DATE: October 7, 2004
RE: Roper v. Simmons
The United States Supreme Court will hear oral arguments in Roper
v. Simmons on Wednesday, October 13th, 2004 - fifteen years after the
Court last considered the constitutionality of executing offenders for
crimes committed before their 18th birthday. This memo sets forth the
legal background to the case, discusses the precedent set by the Court in
Atkins v. Virginia, highlights other juvenile cases that have recently
come before the Court and analyzes Christopher Simmons' case using the
Court's six-prong analysis in Atkins.
I. Legal Background to Roper v. Simmons
The United States Supreme Court first addressed the constitutionality of
sentencing juvenile offenders to death in 1988. In Thompson v. Oklahoma,
the Court held in a 5-4 decision that it was unconstitutional to sentence
a fifteen-year-old to death under a state statute that set no minimum age
at which the penalty could be imposed.
In reaching its plurality opinion that the statute violated "evolving
standards of decency," the Thompson Court considered four factors. First,
it looked at legislative enactments, finding that all states that had
considered a minimum age at which a death sentence could be imposed had
set the age at 16 years. Second, the Court looked to the determination
of juries, finding that imposition of a death sentence upon an offender
younger than 16 years old was exceedingly rare. Third, the Court
considered the relative culpability of juveniles and adults, finding that
"adolescents as a class are less mature and responsible than adults."
Finally, the Court decided that a death sentence for a 15-year-old
offender did not "measurably contribute" to the social purposes allegedly
served by the death penalty-retribution and deterrence-"[g]iven the lesser
culpability of the juvenile offender, the teenager's capacity for growth,
and society's fiduciary obligations to its children."
Justice O'Connor, who provided the critical fifth vote to the four-Justice
plurality, wrote a concurring opinion, stating that the sentence of death
should be set aside on narrower grounds. In Justice O'Connor's opinion,
the absence of evidence showing that any legislature had rendered a
considered judgment approving capital punishment for offenders younger
than 16 years old left open the issue of whether fifteen-year-old
offenders could ever be eligible to be sentenced to death.
The following year, in Stanford v. Kentucky and Wilkins v. Missouri, the
Supreme Court held that the Eighth Amendment prohibition against cruel and
unusual punishment did not forbid imposition of the death penalty for
crimes committed by persons at sixteen and seventeen years of age.
Justice Scalia, who wrote the Court's plurality opinion, reasoned that
since a majority of the thirty-seven states that had death penalty
statutes at the time allowed capital punishment for juvenile offenders,
the practice did not violate "evolving standards of decency." As the
dissenting Justices noted, however, the Court failed to take into account
the following: (i) a "proportionality analysis," as required by the
Eighth Amendment, which would have considered the tendency of youths to be
more impulsive and less self-disciplined than adults ; (ii) the practice
of states that did not impose the death penalty on any age group ; (iii)
the reluctance of juries to impose capital punishment on juvenile
offenders ; (iv) the body of law that sets 18 or older as the legal age
for engaging in various activities ; (v) the international community's
overwhelming condemnation of juvenile executions ; (vi) various indicia of
public opinion, including polls, the views of interest groups, and
positions adopted by professional associations ; and (vii)
socio-scientific evidence concerning the psychological and emotional
development of 16- and 17-year olds. For the plurality, the "audience
for [such] arguments" regarding a juvenile offender's culpability was not
the Supreme Court, "but the citizenry of the United States." Indeed, the
plurality stressed that the most important indication of the public's
attitude was an objective one-namely, statutes passed by society's elected
representatives.
The plurality opinion in Stanford, however, did not indicate what
proportion of death penalty jurisdictions must ban the execution of
juvenile offenders before the Court will recognize an emerging "national
consensus." And while that question was left unanswered for over a
decade, the Court provided some direction in June 2002 when it decided
Atkins v. Virginia.
