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    This unit covers the Supreme Court case regarding the use of capital punishment on minors. It covers the majority and dissenting opinions as well as explaining the importance of the case.

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    This unit covers the Supreme Court case regarding the use of capital punishment on minors. It covers the majority and dissenting opinions as well as explaining the importance of the case.

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    © All Rights Reserved
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    14 views12 pages

    Unit 3.5 of Taking Sides by Katsh

    Uploaded by

    Ben Helzner
    This unit covers the Supreme Court case regarding the use of capital punishment on minors. It covers the majority and dissenting opinions as well as explaining the importance of the case.

    Copyright:

    © All Rights Reserved
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    182 __|_strastcnn Vonage serene ISSUE —————————— Selected, Edited, and with Issue Framing Material by: 'M. Ethan Katsh, University of Massachusetts, Amberst Does the “Cruel and Unusual Punishment” Clause of the Eighth Amendment Bar the Imposition of the Death Penalty on Juveniles? YES: Anthony Kennedy, from “Majority Opinion, Donald P, Rope, Superintendent, Potosi Comectonal Center, Petitioner», Cheistopher Simmons” (US. Supreme Court, March 1, 2008) ‘NO: Antonin Scalia, fom "Minority Opinion, Donald P. Roper, Superintendent, Ptas! Corectional Center, Pet loners. Christopher Soramons" (U.S. Supreme Court, March 1, 2008) ‘Learning Outcomes After reading this issue, you will be able te | + Senay te smarts between the death peraliys application fo the mentally retarded and to juveniles «+ Discuss how changing standards within our society can affect the interpretation of the Constitution, «+ Discuss differing opinions of justices on the application of international law and norms to our own | |L__fursprudence ISSUE SUMMARY ‘YES: Supreme Court Justice Anthony Kennedy holds that the Constitution prohibits the execution of a per ‘son who was under the age of 18 a the time of the offense. NO? Supreme Coust Justice Antonin Scalia belleves thatthe Constitution does not preciuce the execution of a juventte Te questons ot now soit punishes ts wrongioes, sn to wha exe ids oa cet the ey SU tue! onan, thse questo ae partly Snplerin dette octes em st, emocmt sree hm monopely ove te ue of wolee, When Semen ats pa, tey do 0 he nme of i Seon Suen queston ae prilny get when they Sa Jeena prshnene Det ofen a eet Toone tes if shuld the stute tke i thes Icom se qutonsae infos by cents of Seba Foceampe, ibs nen Tuc rd he 0. tng egrets by Geom in appr te death pa ‘nish them as they deserve, and teach your other alles by a stking example that the penalty of febellion is death. Let them once understand this ‘nd you will not so often ave to neglect your ene- ‘les while you ae Sighting with your confederates, In response, Diodotus wrote: Al states and individuals ace alike prone to ex tnd there is mo law that will prevent them, ot ‘why should men have exhausted the Ist of pune |shments in search of enactments to protect them from evildoers? Ht is probable that in early mes the penalties for the greatest offenses were less severe, and that as these were disregarded, the penalty of death has been by degrees in most eases azved at, which is self disregarded in ke ‘mannes. Lither some means of terror more terible ‘than tis must be discovered, or it must be owned that this cestaint is ules... We must male up ‘our minds te look for our protection not to legal terrors bu to cateful administration. During the last four decades, the U.S. Supreme Co: ‘has frequentiy been conftonted with desth penalty cas ‘The most significant was that of Furman v. Georgia, 408 238 (1972), Furman, a 26-yeanold African Amertcan, had Killed a homeowner during a breakin and was sentenced ‘0 death, In a $ to 4 decision, the Court overturned the sentence. It held thatthe procedure used by Georgia (and ‘most other states atthe time) was “cruel and unusual” an, therefore, a violation of the Eighth Amendment of the Constitution, Two justices, Thurgood Marshall and Wil. Yam Brennan, believed that at that point in the develop ‘ment of American society infliction of the death penalty ‘under any circumstances violated the Cruel and Unusual Punishments Clause ofthe Eighth Amendment. The thzee ‘other justices in the Furman majority, however, held that the death penalty was not inherently unconstitutional, but that the procedures through which it was applied fn that specific case were. In particular, Georgia law left it to the discretion of the jury to decide whether or not