Capital Punishment and Juveniles

Order Code RS21969
Updated March 9, 2005
CRS Report for Congress
Received through the CRS Web
Capital Punishment and Juveniles
name redacted
Legislative Attorney
American Law Division
Summary
In Roper v. Simmons, 543 U.S. ____ (2005), the United States Supreme Court held
that the Eighth and Fourteenth Amendments forbid imposition of the death penalty on
offenders who were under the age of 18 at the time of the offense. In deciding Roper,
the Court was not writing on a clean slate. In 1988, in Thompson v. Oklahoma, 487 U.S.
815 (1988), the Court struck down the death penalty for juvenile offenders under the age
of 16. The Court last reviewed the issue in 1989, when its decision in Stanford v.
Kentucky, 492 U.S. 361 (1989) set the minimum eligibility age for the death penalty at
16, finding that there was not a national consensus against the execution of those aged
16 or 17 at the time of the offense. Since 1989, eight states have established a minimum
age of 18, raising the total number of states that ban juvenile executions to 30. The
Roper Court found that the “evolving standards of decency,” which led the Court in
Atkins v. Virginia, 536 U.S. 304 (2002), to ban the execution of mentally retarded people
are similar with respect to juveniles. The Roper decision overrules the Court’s prior
decision in Stanford. The immediate effect of this decision is to end the execution of
juveniles throughout the U.S., regardless of state law.
Legal Background. In 1988, the U.S. Supreme Court in Thompson v.
Oklahoma1 held that it constituted “cruel and unusual punishment” to execute persons
who were under 16 years of age at the time of the offense and thus was prohibited by the
Eighth Amendment of the U.S. Constitution. One year later, in Stanford v. Kentucky,2 a
4-1-4 plurality concluded that there was not a national consensus against the execution
of those aged 16 or 17 at the time of the offense and that such executions were thus
constitutional.
1 487 U.S. 815 (1988).
2 492 U.S. 361 (1989).
Congressional Research Service ˜ The Library of Congress

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In 2002, the Court revisited the constitutionality of capital punishment as applied to
offenders with mental retardation in Atkins v. Virginia.3 In Atkins, the U.S. Supreme
Court overruled its 1989 holding in Penry v. Lynaugh4 and found that the execution of
such individuals to be unconstitutional. The Court recognized a recently established and
evolving national consensus that quantifiable behavioral and cognitive limitations
diminish the moral culpability of offenders with mental retardation and, consequently,
impact their appropriate punishment. Concerning these offenders with mental retardation,
the Court specially stated:
Because of their disabilities in areas of reasoning, judgment, and control of their
impulses, however, they do not act with the level of moral culpability that
characterizes the most serious adult criminal conduct.5
Some contend that the Court’s reasoning in Atkins should apply with equal force to
juvenile offenders. Juvenile offenders and mentally retarded offenders, have been deemed
by one legal scholar as the “Siamese twins” of the death penalty, their status inextricably
linked in constitutional principle and substance.6 However, in footnote eighteen of the
Atkins majority opinion, the Court explicitly distinguished those with mental retardation
from juveniles with respect to a national consensus on application of the death penalty.
Justice Stevens noted that the list of states barring execution of those with mental
retardation had grown by 16 states since the original 1989 Penry holding. However with
specific reference to juvenile offenders, he said:
A comparison to Stanford v. Kentucky, in which he held there was no national
consensus prohibiting the execution of juvenile offenders over age 15, is telling.
Although we decided Stanford on the same day as Penry, apparently only two state
legislatures have raised the threshold age for imposition of the death penalty.7
State Supreme Court Decision. In 2003, the Missouri Supreme Court held that
the execution of juvenile offenders in Missouri violates the evolving standards of decency
and is prohibited by the Eighth Amendment ban on “cruel and unusual punishment” of
the U.S. Constitution.8 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 has specifically rejected the
very grounds on which the Missouri court based its decision: the fact that the petitioner
was under 18 at the time of his offense.
3 536 U.S. 304 (2002). For a legal analysis of this decision, refer to CRS Report RL31494,
Capital Punishment: Summary of Supreme Court Decisions of the 2001-02 Term by Paul Starett
Wallace, Jr.
4 492 U.S. 302 (1989)(holding that the executions of those with mental retardation was not
constitutionally proscribed).
5 Atkins v. Virginia, 122 S.Ct 2242, 2244 (2002).
6 Streib, Victor L., Adolescence, Mental Retardation, and the Death Penalty: The Siren Call of
Atkins v. Virginia, 33 N.M. L.Rev. 183 (2003).
7 Atkins v. Virginia, 122 S.Ct. 2242, 2249. Referring to Montana and Indiana.
8 Roper v. Simmons, 112 S.W.3d 397 (2003).

