Can Juveniles Constitutionally Be Executed?
The Supreme Court Will Consider the Question in a Pending Case

By EDWARD LAZARUS

Friday, Jul. 23, 2004

On Monday, the first set of briefs was filed in Roper v. Simmons - an important death penalty case. In Roper, the Supreme Court will revisit the constitutionality of executing someone for a crime he or she committed when under the age of 18.

One might think, standing back from the particulars of this Court and the doctrines of constitutional law, that this case would be relatively easy. Imposing the death penalty for offenses committed by juveniles is a practice that has received almost uniform worldwide condemnation.

The International Covenant on Civil and Political Rights, signed by 152 nations, prohibits the practice. So does the United Nations Convention on the Rights of the Child. One hundred ninety-two nations, every nation but the United States and Somalia, have signed that Convention.

In the past 15 years, only seven countries, in addition to the United States, have executed juvenile offenders: Yemen, Nigeria, Pakistan, Saudi Arabia, Iran, the Democratic Republic of the Congo, and, most frequently, China.

This list speaks for itself. But what might be most telling is the fact that even some of these nations - notorious for their failure to observe human rights - are embarrassed about the juvenile death penalty. In 1994, Yemen changed its laws to outlaw the juvenile death penalty. China did the same in 1997, as did Pakistan in 2000.

That bottom line is this: boiling down the numbers and looking at actual practices and pronouncements, the United States is the only country in the world that actively condones the execution of juvenile offenders.

Yet as powerful as this international consensus is, the issue of the juvenile death penalty will almost certainly be close and hard-fought within the Court. In this column, I will explain why that is.

The Case Raises Basic Questions About the Role of the Supreme Court Itself

One reason that the Roper case is bound to be controversial on the Court, is that raises basic jurisprudential questions about the proper role of the judiciary. These questions are not specific to the death penalty, but they are latent in almost all death penalty cases. And they have sharply divided the justices for a generation.

In the end, the outcome of Roper is likely to depend significantly on where the swing justices, Sandra Day O'Connor and Anthony Kennedy, locate themselves along this longstanding jurisprudential divide.

What, exactly, is the divide? To begin, it's important to remember that the most fundamental complaint that conservatives lodge against the liberal innovations of the Supreme Court under Earl Warren (and afterwards) is that the Court lost sight of the proper judicial role. Of course, many conservative observers objected to Warren Court decisions for their results: They were "too soft" on criminal defendants, it was claimed. But the critique of the reasoning decisions was different: It held that the Court had no business creating new rights not spelled out in the Constitution.

According to this critique, the liberal justices - in cases such as Miranda or Roe v. Wade - created a series of new constitutional rights. These rights, on this view, were not based on what the Constitution actually says, or what it was intended to mean. Instead, they were based merely on the justices' personal notions of right and wrong, fair and unfair, moral and immoral.

This kind of rights creation, the conservatives argued, was profoundly illegitimate. It meant substituting the personal judgments of unelected, life-tenured judges for the judgments of elected officials.

This substitution, they pointed out, was diametrically at odds with basic principles of democratic governance as embodied by our Constitution. Thus, they concluded, rights creation not only perverted the judicial role, but also subverted the very Constitution that the judges were supposed to be interpreting and applying.

Why The Critique of "Rights Creation" Resonated in the Death Penalty Context

The conservative critique was sometimes inaccurate or overblown. It was also sometimes hypocritical: Conservative justices, too, had at times arguably tried their hands at creating rights - states' rights, economic rights, gun rights, and the list goes on.

But one area where this critique really hit home was the death penalty. For example, in the 1972 case of Furman v. Georgia, the Supreme Court declared that the entire system of capital punishment, as a categorical matter, violated the Eight Amendment's proscription against "cruel and unusual" punishments. Yet it was hard to see how this could possibly have been true.