capital punishment was appropriate in each case, leading the death penalty to be administered in an arbitrary and potentially discriminatory fashion, Furman sesulted in a nationwide morstorlum on ‘apttal punishment that lasted until the Supreme Court revisited the issue in 1976 n Grege» Georgla, 428 US. 134, Jn Greg, the Court upheld a revised Georgia death penalty Statute that, in Keeping with the Furman guldelines, was Intended to limit the capital jury’ discretion, The proc. 38 effected a bifurcated tral—divided into a “guilt phase” and a "penalty phase”—that almed at greater equalization of punishment, while at the same time, remaining sensi- tive to the unique characteristics ofthe individual defend: \eand the circumstances ofthe crime. ‘Actual executions resumed in 1977 and 35 states cur. rently have a death penalty. From the 1970s to the present, the USS. Supreme Court has continued to examine various aspects of the admintstration of espital punishment, but a ‘majority of the Court has continued to ind thatthe death ‘penalty in itself fs consistent with the requitements of the Eighth Amendment. A majority af the Court has also held, however, that the meaning of the Eighth Amendment is not fixed but continues to evolve, Accordingly, in 2002, the Court found in Atkins v, Viginia, $36 US. 304, that a “national consensus” had evalved against the execution of the mentally retarded and held that such punishment ‘now violates the highth Amendment's prohibition of cruel and unusual punishment, ‘The United States is not alonein the world inemploy- {ng capital punishment, but it does have some cutioes bedfellows. In 2012, the United States executed the afth ‘most people, behind China, Iran, Iraq, and Saud Arabia, and vas followed by Yemen and Sudan. Within the US. Penal system, there is nota preference for the death pen alty as a form of punishment, but rather these numbers are the product of the extraordinary number of incarcer. ated Individuals in this country. With more than 2.2 mil. lion peopie under lock and key, the United States has the highest rate of incarceration of any country in the world, ‘with more than 730 people pet 100,000 beltind bars Just as the U.S. Supreme Court appears to be evolv- {ng in its opinion, so too does the zest of the world. The ‘umber of countries that employ the death penalty hes slowly been falling with only 25 countces in 2022 ‘out death sentences, and in December 2012, the United ‘Nations passed a resolution calling for a moratorium on. the use ofthe death penalty with a view to its abolishment. More than half the world’s countries—111—voted in favor Of the resolution, and approximately 150 countries have ether abolished or no longer practice capital punishment, Roper s Simmons presented the U.S. Supreme Court ‘with the question of whether ort the execution of some- fone who was 16 or 17 at the time of titer capital offense 4s “eruel and unusual.” Clearly, the Eighth Amendment does not explicitly prohibit capital punishment What 4s far less clear is what the language of that amendment ‘means when. we attempt to apply it under ever changing historical and cultural conditions. Does the language of the Eighth Amendment mean today what it meant at the end of the eighteenth century when it was written? JE not, what is the proper mechanism for determing i changed meaning? And, who should be the authoritative agent for interpreting this change, Congress, the Courts, cr the people themselves? ‘The interpretive problems that attend the mesning. of the Fighth Amendnient are one manifestation af more ‘general disagreements about constititional interpretation. Justice Kennedy assumes a central role for the cour!s_—thne Sapreme Court in particular—in determining the mean. ‘ing of the Bighth Amendment, Kennedy's interpretive approach requires the courts to “read” public opinion +9 ‘comprehend dominant trends in state legislative enact. ‘ments, and to be aware of comparative legal developmients {in the international arene. Justice Scalia, however, believes that each of these moves is but a part of a more general problem of misunderstanding the proper nature of the Jadicial role, a misunderstanding that cisks the legitimacy of the court itself. 