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In reaching its 4-3 decision in Roper, the Missouri Supreme Court followed the
approach taken by the U.S. Supreme Court in Atkins and examined objective factors
including (1) legislative action; (2) frequency of imposition of capital punishment on
juveniles and the frequency with which the sentence is actually carried out; (3) national
and international opinion; and (4) an independent examination of whether the death
penalty as applied to juveniles violates evolving standards of decency and thus is barred
by the Eighth Amendment.9
The Court noted that at the time Stanford was decided 11 states banned the execution
of juvenile offenders. Since Stanford, five more states have banned such executions.10
The Court opined that states have moved consistently in the direction of opposition to the
juvenile death penalty demonstrating that the standard of decency has evolved since
Stanford. The Court also noted that not a single state had lowered the minimum age for
execution from 18 during this time; and many states have considered legislation to raise
the minimum to 18.11
The Court noted that despite 22 states allowing the imposition of the death penalty
on juveniles only 6 (Missouri, Texas, Virginia, Georgia, Oklahoma and Louisiana), have
actually executed offenders since 1973 and that only three states (Texas, Virginia and
Oklahoma) since 1993.12 The Court found of particular significance the fact that only 22
juvenile offenders have been executed since reinstatement of the death penalty in 1976.13

Significantly, the Court cited international law prohibiting the execution of juveniles.
This included specifically Article 37(a) of the Convention on the Rights of the Child and
9 Id. at 407.
10 Id. at 408. The five states referenced in Roper are: Indiana, Montana, Kansas, New York, and
Washington. Since this decision, South Dakota and Wyoming passed legislation raising the age
of execution to 18.
Thirteen American jurisdictions do not have the death penalty: Alaska, District of
Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode
Island, Vermont, West Virginia, and Wisconsin. The following states preclude capital
punishment of offenders under 18 either by statute or judicial interpretation: California
(Cal.Penal Code Ann. § 190.5); Colorado (Colo.Rev.Stat. § 16-11-103(1)(a)); Connecticut
(Conn.Gen.Stat. § 53a-46a(g)(1)); Illinois (Ill.Rev.Stat., ch.38, ¶ 9-1(b)); Indiana (IC Stat. 35-50-
2-3); Kansas (Kan. Crime. Code Ann. Sec. 21-4622); Maryland (Md.Ann., Code, Art. 27, §
412(f)); Missouri (Roper v. Simmons, 112 S.W.3d 397 (2003)); Montana (Mont. Code Ann. § 45-
5-102(2)); Nebraska (Neb. Rev. Stat. § 28-105.01); New Jersey (N.J.Stat.Ann. § 2A:4A-22(a) and
2c:11-3(g)); New Mexico (N.M.Stat.Ann. §§ 28-6-1(A), 31-18-14(A)); New York (N.Y. Crim.
Proc. Law Sec. 400.27 and N.Y. Penal Law § 125.27); Ohio (Ohio Rev.Code Ann. §
2929.02(A)); Oregon (Ore.Rev.Stat. §§ 161.620 and 419.476(1)); South Dakota (S.D. Codified
Laws § 23A-27A)); Tennessee (Tenn.Code Ann. §§ 37-1-102(3), 37-1-102(4), 37-1-103, 37-1-
134(a)(1)); Washington (State of Washington v. Furman, 122 Wash. 2d. 440 (1993)(holding its
death penalty statute cannot be construed to authorize imposition of the death penalty for crimes
committed by juvenile offenders)); Wyoming (W.S. 6-2-101(b)).
11 Roper, 112 S.W.3d 397, 409.
12 Id.
13 Id.

