Singing Loudly

Domestic: Factual

The factual test required by the Eighth Amendment in death penalty cases was established in the case of Trop v. Dulles. The facts in this decision did not involve the prospect of the imposition of the death penalty, but, rather, it was a case that looked at whether a military statute that took away the convicts citizenship was cruel and unusual under the Eight Amendment. The Court stated that if the cruel and unusual proscriptions are to have meaning it must derive from that the basic concept underlying the Eighth Amendment is nothing less than the dignity of man. The words of the Amendment are not precise, and their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. What informs the status of the evolving standards was not discussed by the Court.

The information that the court considered in Roper was delineated in Thompson v. Oklahoma. This analysis is informed by four sources: legislative enactments, jury propensity, respected opinions and views, and the Supreme Court’s own judgment on social purposes. In deciding that it was unconstitutional to sentence a juvenile under sixteen years old, the court looked at all four of these types of information. Here the legislative enactments included the fact that fourteen states had no death penalty, nineteen states allowed the death penalty without age limitations, and eighteen states which had set an age limit, set it at least sixteen years old. This supported the conclusion that the legislative enactments supported the conclusion that it would offend civilized standards of decency to execute a person who was less than sixteen-years-old at the time of the offense. Jury behavior showed a declining amount of juveniles sentenced to the death penalty. From 1982 to 1986 there were over 82,000 people arrested for willful homicide, but only five of 1394 sentenced were under sixteen. What is more, only one execution has been on an offender who was under sixteen at the time of the offense.

As far as respected opinions, the court stated that these could be from groups and associations writing amicus briefs and foreign practices, however, they did not elaborate much in this decision on those types of information. Under the Supreme Court’s own opinions it pointed out that they had already held juveniles to be less culpable since inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. In the Court’s opinion, as written by Justice O’Connor, the juvenile's reduced culpability, and the fact that the application of the death penalty to this class of offenders does not measurably contribute to the essential purposes underlying the penalty, also support the conclusion that the imposition of the penalty on persons under the age of 16 constitutes unconstitutional punishment.

A year later the court was asked to see if the evolving standards of decency was different when the age of the juvenile was seventeen. In Stanford v. Kentucky, Justice Scalia delivered the opinion of the court in holding that the imposition of the death penalty against sixteen or seventeen year old offenders was not a violation of the Eight Amendment, based in large part on legislative enactments. The Court went though the various factual inquiries and found that legislative enactments were the most persuasive because it was objective facts. In this case there were thirty-seven states that permitted the death penalty. Of those, fifteen states set the age limit at sixteen years old and twelve states set the age limit at seventeen years old. In regards to jury propensity, the court looked at statistics from 1982 until 1988 which showed that out of 2108 total death sentences there were fifteen who were sixteen years or younger and thirty who were seventeen. This showing that there is not enough support to conclude juries are adverse to sentencing the death penalty to juveniles. Justice Scalia refused to give any weight to respected opinions as they have uncertain foundations. Of course, this is reflected in his dissent now that the court disagrees with him.

This leads up to the Supreme Court of Missouri’s decision in Simmons v. Roper that served as the basis for Roper. Simmons was sentenced to death for a murder he committed when he was seventeen years old. With regards to legislative enactments, Missouri argued that since Stanford there were five more states that had banned the juvenile death penalty. This created a total of twenty-eight states that prohibited the juvenile death penalty. Missouri noted that the Supreme Court, in Atkins v. Virginia, specifically pointed out thirty states banned the execution of mentally retarded people. Furthermore, there were two states that reinstated the death penalty since Stanford, but chose to set the age limit at eighteen. This is indicative of a legislative aversion to the juvenile death penalty near the level of the mental retardation aversion.

Missouri found that the jury practice also demonstrated an aversion to the juvenile death penalty. There are twenty-two states that permit the juveniles to receive the death penalty yet since Stanford only six states had actually applied it. Of these six states, only three have actually imposed it since 1993. Those three states account for eighteen of twenty-two total executions of juvenile offenders since 1973. The numbers of juvenile offenders sentenced to death is actually less than the number of mentally retarded offenders sentenced before it was ruled unconstitutional. The jury practice, therefore, seemed to show that only three states actually supported the juvenile death penalty, and their support was negligible. In line with this was the respected opinions. On the national level there were over fifty Amicus Curiae briefs filed in Stanford. Many professional studies were included in this group, including the American Bar Association and the American Medical Association. Importance was also placed on a University of Missouri study showing that only 34% of Missouri supported the juvenile death penalty. Finally, the court noted that Stanford suggested that the respected views did not deserve as much weight, however, this was changed in Atkins when the respected reviews were carefully considered.

In the next post in this series I will get to why International law is so critical and necessary.


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