184 oe YES ¢/ “Taking Sides: Clashing Views on Legal ssues, Sixteenth Eton Expanded Anthony Kennedy Majority Opinion, Donald P. Roper, Superintendent, Potosi Correctional Center, Petitioner v. Christopher Simmons ee ream enticing er an ee ace al ic nace ois ee er Geisinger [After these proceedings in Simmons’ case had run thelr ccoiirse, this Court held that the Fighth and Fourteenth ‘Amendments prohibit the execution of amentally retarded | person, Atkins », Vigna, $36 U.S. 304 (2002). Simmons Bled a new petition for sate postconviction relief, aguing, that the reasoning of Atkins established that the Consttu- tion prohibits the execution of a juvenile who was under 18 when the crime was committed. “The Missourl Supreme Court agreed. State ex rl. Sime rons v. Roper, 142 8. W. 34 397 (2003) (en banc). TE held that since Stanford, “y national consensus has developed against the execution of juvenile offenders, 2s demonstrated by te fat that eighteen stats now bar such exe- Cations for juveniles, that twelve other states bar ‘executions stogether, that no state has lowered fis age of execution below 18 since Stanfond, chat five states have legislatively or by case law tased fr established the minimum age at 18, and that tie imposition ofthe juvenile death penalty has become trly unusual over the lat decade.” 112 SW. 3 2839, On this reasoning It set aside Simmons’ death sentence and resentenced him to “life imprisonment without eigi- bility for probation, pazole, or release except by act of the Governor" ld, at 413 ‘We granted certiorat, $40 U.S. 1160 (2004), and now stim. ‘rom Supreme Coor ofthe Unltd Sates Mare I “The Bighth Amendment provides: “Bxcessive bil shall not ‘berequlsed, nor excessive nes imposed, nor cruel arid unu- sual punishments infilcted.” The provision 1s applicable to the States through the Fourteenth Amendment. As the ‘Court explained in Atkins, the Bighth Amendment guaran- ‘ees individuals the right not to be subjected to excessive sanctions, The zight flows from the basic “ precept of ja tice that punishment for crime should be graduated and ‘proportioned to [the offense.” By protecting even those Convicted of heinous crimes, the Highth Amendment ret firms te duty of the goverriment to respect the dignity of all persons. ‘The prohibition against ‘cruel and unusual punish- iments," lik other expansive langwagean the Constitution, must be interpreted according to is text, by considering flstory tradition, and precedent, and with due regard for its purpose and function in the constitutional design. To implement this framework we have established the prope ity and affirmed the necessity of referting to “the evolving Standards of decency that mark the progress of a maturing Socety” to determine which punishments are so dispro- pportionate as to be eruel and unusual. Tn Thompson ¥. Oklahoma, 487 US. 815 (1988), @ plurality of the Court determined that our standards of Gccency do not perunt the execution of any offender under the age of 16 at the time of the crime. Id, at 818-838. The plurality opinion explained that no desth penalty State that had given express consideration to a minimum ag for the death penalty had set the age lower than 16. ay at 826-829. The plurality also observed that "jhe conchi- sion that it would offend civilize standards of decency to execute a person who was less than 16 years old atthe time of his ot her offense Is consistent with the views that have been expressed by respected professional organlza- tions, by other nations that share our Anglo-American heritage, and by the leading members of the Wester European community.” Id, at 830. "The next yeas, in Slanjond v. Kentucky, the Cour, ... eferred to contemporary standards of decency in this country and concluded the Elghth and Pourteentit Amendments did not prosenbe the execution of juvenile offenders over 15 but under 18,...A plurality of the Court also "emphatically rejectied)” the suggestion that ‘the Court should bring its own judgment to bear on the acceptability ofthe juvenile death penalty. The same day the Court decided Stanford, it held ‘that the Bighth Amendment did not mandate a categori- cal exemption trom the death penalty for the mentally retarded. Pony v. Lynaugh, 492 U.S. 302 (1969). In reach. {ng this conclusion it stressed that only two States had enacted laws banning the imposition of the death pen- alty on a mentally retarted person convicted of a capital offense. li, at 334, According to the Court, "the two state statutes prohibiting execution of the mentally retarded, even when added to the 14 States that have rejected eapl fal punishment completely, [did] aot provide suffctent ‘evidence at present of a national consensus,” Ibid. ‘Three Terms ago the subject was reconsidered in Atkins, We held that standards of decency have evotved since Pemy and now demonstrate that the execution of the mentally retarded Is cruel and unusual punishment. The Court noted objective indicia of society's standards, as expressed in legislative enactments and state practice with respect to executions ofthe mentally retarded. When Atkins was decided only « minority of States permitted the Practice, and even in those States it was rae, 536 US., at 314-315. On the basis of these indicia the Court deter ‘mined that executing mentally retarded