After all, the Constitution itself contemplates the existence of the death penalty. Otherwise the Fifth Amendment's declaration that no person shall be deprived of "life" without due process of law makes no sense. Had the Constitution been intended to outlaw the death penalty, it would have said that no person could be deprived of life at all, ever.

Then how did the Court reach its result in Furman? One answer is that a number of the justices in the Furman majority believed the death penalty violated the nation's "evolving standards of decency." (In the 1950s, the Court had settled upon "evolving standards of decency" as a benchmark for assessing whether a punishment was "cruel and unusual" in violation of the Eighth Amendment - the death penalty included.)

But this logic, too, was tenuous at best. In 1972, a healthy majority of states still handed out death sentences with regularity. So whose evolving standards of decency, exactly, were the justices talking about? Certainly not the standards of elected officials -- nor even those of the public. At the time, 50% of the public still supported the death penalty.

Thus, as conservatives complained bitterly, the Court's decision in Furman seemed to be based not on any discernible constitutional principle. Rather, it appeared to be based simply on the moral judgments of the five justices in the majority.

Even After Furman's Reversal, the Death Penalty Split on the Court Persisted

In 1976, the Court reversed Furman's blanket constitutional ban on capital punishment in the case of Gregg v. Georgia. After that reversal, however, the battle among the Justices over the death penalty and over the role of the judiciary only intensified.

In the decade after Gregg, the Supreme Court decided a raft of cases in which it tried to accomplish two objectives. First, the Court tried to outline fair procedures for imposing the death penalty. Along these lines, it sorted out what kinds of evidence and arguments could be presented to a jury in deciding whether a defendant would be given a death sentence. And it decided when judges could override the decisions of juries whether or not to impose a sentence of death.

Second, the Court tried to draw lines between those circumstances in which the death penalty would be allowed, and those in which it would not. Toward this end, it prohibited the death penalty for the crime of rape and banned executions of the mentally incompetent. It also limited the "aggravating factors" that could elevate murder to the status of a capital crime.

Throughout this process, the conservative justices lashed out at the liberals - faulting them for setting themselves up as a super-legislature designing and micromanaging a whole system of capital punishment. This system, the conservatives charged, might accord with the liberals' individual views about fairness -- but it had no grounding in the Constitution, and so the Court had no business imposing it on the nation.

Meanwhile, some of the liberal justices added rocket fuel to this fire. Justices William Brennan and Thurgood Marshall openly declared that, when it came to the death penalty, they intended to put their own moral convictions above the usual constraints on judging, and would vote to reverse every capital sentence - no matter what the merits (or lack thereof) of the legal claim raised.

The Conservative Death Penalty Backlash: Tying Judges' Hands

Over time, however, conservative appointments to the Court - the appointment of Sandra Day O'Connor, followed by that of Antonin Scalia, followed by that of Anthony Kennedy - changed the balance of power at the Court. As a result, a conservative backlash set in - and it went far beyond the realm of the death penalty alone.

As a general matter, the conservatives sought aggressively to limit the power of judges to inject their own subjective moral judgments into constitutional doctrine - or, at least they sought to limit the ways liberals had done this.

Take the conservatives' emphasis on interpreting the Constitution according to its alleged "original meaning" or the "intent of the Framers." Although couched as a philosophy of jurisprudence, this is really just a practical strategy for tying the hands of contemporary judges. It prevents judges from factoring their own moral judgments into the Constitution's meaning by providing an historical and purportedly "objective" standard for interpreting the Constitution.

With respect to the death penalty in particular, the conservatives cut back drastically on judges' discretion. They limited judges' ability to assess the constitutionality of individual death sentences. In addition, they limited their ability to assess the appropriateness of capital punishment for particular categories of crimes.

Starting in the mid-1980s, for example, the Court rewrote the rules of habeas corpus to limit drastically the circumstances in which federal judges could overturn death sentences. And at the same time, the Court tried to establish objective, rather than subjective, standards for assessing when capital punishment was constitutionally permissible.

