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The Supreme Court Reconsiders the Constitutionality of Executing Minors:
The Case of Roper v. Simmons


Wednesday, Oct. 06, 2004

Next week, the United States Supreme Court will hear argument in Roper v. Simmons. The case calls upon the Court to consider once again the question whether the Constitution permits the government to execute offenders who committed their crimes while under the age of eighteen.

In 1989, in Stanford v. Kentucky, the Court answered the question yes, even though it had held a year earlier, in Thompson v. Oklahoma, that the Eighth Amendment barred the execution of convicts who were fifteen years of age or younger at the time of their crimes. The distinction between fifteen and sixteen, said the Court, was based upon the respective presence or absence of a national consensus.

The issue of executing minors raises important questions about what we believe makes a person deserving of the ultimate sanction.

Overruling the U.S. Supreme Court? The Missouri Court's Bold Decision

Roper is an unusual case in the boldness of the ruling that preceded its presentation before the highest court in the land. The Supreme Court of Missouri granted the petition of Christopher Simmons for relief from his upcoming execution, in spite of the fact that the U.S. Supreme Court had specifically rejected the very grounds on which the Missouri court based its decision: the fact that the petitioner was under eighteen at the time of his offense.

A state supreme court, of course, does not have the power to overrule a U.S. Supreme Court decision on the meaning of the U.S. Constitution. According to the Missouri Justices in the majority, however, the meaning of the Eighth Amendment ban on cruel and unusual punishments has changed since1989, when Stanford was decided, and this change has rendered (previously legal) juvenile executions unconstitutional.

The Missouri court reasoned that the nation's views underlying the earlier Supreme Court decision have evolved, and so, therefore, has the constitutional status of such sentences.

Execution of Minors and the Mentally Retarded: A Comparison

In determining that there is now a national consensus against the execution of minors, the Missouri Supreme Court considered, among other things, the 2002 U.S. Supreme Court ruling in Atkins v. Virginia, prohibiting the execution of the mentally retarded.

Years before it decided Atkins, the Court previously affirmed the execution of the retarded - in Penry v. Lynaugh. Coincidentally, Penry came down the same year in which the Court affirmed the execution of sixteen and seventeen year olds.

A comparison between execution of young people and of the mentally retarded may thus shed some light on the question currently before the Supreme Court.

Let us consider first the public emotional impact of executing a mentally retarded person, and how it might differ from that of executing a juvenile offender like Christopher Simmons.

When a mentally retarded person is executed, the person dying in the electric chair or the gas chamber or the lethal injection gurney is - by definition - mentally retarded at the time of his execution. The developmentally disabled, in other words, do not grow out of their impaired mental status.

The convicted youthful offender who is sentenced to die, by contrast, will ordinarily no longer be a minor by the time his sentence is carried out. A person who is sixteen or seventeen years old will -- in another year or two -- no longer be under the age of eighteen. And the process of death penalty appeals often takes longer than two years.

As a result, the American public will not usually have to face the spectacle of a "child" dying a scheduled death at the hands of the state in the way that it faces the spectacle of a "mental child" being executed in the analogous context of the mentally retarded. To the extent that the national consensus responds to the sympathy factor at the moment of execution, the youthful offender thus has one strike against him.

On the other hand, the fact that a younger person, unlike a mentally retarded person, will tend to change a great deal over time, may, in another regard, prove helpful to youthful offenders like Christopher Roper.

A mentally retarded person who faces the death penalty several years after his crime will probably seem like the same person who committed the earlier murder for which he is being punished. The youthful offender, on the other hand, will often look and sound like an entirely new person by the time of his execution.

Because the public may feel the understandable desire to punish the same person who committed a murder, his evolution over time can greatly help the cause of the youthful offender.

Blameworthiness and the Execution of Minors

As I have noted, an offender's status (or relative status) at the time of his execution may affect the nation's emotional response. Yet the legal arguments that appeal to judges generally concern the offender's age or mental status at the time he committed his offense.

The reason that age, in particular, matters to the law, is that full criminal blameworthiness under the law is understood to require a minimum level of maturity.

Until a person has reached a given age, she may not be fully capable of appreciating the depth of harm that she inflicts on others when she commits a murder. Also, a young person's self-control may not be as developed prior to adulthood. In the absence of a completely functional capacity to appreciate the wrongfulness of crime and to control destructive impulses, some argue, it is unfair to punish an offender with the most severe punishment available under the law.