offenders “as become truly unusual, and it is fair to say that a national ‘consensus has developed agalnst it.” Id, at 316... ‘The Atkins Court neither repeated aor zelied upon the statement in Stamford that the Court's independent jdg- ‘ment has no bearing on the acceptability of « particular punishment under the Righth Amendment, Instead we Fetumed to the rule, established ia decisions predating Stanford, that the Constitution contemplates that in the end our ovm judgment will be brought to bear on the ques. tion of the acceptability of the death penalty under the Flghth Amendment... Based on these considerations and on the finding of national consensus against execut- ing the mentally retarded, the Court ruled that the death ‘penalty constitutes an excessive sanction forthe entire cat ‘egory of mentally retarded offenders, and that the Eighth ‘Amendment “‘placesa substantive restriction on the States Dower to take the life’ of a mentally retarded offenden.” Just as the Atkins Court reconsidered the Issue decided in Penry, we now seconsider the issue decided in Stanford, The begioning point is 2 eview of objective indi- cia of consensus, a expressed in particular by the enact: ‘ments of legislatures that have addressed the question, ‘This data gives us essential instruction, We then must determine, in the exercise of our own independent judge ‘ment, whether the death penalty is a disproportionate punishment for juveniles ‘The evidence of national consensus against the death pen. alty for juveniles is similar, and in some respects parallel, sees to the evidence Atkins held sufficient to demonstrate a national consensus against the death penalty for the men- tally etarded. . ‘Though less dramatic than the change from Penry to Atkins... we sil consider the change from Stanford to thls case fo be significant... The number of States that hhave abandoned eapital punishment for juvenile offend- er since Stanfard is smaller than the number of States that abandoned capital punishment for the mentally retarded after Perry, yet we think the same consistency of direction of change has been demonstrated, Since Stanford, no State that previously prohibited capital punishment for juve: niles has reinstated it. This fact, coupled with the trend ‘toward abolition of the juvenile death penalty, caries spe- cial force in light of the genetal popularity of antiede legislation, and ia light of the particular trend In recent years toward cracking down on juvenile crime in other respects... ‘Asin Atkins, the objective indicia of consensus in thls ‘case—the rejection of the juvenile death penalty in the majority of States; the infrcquency of its use even where ‘it remains on the books; and the consistency ia the trend toward abolition of the practice—provide sufficient evie dence that today our soctety views juveniles, in the words Atkins used respecting the mentalty retarded, 3s."categodl= sally ies culpable than the avecage criminal.” 536 US, at 316, A majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Fighth Amendment, Because the death penalty is the most severe pun- ishment, the Eighth Amendment appites to it with spe ial force. Capital punishment must be limited to those offenders who commit "a narrow category of the most serlous crimes" and whose extreme culpability. makes ‘them “the most deserving of execution.” ‘Thee general differences between juveniles under 18 and adults demonstrate that juventle offenders cannot with reliability be classed among the worst offender Bist... ‘The second area of difference ‘The third broad difference ‘These differences render suspect any conclusion that a Javenile falls among the worst offenders. The susceptibility ‘of juveniles to immature and iresponsible bebaviot means “their inesponsible conduct is not as morally reprehens- ble as that of an adult.” Thompson, supra at 835 (plurality opinion). Thelr own vulnerability and comparative lack of control over their immediate surcoundings mean juveniles, hhave a greater claim than adults to be forgiven for failing to escape negative influences in thelr whole environment, See Stanfind, 492.US, at 395 (Brennan, J, dissenting). The reality that juveniles still struggle to define their identity EE ——————— 186 | | sensi cn non pi ne tn | con means iti ess supportable to conclude that even a heinous ‘crime committed by a javenile Is evidence of iretzevably Gepraved character. rom a moral standpoint it would be ‘misguided to equate the fallings of a minor with those of tn adult, or greater possibility exists that a minor's char- fate: deficiences will be reformed, Indeed, “t]he relevance ‘of youth as a mitigating factor derives from the fact that the signature qualides of youth are transient; as individ fals mature, the impetuousness.and