Posted by Orin Kerr:
Roper v. Simmons and the Evolving Standards of Decency:
In its decision yesterday declaring the juvenile death penalty
unconstitutional, [1]Roper v. Simmons, the Supreme Court relied
heavily on the fact that since [2]Stanford v. Kentucky in 1989, five
states have gone from allowing the juvenile death penalty to banning
it:
Five States that allowed the juvenile death penalty at the time
of Stanford have abandoned it in the intervening 15 years -- --four
through legislative enactments and one through judicial
decision. Streib, supra, at 5, 7; State v. Furman, 122 Wash. 2d
400, 858 P. 2d 1092 (1993) (en banc).
Though less dramatic than the change from Penry to Atkins
("telling," to borrow the word Atkins used to describe this
difference, 536 U. S., at 315, n. 18), we still consider the change
from Stanford to this case to be significant.
As [3]Xrlq points out, however, something important is missing from
this analysis: a sense of whether the five states that changed their
policy are states in which capital litigation is active or basically
dormant. If the goal is to look for "evolving standards of decency"
and find an "emerging national consensus," it is one thing to say that
practices changed in five states; it is another to say that actual
practices stayed the same, but that the law on the books in a few
states changed. The difference matters because while most states allow
capital punishment in theory, the actual practice of bringing capital
cases and carrying out the sentences is heavily weighted in favor of a
small number of states.
I took a look at some statistics, and the stats seem to confirm my
suspicion: the five states that moved to ban capital punishment for
juveniles are states that have capital punishment on the books but
rarely use those laws. While five states changed their laws on the
books since 1989, it seems that actual practices since 1989 remained
the same.
Here are the stats I found. The juvenile death penalty has always
been very rare in the United States; since the beginning of the
republic, it has occurred on average about once a year. That rate has
remained constant (at least in absolute terms) in the last twenty
years: 22 juveniles have been executed in the last 20 years. Texas is
responsible for 13 of those cases; Virginia for 3; Oklahoma 2;
Georgia, South Carolina, Louisiana, Missouri each for 1. (stats on
page 4 of [4]the Streib report cited in the Roper opinion)
The states that banned the juvenile death penalty since Stanford v.
Kentucky are Washington (by the courts), and (I think, from page 7 of
the Streib report). Kansas, New York, Montana, and Indiana. But
Washington, Kansas, New York, Montana, and Indiana aren't states that
have executed anyone for a juvenile crime at least in the last three
decades -- and indeed, I'm having trouble finding evidence that any of
these states ever actually did so.
More broadly, these five states are not active death penalty states
even for adult crimes. Since the death penalty was reinstated in 1976,
these five states have been responsible for 17 out of the 1,000 or so
executions that have occurred -- only about 2% of the total. 11 of the
17 executions were in just one state, Indiana. (The numbers, available
[5]here, are Washington - 4, Kansas - 0, New York - 0, Montana - 2,
and Indiana - 11.) Notably, of the 4 states that abolished the
juvenile death penalty by legislative decision, 2 of those don't
actually have a functional death penalty for any defendant.
If I understand the statistics correctly, the move to abolish the
juvenile death penalty in five states since 1989 is essentially
symbolic: none of those states have executed a juvenile in many
decades, if ever, and the five states are mostly states that have
capital punishment in theory but not in practice. If the "evolving
standards of decency" inquiry of the Eighth Amendment focuses on
actual practices, then there seems to be virtually no evidence of a
changed standard since 1989.
References
1. http://scotus.ap.org/scotus/03-633p.zo.pdf
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=492&invol=361
3.
http://xrlq.com/2005/03/01/2187/supremes-to-juvenile-thugs-dont-pay-no-mind-if-youre-under-18-you-wont-be-doin-any-time/
4. http://www.law.onu.edu/faculty/streib/documents/JuvDeathDec2004.pdf
5. http://www.clarkprosecutor.org/html/death/dpusa.htm
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