The notion that youthfulness is associated with an underdeveloped conscience - an inability to fully appreciate the wrongfulness of crimes - and reduced willpower has proven consistent with ongoing scientific study. As people age out of childhood, they apparently become better able both to appreciate the wrongfulness of, and to control, their murderous impulses.

The death penalty is supposed to punish the most blameworthy actors for their crimes. If criminals under a particular age are less blameworthy than other criminals, in terms of their mental and emotional capacities, it might seem to follow that we should spare such criminals the harshest sentence.

Imprecision of the Blameworthiness Test: Underinclusiveness

Looking critically at this argument, however, we should note that the age cutoff is both under-inclusive and over-inclusive in addressing whatever incapacities accompany youth.

Consider its under-inclusiveness first. If we ought to avoid executing people who lack the abilities fully to appreciate the evil of their crimes and to control their impulses, then we should exempt many more people from the death penalty than just the young. Indeed, any person who suffers from a mental disorder that affects his self-control and his ability to empathize should be similarly exempt.

This lack of fit between incapacity and exemption, moreover, is hardly a trivial one. Some would argue that almost all murderers on death row show characteristics that make them more like teen-agers than like adults, in both their ability to experience the weight of their crimes and their capacity to control themselves. Indeed, it is these weaknesses that may largely define much of the criminal population.

The under-inclusiveness problem, then, is that many (perhaps most) individuals on death row should qualify for exemption by the same reasoning as the young offender.

Imprecision of the Maturity Test: Overinclusiveness

In addition, there also turns out to be an over-inclusiveness problem in exempting all minors from the death penalty. The problem is this: At whatever age we choose, whether it is eighteen, seventeen, sixteen, or fifteen, there will be people in that age group who do in fact have the same ability as or a greater capacity than their elders to understand and stop themselves from committing crimes.

We know of young people carrying out heroic deeds in times of war, for example. Such heroes are evidently able to understand fully and put into practice the difference between right and wrong.

It would therefore seem that some murderers - those, for example, who believe in the righteousness of their cause - could be fully responsible at a very young age. They should therefore be ineligible, as a matter of logic, for the exemption that they would receive under Missouri's approach to the Eighth Amendment.

Is Capacity the Whole Story? Taking Other Factors Into Account

I have been assuming consensus on the view that those who lack the capacity fully to appreciate the wrongfulness of their actions and to control their destructive impulses are less deserving of the ultimate sanction. But that assumption may, in fact, be in error.

Some people take the position that the harshness of a punishment should correspond to an individual criminal's character, as revealed by the circumstances surrounding his crime. On this view, for example, a young person who commits a childish prank should perhaps not be punished very harshly, because the prank does not reveal anything significant about the prankster (other than that he is a normal child).

A murder, however, of the sort that would expose a person to the death penalty (that is, a murder committed in the presence of aggravating circumstances) might be thought to reveal a very evil character in the person committing the crime. Being evil, moreover, may be entirely consistent with being incapable of empathy and poor at impulse control - the marks, some would say, of a psychopath or a recidivist criminal.

If a teenager (of whatever the magic age) is capable of deliberately inflicting grave harm on another person, some people might be more rather than less inclined to judge such a person "rotten to the core." "He was already committing murders at the tender age of sixteen," they could say.

Rather than mitigating an offense, then, youth might actually serve as a signal that we are in the presence of a truly bad person. Another way of saying this is that many people do not expect the murderous teenager to "outgrow" his affinity for violence, even if, theoretically, his ability to do so matures. A wicked child may thus be beyond redemption.

The national debate and evolving consensus over executing young people is not subject to easy resolution. For those of us who reject capital punishment, it follows necessarily that the young (at any age) may not be subject to the ultimate sanction. But for those who accept the death penalty, it might not be quite so obvious that only legal adults should be subject to it. The answer may ultimately depend on whether we really believe that those teen-agers who murder other human beings are likely to become better as they get older.

Sherry F. Colb, a FindLaw columnist, is Professor and Judge Frederick B. Lacey Scholar at Rutgers Law School-Newark. Her earlier columns may be found in the archive of her work on this site.

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