recklessness that may dominate in younger years can subside.” fohmson, supra at 1365; see also Steinberg & Scott 1014 ("For mast teens, sky ‘of antisocal] behaviors are fleting; they cease with matur ‘iy as individual Kdenity becomes settled. Only a relatively Small propoction of adolescents who experiment in risky dr ilegal activities develop entrenched pattems of problem ‘ebavior that persist into aculthood”). ‘Once te diminished culpability of juveniles is rec- ‘ognized, its evident that the penological justifications for the death penalty apply to them with leser force than to ‘adults. We have held there are two distinct soclal purposes Served by the death penalty: “xetribution and deterrence bf capital crimes by prospective offenders." As for retrbu- thon, we rematked in Atkins that "(if the culpebility of the laverage murderer s insufficient to Justify the most extreme sanction available to the State, the lesser culpability of the meataly retarded offender surely does not mestt that form of retibution,” The same conclusions follow from ‘the lesser culpability of the juvenile offender, Whether Yiewed as an attempt to express the community's moral ‘outrage oF as an attempt to right the balance for the wrong, to the victim, the case for retribution is not as strong with ft minot as with an adult, Retribution is not proportional ifthe law’ most severe penalty is imposed on one whose culpability or blameworthiness is diminished, to a sub- Stantial degree, by reason of youth and iramaturty. ‘As for deterrence, it is unclear whether the deoth penalty has a significant or even measurable deterrent Etfect on juvenlies, as counsel for the petitioner acknowl. ‘edged at oral argument. . a concluding that nether retribution nor deter rence provides adequate justification for imposing the ‘death penalty on juvenile offenders, we cannot deny or foverlook the bratal crimes too many juvenile offenders hhave committed. . Drnving the line at 18 years of age is subject; of course, 9 the objections always ratsed against categon- tal rules, The qualities that distinguish juveniles from ‘adults do not disappear wher an individual turns 18. By: ‘the same token, some under 18 have already attained a evel of maturity some adults wil never reach, For the #e3- sons we have discussed, however, a line must be drawn. ‘The plusality opinion in. Thampsom drew the line at 16 In the intervening years the Thompson plurality’ conclu- sion that offenders under 16 may not be executed has not ‘been challenged, The logic of Tiompson extends to those who are unde: 18, The age of 18 is the point where society ‘Graws the line for many purposes between childhood and aduithood. Ts, we conclude, the age at whieh the line for ‘death eligibility ought to rest. - ur determination that the death penalty ts dispropor- tionate punishment for offenders under 18 finds contr. mation Jn the stark reality that the United States is the nly country in the world that continues to give official Sanction to the juvenile death penalty. This reality docs hot become controlling, for the task of interpreting the ighth Amendment remains our responsibilty Yt atleast from the time of the Court's decision in Trop, the Court ha referred to the laws of other countries and to interna fHonal authorities as instructive fr its interpretation of the Eighth Amendment's prohibition of “cuel and unusval ponishments.”. .. ‘As respondent and 2 number of amicl emphasize, [Article 37 of the United Nations Convention on the Rights ofthe Child, which every countsy in the world has ratified Save for tae United States and Somalia, contains an express prokibition on capital punishment for crimes committed by juveniles under 18... Respondent and his amici have submitted, and peti- loner does not contest, that only seven countries other than he United States have executed juvenile offenders Since 1990: Iran, Pakistan; Saud) Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and Chine, ince then tach of these countries has either abolished capital pun- {shment for juveniles or made public disavowal of the practice. Brief for Respondent 49-50. In sum, it is fale to fay that the United tates now stands fone in.a workd that hhas turned its face agalnst the juvenile death penalty. If ls proper that we acknowledge the overwhelming, weight of Intemational opinion against the juvenile deat penalty, resting in large pat on theunderstanding that the Enstabitty and emotional imbalance of young people may bften be # factor in the crime, See Bret for Human Rights Commattee of the Bar of England and Wales etal. as Amit Curiae 10-12, The opinion of the world community, while not controlling our outcome, does provide respected and Significant conimation for our own conclusions. Over time, from one generation to the next, the Constitution has come fo earn the high respect and even, 4s Madison dared to hope, the veneration of the American people. See The Federalist No. 49, p.