Posted by Juan Non-Volokh:
Juveniles, the Death Penalty & Deterrence:
Justice Kennedy's [1]majority opinion in Roper v. Simmons maintains
that the deterrence argument for the death penalty apply with "lesser
force" to juveniles. Kennedy writes: "it is unclear whether the death
penalty has a significant or even measurable deterrent effect on
juveniles," and notes that, as a general matter, "juveniles will be
less susceptible to deterrence" than adults.
Interestingly enough, the facts of the case, as described in Kennedy's
own opinion, suggest that criminal sanctions do have a potential
deterrent effect on juveniles:
There is little doubt that Simmons was the instigator of the crime.
Before its commission Simmons said he wanted to murder someone. In
chilling, callous terms he talked about his plan, discussing it for
the most part with two friends, Charles Benjamin and John Tessmer,
then aged 15 and 16 respectively. Simmons proposed to commit
burglary and murder by breaking and entering, tying up a victim,
and throwing the victim off a bridge. Simmons assured his friends
they could �get away with it� because they were minors. [Emphasis
added.]
In other words, Simmons sought to induce other juveniles to
participate in his crimes by telling them they need not fear criminal
prosecution. This argument would have been unnecessary were his
friends not deterred, at least in part, by such threats. From this
proposition it is but a small step to assume that the severity of the
criminal sanction -- death as opposed to a set jail term -- could have
some deterrent effect on the margin. This does not mean that capital
punishment for juveniles is a good idea, but it does suggest that
Justice Kennedy may have been a bit too quick to dismiss the potential
for deterrence. Indeed, his own recital of the facts should have
raised a red flag on this point.
References
1. http://supct.law.cornell.edu/supct/html/03-633.ZO.html
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