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other international treaties and agreements.14 Alongside international law, the Court
looked to the views of the international community and worldwide imposition of the
juvenile death penalty.15 In addition, the Court found the opposition of many domestic
social, professional and religious groups to confirm the national consensus against the
execution of juvenile offenders.16
Finally, the Court examined whether the death penalty was warranted for juvenile
offenders in regard to fulfilling the primary social purposes of the punishment: retribution
and deterrence.17 Comparing juvenile offenders to those with mental retardation, the
Court found neither purpose to be furthered.18 The Court noted the lesser culpability and
reasoning ability of juvenile offenders addressed by the U.S. Supreme Court in
Thompson19 and concluded that the Supreme Court’s reasoning in Atkins regarding the
social purposes served by the death penalty is inapplicable to juvenile offenders.
The dissenters, quoting from Stanford, concluded there was neither a “historical or
modern societal consensus forbidding the imposition of capital punishment on” those
under 18 years of age at the time of the offense.20 Further, noting the U.S. Supreme Court
decision in Stanford and its subsequent refusal to readdress the issue despite recent
opportunities to do so,21 the Justices contended that the Missouri Supreme Court lacked
authority to overrule existing U.S. Supreme Court precedent.22
United States Supreme Court Decision. In Roper v. Simmons (Roper),23 a
divided Court held 5-4 that capital punishment for juveniles who committed their crimes
when they were under the age of 18 is unconstitutional. Writing for the majority,24 Justice
Kennedy conceded that the Court was reconsidering a decision it had made in Stanford
1989. In overturning the Stanford ruling, the Court set aside a statement made by four
14 Id. at 411.
15 Id. at 410.
16 Id.
17 Id. at 411. In Gregg v. Georgia the Court established that imposition of the death penalty
should “serve two principal social purposes: retribution and deterrence.” 428 U.S. 153 (1976).
18 Roper at 411.
19 Thompson, 487 U.S. at 835 (stating “there is also broad agreement on the proposition that
adolescents as a class are less mature and responsible than adults,” id. at 834, and therefore “less
culpability should attach to a crime committed by a juvenile than to a comparable crime
committed by an adult.”).
20 Roper at 419 (Price, J.,dissenting).
21 On two previous occasions, the U.S. Supreme Court declined to revisit the issue of the
execution of juvenile offenders. See Patterson v. Texas, pet. for cert. denied, 123 S.Ct. 24 (2002)
and In Re Kevin Nigel Stanford, pet. for writ of habeas corpus denied, 123 S.Ct. 472 (2003).
22 Roper at 419 (Price, J.,dissenting).
23 543 U.S. ____ (2005), 2005 WL 464890 (U.S.Mo.).
24 The majority consisted of Justices Kennedy, Breyer, Ginsburg, Souter and Stevens. Justice
Stevens wrote a brief concurring opinion, praising the Court for modernizing its view of the 8th
Amendment.