-3i4 (C. Rossiter ed. 19¢1), The document sets forth, and rests upon, innove tive principles original to the American experience, such fs federalism; a proven balance in political mechanisms through separation of powers; specific guarantees for the accused in criminal cases; and broad provisions to secure Individual freedom and preserve human dignity, These ocitines and guarantees are central to the Americar experience and remaln essential to our present-day sel ‘eGnition and national identity. Not the least of the rea- Sons we honor the Constitution, then, is because we know it to be our own. It does not lessen ous Bidelty to the Cone stitution or our pride in its origins to acknowriedge that the express affrmation of certain fundamental rights by other nations and peoples simply underscores the centrallty of those same rights within our own heritage of freedom. The Fighth and Fourteenth Amendments forbid imposi- tion of the death penalty on offenders who were under the age of 18 when their crimes were committed. The idgment of the Missouri Supreme Court setting aside the ' ern pon ie Gent Partyon dene yah | Arner rg foe sentence of death imposed upon Christopher Sirimons fs affirmed. 111s so ordered, Awmiowy Kiso is an associate justice of the US. Supreme Court. He received his LU from Harvard Law School in 1961 and worked for aw fms fa Sen Francisco and Sacramento, Callfomta, until he was nominated by President Gerald Ford to the U.S. Court of Appeals for the Ninth Ciscuit in 1975. He was nominated by President Ronald Reagan to the Supreme Court in 1988, Antonin Scalia 4 NO Minority Opinion, Donald P. Roper, Superintendent, Potosi Correctional Center, Petitioner v. Christopher Simmons USTICE SCALIA, with whom THE CHIEF JUSTICE and ICE THOMAS Join, dissenting In urging approval of a constitution that gave life tenured fadges the power to nullify laws enacted by the people's representatives, Alexander Hamilton assured the citizens of New York that there was lite risk in this, ince “(ghe judiciary... ha(s) neither FORCE nor WILL but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter fd, 1961), But Hamilton had in mind a traditional judiciary, “pound down by strc: rules and precedents which serve to define and point out their duty n every particular case that ‘comes before them.” [d, at 471. Bound down, indeed. What ‘2 mockery today's opinion makes of Hamilton's expecta- tion, announcing the Court's conclusion that the meaning of our Constitution has changed over the past 15 years— ‘not, mind you, that this Cours decision 15 years ago was ‘wrong, but that the Constitution. has changed. The Court reaches this implassble result by purporting to advert, not to the original meaning of the Eighth Amendment, but 10 “the evolving standards of decency,” ante, at 6 (internal quotation macks omitted), of our national society, it then finds, on the flmsiest of grounds, thata national consensus which could not be perceived in our people's laws barely 15 years ago now solidly exists. Worse stil, tne Court says in 30 ‘many words that what our people's laws say about the Issue ‘does not, inthe last analysis, matter: “[ljn the end our own, judgment wil be brought to bear on the question of the acceptability ofthe death penalty under the Fighth Amend ment.” Art, at 9 (intemal quotation macks omitted), The CCoure thus procialms itself sole arbiter of our Nation's moral standards—and in the course of discharging that awesome responsibility purports to take guldance from the views of foreign courts and legislatures. Because I do not believe tat the meaning of our Eighth Amendment, any more than the ‘meaning of other provisions of our Constitution, should be determined by the subjective views of five Members ofthis Court an like-minded foreigners, {dissent ‘We have held that this determination should be based on. “objective indicla that reflect the public atitude toward a given sanction"—namely, “statutes passed by socie- ty’s elected representatives” As in Atkins v Vigna, S36 US, 304, 312 (2002), the Court dutifully recites this test and claims halheartedly that a national consensus fas ‘emerged since out decision in Stanford, because 18 States~ ‘or 47% of States that permit capital punishment—now have legislation prohibiting the execution of offenders cinder 18, and because al of fou States have adopted such legislation since Stanford ‘Words have no meaning ifthe vlews of fess than 50% of death penalty States can constitute a national con- Sensus, Our previogs cases have required overwhelming Opposition toa challenged practice, generally