II. Applicability of Atkins v. Virginia to Juvenile Offenders
In Atkins, the Court held in a 6-3 ruling that the United States
Constitution prohibits imposition of the death penalty on offenders deemed
to be mentally retarded. Justice Stevens, writing for the majority,
considered both "objective" criteria-as reflected in the enactment of
legislation-and "subjective" criteria-as reflected in the Court's own
judgment of whether the practice comports with the Eighth Amendment's
prohibition on cruel and unusual punishment. In doing so, the Court
rejected the "objective-criteria-only" approach employed by the plurality
of the Court thirteen years earlier in Stanford.
The Court first looked to "objective" criteria, noting that 16
jurisdictions enacted statutes banning the execution of persons deemed to
be mentally retarded over the 12-year period since the Court last visited
the issue, bringing the total number of jurisdictions banning the practice
to 19. The Court emphasized that "[i]t is not so much the number of these
States that is significant, but the consistency of the direction of
change." The Court deemed the execution of mentally retarded offenders
"truly unusual" for two additional reasons: first, in states that
permitted such executions, the practice was rare; and second, even among
states that regularly executed offenders, only five had executed offenders
with a known IQ less than 70 since 1989.
The Atkins Court then considered "subjective" criteria-non-legislative
evidence of a broader social and professional consensus against the
execution of persons deemed to be mentally retarded. In a footnote, the
Court referred to the following indicia of such a consensus: (i) opinions
adopted by various professional organizations condemning the execution of
the mentally retarded; (ii) opposition to the practice from widely diverse
religious communities; (iii) the overwhelming disapproval of the practice
within the international community; and (iv) polling data showing a
widespread consensus among Americans that executing mentally retarded
persons is wrong. The Court pointed out that although these indicia were
"by no means dispositive, their consistency with the legislative evidence
lends further support to [the] conclusion that there is a consensus among
those who have addressed the issue."
III. Post-Atkins Cases Involving Juveniles
Roper v. Simmons is not the first case to come before the Court since
Atkins v. Virginia that addresses the constitutionality of executing
juvenile offenders. In 2002, two cases involving juvenile offenders were
submitted for the Court's consideration; both were denied review.
However, in a rare move, several justices issued strongly-worded dissents
from the denials of review.
In the first case, Patterson v. Texas, the Supreme Court denied a stay of
execution and petition for certiorari from Toronto Patterson, a juvenile
offender nearing execution in Texas. In the dissent, Justice Stevens
(joined by Justices Ginsburg and Breyer) wrote that since the Court's 1989
decision in Stanford, application of the death penalty to juvenile
offenders "has been the subject of further debate and discussion both in
this country and in other civilized nations." Justice Stevens further
noted, "[g]iven the apparent consensus that exists among the States and in
the international community against the execution of a capital sentence
imposed on a juvenile offender, . . . it would be appropriate for the
Court to revisit the issue at the earliest opportunity."
In In re Stanford, the second case addressing the constitutionality of
executing juvenile offenders, the Court denied a petition for writ of
habeas corpus from Kevin Stanford, a juvenile offender nearing execution
in Kentucky. This time, four Justices dissented from the Court's decision
not to accept the case. In the dissent, Justice Stevens (joined by
Justices Breyer, Ginsburg, and Souter) stated that "[t]he practice of
executing [juvenile] offenders is a relic of the past and is inconsistent
with evolving standards of decency in a civilized society. We should put
an end to this shameful practice."
IV. Roper v. Simmons - The Next Atkins?
Since 2002, however, when the Court refused to reconsider Stanford
v. Kentucky, much has changed. Today the argument for banning juvenile
executions is even stronger than was the argument for banning the
execution of the mentally retarded at the time of Atkins. Indeed, each of
the 6 factors that the Court considered in that case is either met or
surpassed with respect to juvenile offenders:
Factor #1: State Legislative Activity
At the time of Atkins, 30 states forbade the execution of mentally
retarded individuals, while only 20 states permitted it. But today, 31
states forbid the execution of juvenile offenders - that's 8 more states
than when the Court decided Stanford (6 by state legislative activity and
2 by court decisions). Additionally, if it's really "state legislative
activity" that the Court cares about, New Hampshire can be added to the
list, meaning there are 32 states that condemn juvenile executions.