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Justices25 in that 1989 decision that the Court should not use its own independent
judgment to decide whether the death penalty was too great a punishment for particular
groups of individuals or crimes. The rejection in Stanford of that role for the Court, the
Roper majority stated, is “inconsistent with prior Eighth Amendment decisions.”26
Instead, following the standard the Court set forth in Atkins, the majority rested its
decision on three rationales: (1) that “evolving standards of decency that mark the
progress of a maturing society,”27 which led the Court in 2002 to ban the execution of
mentally retarded people are similar with respect to juveniles; (2) that the brutality of a
juvenile’s crime makes it all too likely that mitigating factors based on youth, such as
vulnerability and immaturity, would be overlooked;28 and (3) that the overwhelming
weight of international opinion against the juvenile death penalty provides confirmation
that the penalty is disproportionate punishment for juveniles.
The majority runs through the statistical case for an emerging national consensus
against the juvenile death penalty. But as the majority seems to realize, the statistical case
is not as strong as in Atkins. The Atkins Court was able to rely on the fact that, after 1989,
no state had gone on record affirming its desire to execute the mentally retarded. But the
situation with juvenile offenders is arguably different. Two states recently affirmed their
desire to execute particularly culpable juvenile offenders.29 Twelve states still have
juvenile offenders on death row. In finding now a national consensus against execution
of juvenile offenders, the Court noted that 30 states now bar such sentences (12 that have
abolished the death penalty for all persons, and 18 that retain the death penalty but do not
allow it for juveniles). The Court noted the infrequency of the execution of juvenile
offenders citing that in the last 16 years only six states have executed juvenile offenders,
but in the past decade, only three have done so: Oklahoma, Texas and Virginia.30
The majority conceded that, in contrast to the pace of states’ abolition of the death
penalty for the mentally retarded, the rate of change regarding juveniles has been slower.
25 It is worth noting that Justice Kennedy was one of the four Justices who endorsed that
statement. He did not explicitly explain his change of mind, but noted that the Court had
abandoned that statement when it ruled in Atkins.
26 Roper at *15.
27 Roper at *6 (quoting Trop v. Dulles, 356 U.S. 86, 100-101 (1978)).
28 Roper at *14 (stating that “an unacceptable likelihood exists that the brutality or cold-blooded
nature of any particular crime would overpower mitigating arguments based on youth as a matter
of course, even where the juvenile offender’s objective immaturity, vulnerability, and lack of true
depravity should require a sentence less severe than death.”)
29 Missouri and Virginia Legislatures, which, at the time of Stanford, had no minimum age
requirement, expressly established 16 as the minimum. See Mo.Rev.Stat. § 565.020.2 (2000);
Va.Code Ann. § 18.2-10(a)(Lexis 2004).
30 Roper at *9 (citing V. Strieb, The Juvenile Death Penalty Today: Death Sentences and
Executions for Juvenile Crimes, January 1, 1973-December 31, 2004, No. 76, p. 4 (2005),
available at [http://www.law.onu.edu/faculty/streib/documents/JuvDeathDec2004.pdf] ).

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Though less dramatic, the Court said, the change remains significant. In addition, the
Court also said that the trend away from executing juveniles was a consistent one.31
Besides relying upon that trend, the Court also cited scientific and sociological
studies showing significant differences between juveniles under 18 and adults, including
less sense of responsibility, susceptibility to negative influences, and the lack of fully-
formed character.32 The Court also noted that the two social purposes that the death
penalty serves, retribution and deterrence, have less force, or none at all, with regard to
juvenile offenders. The same characteristics of youth that make them less culpable than
adults also suggest they will be less susceptible to deterrence, the majority suggested.33
In finding a new consensus against executing juveniles, the Court also relied upon
what it called “the stark reality that the United States is the only country in the world that
continues to give official sanction to the juvenile death penalty.”34 The Court noted that
this reality is not “controlling,” since it is the Court’s responsibility to interpret the 8th
Amendment. However, the Court added that since 1958 the Court “has referred to the
laws of other countries and to international authorities as instructive” in defining the
meaning of that 8th Amendment’s prohibition of “cruel and unusual punishments.”
Justice O’Connor wrote a dissent only for herself, in which she argued that the
majority had not found a “genuine national consensus” against executing juveniles; rather
it simply relied on its own independent moral judgment that death is a disproportionate
penalty for any 17-year-old offender.35
Justice Scalia,36 in a markedly bitter dissent, condemned every facet of the Court’s
approach to the Eighth Amendment issue. He said the consensus discerned by the
majority was on “the flimsiest of grounds.” He also argued that the Court illegitimately
had cast aside the judgment of the people’s representatives, and substituted its own
proclamation of itself as “the sole arbiter of our nation’s moral standards.”37 In addition,
he also lambasted the majority for its reliance upon what he called “like-minded
foreigners.”38
31 Roper at *10.
32 Id. at *11-12 (discussing the general differences between juveniles under 18 and adults).
33 Id. at *13 (concluding that neither retribution nor deterrence provides adequate justification
for imposing the death penalty on juvenile offenders).
34 Id. at *16.
35 Roper at * 19 (O’Connor, J., dissenting).
36 Joined by Chief Justice Rehnquist and Justice Thomas.
37 Roper at *31 (Scalia, J., dissenting).
38 Id.

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