over a long period of time. Tn an attempt to keep afloat its implausible eser- tion of national consensus, the Coust throws overboard 4 proposition well established in our Bighth Amendment jurisprudence. "Ie should be observed," the Court say, "thatthe Stanford Court should have considered those states that had abandoned the death penalty altogether, as part of the consensus against the juvenile death pen- ary... a Sfates decision to bar the death penalty Altogether of necesity demonstrates a judgment thet the death penalty 48 inappropriate for all offenders, inciuding juvenile.” The insinuation that the Court’ new method of counting contradicts only “the Stanford Court" is misleading, Nove of our cases dealing with an alleged constitationa imitation upon the death penalty has counted, a States supporting a consensus in favor ofthat limitation States that have eliminated the death penalty entirely. And with good reason, Consulting States that bar the death penalty conceming the neces- Sity of making an exception to the penalty for offenders under 18s rather Ike Including oldordet Amishmen In 2 consumer-preference poll on the electric car. Of course they don't ike it, but that sheds no light whatever on the point at sue, That 12 States favor no executions 7s something about consensus against the death penalty, Dut nothing absolutely nothing—about consensus that offenders under 18 deserve special immunity from such 4& penalty. In repealing the death penalty those 12 States consideted none ofthe factors that te Court pts forth a determinative of the issue before us today—lower Culpabilty of the young, inherent recklessness, lack of ees the Ciel and Unusual Punishment Clausen th Ameeidment Bar Imposition of the Death Penalty on Juveniles? by KATSH ‘capacity for considered judgment, etc. What might be relevant, perhaps, is how many of those States permit 16- and 17-year-old offenders to be treated as adults with respect to non-capltal offenses. (They all do;? indeed, some even reguire that juveniles as young as 14 be tried as edults if they are charged with murdes*) The attempt by the Court to turn its remarkable minority consensus into a faux majority by counting Amishmen Is an act of nomological desperation, ‘The Courts reliance on the infrequency of execu- tions, for under-18 murderers, ante, at 10-11, 13, credits ‘an argumient that this Court considered: and explicitly rejected in Stanford. That infrequency Is explained, we accurately sald, both by “the undisputed fact that a far smaller percentage of capital crimes are committed By persons under 18 than over 18," 492 US,,a¢ 374, and by the fact that juties are requlced at sentencing to consider the offenders youth as a mitigating factor. Thus, “it 1s not only possible, but overwhelmingly probable, that the ‘very considerations which induce [respondent] and [his] supporters to believe that death should never be imposed fon offenders under 18 cause prosecutors and juries to Delleve that it should rarely be Imposed,” Stanford, supra, at374.. OF course the real force driving today’s decision isnot the actions of four state legislatures, but the Courts “own, judgment” that murderers younger than 18 can never be es morally culpable as older counterparts. The Court claims that this usurpation of the rte of moral arbiter Is simply a“returf] to the rll] established in decisions pre- ating Stafod.* That supposed rule—whih is reflected solely in dicta and never once i a holding that purports to supplant the consensus of the American people withthe Jastices’views!—was repudiated in Stanford for the very good reason that {thas no foundation in law or logl, if the Fighth Amendment set forth an ordinary rule of law, It would indeed be the role of this Cour to Say what the law is, But che Court having pronounced that the Fighta Amendment is an ever-changing refiecion of “the evr dng standards of decency” of our society, it makes no sense for the Justices then 10 prescribe thost standaids rather than discem them from the practices of our people. On the evolvingstandazds hypothesis, the only legitimate function of this Court sf identify a moral consensus of the American people. By what concelvable warrant can rine lawyers presume to be the authoritative conscience of the Nation?* ‘The resson for insistence on legislative primacy is ‘obvious and fundamental; “{f]n a democratte society legislatures, ot couts are constituted to sespond to the vill and consequently the moral values of the people.” Gregg v Georgia, 428 US, 183, 175-176 (1976) (ola opin- ton ot Stewart, Powell, and STEVENS, J) (Quoting Funan ¥. Georgia, 408 U.S. 238, 383 (1972) (Burge, C.]