Factor #2: Jury Trends
At the time of Atkins, very few people were being sentenced to
death who were deemed to be mentally retarded. But even fewer juveniles
have been sentenced to death in recent years. In 2003 and 2004, only 1
juvenile offenders was sentenced to death each year; in 2002 and 2001, 2
juvenile offenders were sentenced to death each year; in 2000, 4 were
sentenced to death; in the several preceding years, approximately 10 were
sentenced to death.
Additionally, a powerful example of juries' growing hesitance to
sentence juvenile offenders to death was the jury's decision to spare the
life of Lee Boyd Malvo in Virginia for his participation in the infamous
"sniper shootings" in the DC area.
Factor #3: Public Opinion
Public support for the death penalty is even lower when juvenile
offenders are concerned than it was for mentally retarded individuals at
the time of Atkins. According to the last Gallup poll, which was
conducted in May 2002, 69% of people support a ban on juvenile executions,
while only slightly more than 20% support such executions.
Factor #4: Professional and Religious Opinion
One sign of the powerful support among religious and professional
communities to end the execution of juvenile offenders is the overwhelming
number of groups that submitted amicus ("friend of the court") briefs to
the Supreme Court on behalf of Christopher Simmons. Altogether, 16 amicus
briefs were filed on behalf of over 150 professional and religious groups.
Factor #5: International Practice
Even fewer countries continue to execute juvenile offenders than executed
people deemed to be mentally retarded at the time of Atkins. Today, only
three countries still sanction the execution of juvenile offenders - Iran,
the Democratic Republic of Congo, and the United States. However, the
Democratic Republic of Congo has an effective moratorium on the practice
because it hasn't carried out a juvenile execution in several years. In
addition, in December 2003, Iran's Parliament passed a law to officially
end the juvenile death penalty; although it has not yet been enacted into
law, it is expected to become law sometime this year.
Factor #6: Relative Culpability
The last factor that the Court considered in Atkins was a
subjective one - whether a class of people should be held less culpable
than other offenders. In Atkins, the Court determined that individuals
with mental retardation were less culpable than other adults because they
weren't able to understand the consequences of their actions to the same
extent; in addition, they were particularly vulnerable to pressure from
others. Not surprisingly, the same is true for teenagers. And over the
last several years, science has proven that this is the case. Studies on
adolescent brain development demonstrate that the last portions of the
brain to develop are the frontal and pre-frontal lobes - those are the
sections of the brain where judgment and reason are controlled and people
are prevented from acting compulsively or purely on emotion. That portion
of the brain is not fully developed until a person is between 18 and 22
years old. (So setting a minimum age of 18 is actually very
conservative.)
V. What To Expect In The Coming Months
Oral arguments in Roper v. Simmons are scheduled for Wednesday,
October 13th at 10am. A decision from the Court is expected sometime
between January and June 2005. For the most part, legal experts who have
weighed in on the issue expect the Court to uphold the Missouri Supreme
Court's decision to overturn Simmons' death sentence. (Some articles are
attached to this memo.)
In the event that the Missouri Attorney General prevails, there is
nonetheless great momentum to end the juvenile death penalty within states
that still sanction the practice. The NCADP and other national and state
groups will use the 2005 legislative session to take advantage of the
momentum that has been generated to pursue additional state legislative
bans. Movement is already underway in Arkansas, Delaware, Florida,
Louisiana, Nevada and (yes, even) Texas.
However, it is our hope and belief that early next year, juvenile
executions will be a thing of the past and we can focus our attention on
the next expected national "wedge" issue - the execution of persons who
are mentally ill.
(source: NCADP)
