
• several civil rights and civil liberties groups;
• more than 50 child and adolescent advocacy
• the Human Rights Committee of the Bar of England and Wales and other human rights groups;
• the National Legal Aid and Defender Association;
• the Coalition for Juvenile Justice;
• Murder Victims’ Families for Reconciliation;
• the Constitution Project, and;
• the Missouri Ban Youth Executions Coalition.
The American Bar Association amicus brief reflects the position expressed in a resolution adopted by the ABA House of Delegates in 1983 opposing “the imposition of capital punishment upon any person for any offense committed while under the age of eighteen,” and reaffirmed a 1997 resolution supporting a death penalty moratorium until states adopted a number of reforms, including setting a minimum age of 18 for capital punishment.
Arguments in Simmons
A number of diverse arguments are presented by the respondent Simmons and the various amici curiae. Among these arguments are: 1) that the standards of decency under the Eighth Amendment have continued to evolve to the extent that the juvenile death penalty is now beyond the pale, both because of domestic developments in the United States and the almost universal rejection of capital punishment for juveniles in the rest of the world community; 2) very few of the minority of states that continue to allow the execution of juveniles have actually carried out an execution since the death penalty was reinstated—only seven of the 19—thus rendering the practice truly unusual; 3) in recent years, courts and juries rarely impose the death sentence on juveniles even when it is sought, as in the high profile Lee Boyd Malvo case involving a Washington, D.C.-area sniper; 4) organizations with particular expertise regarding children and adolescents uniformly oppose the execution of minors, as do members of diverse religious communities; 5) the public at large regularly and overwhelmingly rejects the execution of juveniles in recent public opinion research, including 66 percent of those polled in a 2001 University of Chicago study, 62 percent in a survey by Princeton Survey Research Associates, and 69 percent in a May 2002 Gallup poll; 6) juveniles, like mentally retarded persons, do not possess the degree of moral culpability to justify a sentence to death, nor do retribution or deterrence justify executing adolescents; 7) also, like the mentally retarded, juveniles face a special risk of wrongful conviction and of receiving unjustified death sentences; 8) recent brain research demonstrates that adolescents have developmental deficiencies similar to the mentally retarded that interfere with their exercise of their constitutional rights; 9) young defendants of color are disproportionately more likely to be wrongfully convicted, wrongly sentenced to death, and wrongfully subjected to an otherwise flawed adjudicative process; and 10) the development of an international consensus against the juvenile death penalty has increasingly isolated the United States diplomatically and hampered the ability of the country’s representatives to speak effectively for the nation, especially on human rights issues. The briefs consistently point out that since the 1989 decision in Stanford, an additional eight states, including Missouri in Simmons, have established 18 as the minimum age for the imposition of the death penalty, along with the federal government in both civilian and military courts.
It is easy to draw a parallel between the Atkins case, involving the constitutionality of executing mentally retarded defendants, and the Simmons case, presenting the same issue with persons between the ages of 16 and 18. In fact, the word “juvenile” could easily be substituted for “mentally retarded” in the opinion in Atkins. However, it is always difficult to secure the necessary shift in votes to get the Supreme Court to reverse itself, especially within the space of only 15 years. There seem to be four Justices firmly committed to overturning Stanford v. Kentucky—Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens—and three Justices equally firmly in support of the earlier case—Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas. Justice Sandra Day O’Connor, who concurred in both Thompson and Stanford, and Justice Anthony Kennedy, who has expressed some reservations about the administration of the death penalty generally, are hard to place in either camp definitively.
A lot of eyes are focused on the Court’s argument in this most recent case and the subsequent Court action from all parts of the world. The American Bar Association has invested considerable energy over the years in attempting to secure the abolition of the juvenile death penalty, and the officers, members, and staff of the association view this decision with great interest.nSection News