The Juvenile Death Penalty: The Prior Court Precedents Addressing It

All of which brings us back to the juvenile death penalty - and the case currently pending before the Court.

In the late 1980s, the Court decided in Thompson v. Oklahoma and Stanford v. Kentucky that it was unconstitutional to execute someone for crimes committed under the age of 16, but that it was not unconstitutional to execute someone for crimes committed at the age of 16 or 17.

In drawing this line, the majority eschewed reliance on its own sense of our "evolving standards of decency." Instead, the Court measured contemporary standards of decency - and, thus, the definition of "cruel and unusual" punishment - by looking to an outside objective measure: the judgments of the legislatures in the 50 states.

Basically, the Court counted how many states permitted the execution of juvenile offenders, and at what age. And based on this statistical analysis, the Court decided that there existed a societal consensus against executing 15 year-old offenders (and younger), but there existed no such consensus against executing 16 and 17 year old offenders.

The Court followed much the same approach two years ago, in Atkins v. Virginia, when it declared unconstitutional the execution of mentally-retarded persons. The majority looked to the number of states that allowed such executions and the number of states that had recently outlawed the practice. In light of the absolute numbers, and the distinct trend away from permitting such executions, the Court declared that executing the mentally retarded was a cruel and unusual punishment.

In an important departure from the "objective" approach, however, the Court in Atkins also infused its opinion with an independent judicial assessment of the propriety of executing the mentally retarded. Specifically, the justices in the majority undertook their own assessment of whether executing the mentally retarded advanced the only two recognized purposes of capital punishment - retribution and deterrence.

The Court concluded that the diminished cognitive ability of the mentally retarded called both justifications into question. Basically, the justices held that it the death penalty, which is meant to deter premeditated murders, was unlikely to deter persons who often lacked the cognitive ability to engage in cold calculation.

They also concluded that, in light of their diminished mental capacity, the mentally retarded were less culpable than typical capital offenders - and, thus, retribution at this level of severity was inappropriate.

The Case Now Before the Court: Both Statistical and Philosophical Arguments

Not surprisingly, the briefs in Roper invoke both types of analysis - statistical, and philosophical -- in an effort to convince a Court majority to categorically ban execution of juvenile offenders.

Overall, the statistical breakdown in the states with respect to the juvenile death penalty, is fairly similar to the breakdown with respect to the mentally retarded. Since this type of statistical case persuaded the Court to strike down the death penalty for the mentally retarded in Atkins, it may do the same in Roper when it comes to the juvenile death penalty.

Meanwhile, the arguments regarding the diminished mental capacity and culpability of juveniles - based on fascinating new scientific evidence - track a similar line to those concerning the mentally retarded. Obviously, the issue with juveniles is not intelligence in itself; these juvenile offenders, by definition, are not mentally retarded - or Atkins would apply. But characteristics such as being impulsive or unable to control one's emotions, and failing to look to future consequences of one's actions, suggest that juveniles are far harder to deter than adults. And for similar reasons, juveniles may well be less deserving of the ultimate retribution (assuming anyone is) than adults may be.

Is a sixteen-year-old murderer anywhere near as culpable - and deterrable - as, say, a thirty-two-year-old murderer? Teen psychology and physiology suggest the answer is a strong no.

Again, this type of argument persuaded the Court in Atkins. It may persuade the Court in Roper as well.

Two Effects: On the Nation's International and Moral Status, and the Justices' Courage

In the end, Roper is important in two ways. First, it will determine whether the United States will continue to stand alone in the civilized world - indeed the entire world - as nation morally and legally comfortable with executing juvenile offenders.

Second, it will be a barometer for whether the current justices are ready again to courageously and directly engage the issue of capital punishment. To do that, they cannot simply point to the judgments of others. Instead, they must engage in the terribly hard business of judging themselves. After all, it is they - or their clerks on their behalf - who sign the papers allowing the executions to go forward, or demanding that they be stopped. That's a difficult moral responsibility to avoid, or defer.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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