., dissent- ng). For a simllar reason we have, in our determination of society's moral standards, consulted the practices of sentencing furtes: Juries “maintain a link between con- ‘temporary community values and the penal system" that this Court cannot claim for itself. Gregg, supra, at 181 (quoting Witherspoon v Iinos, 391 US. 810, S19, n. 15 (1968). Today's opinion provides a perfect example of why Judges are ill equipped to make the type of legislative judg- ments the Court insists on making here. To support its opin- jo that States should be prohibited from imposing the death penalty on anyone who committed murder before age 18, te Coust looks to scientific and sociological studies, pick ing and choosing those that support its position. Tt never explains why those patticular studies are methadotogally sound; none was ever entered into evidence o tested in an adversarial procecding. In other words all the Court has done today, to bor row from another context, isto look over the heads of the ‘crowd and pick out ts friends. . That “almost every State prohibits those under 18 yyeats of age from voting, serving on furles, or maz ‘without parental consent,” ante, at 15, is patently ire} levant—and Is yet another resurrection of an argument that thls Court gave a decent burial m Stanyord... As we explained in Stanford, tt is “absurd to think that one must ‘be mature enough to drive carefully, to drink responsibiy, or to vote intelligently, in order to be mature enough to understand that murdering another human being is pro- foundly wrong, and to conform one's conduct to that ‘most minimal ofall cvilized standards.” Serving on a jury fr entering Into marrage also involve decisions faz more sophisticated than the simple decision not to take anoth- co fe, The Court's contention that the goals of retribution and detemrence ate not served by executing murderers ‘under 18 is also transparently false, The argument that "(] etribution is not proportional ifthe law's most severe pen- alty is imposed on one whose culpability or blameworthit- ness Js diminished,” is simply at extension of the earier, false generalization that youth ahways defeats culpability. ‘The Court claims that *juveniles will be less susceptible to deterrence," ante, at 18, because [she likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of exe- caution is so remote as to be Virtually nonexistent.” The Court unsurprisingly finds no support fortis astounding proposition, save it own case law. The facts ofthis very case show the proposition to be false. Before committing the crime, Simmons encouraged his friends to join him by assuring them that they could “get away with it” because they were minors This fact may have influenced the jury's decision to impose capital punishment despite Simimons’ age, Because the Court refuses to entertain the possibility that Its own unsubstantiated generalization about juve- niles could be wrong, it ignores this evidence entirely, “Though the vlews of our own citizens are essentially Irel- ‘evant 10 the Court's decision today, the views of other countries and the so-called international community take center stage "The Couct begins by sioting that “Article 37 of the United Nations Convention on the Rights of the Child, entered into force Sept. 2, 1990, which every country in the world has ratified save for the United States and Somalla, ‘contains an express prohibition on capital punishment for ‘rlmes committed by juveniles under 18." ‘Unless the Court has added to its arsenal the power to join and ratify treaties on behalf ofthe United States, I cannot see how this evidence favors, rather than refutes, ts position, That the Senate and the President—those actors ‘our Constitution empowers to enter into treaties, see Art. 1, §2 have declined to join and ratify treaties prohibiting execution of under-18 offenders can only suggest that our courtry has either not reached a national consensus on the | ‘question, or has ceached a consensus contrary to what the ‘Court announces ‘More fundamentally, however, the basic premise of the Court's argument—that American Jaw should conform to the laws of the rest of the wold ought to be rejected out of hand, In fact the Court itself does not belleve it. In ‘any significant respects the laws of most other countries biffer from our lay-—including not only such explicit pro- visions of our Constitution as the right to jury teal and grand jury indictment, but even many interpretations fof the Constitution preseribed by this Court itself. The Coust pronounced exclusionary rule, for example, Is dis- tinctively Amezican, ‘The Court has been oblivious to the views of other ‘countries when deciding how to interpret our Constitu- tion's requirement that “Congress shall make no law respecting an establishment of religion...” ‘And let us not forget the Court's abortion furispru- dence, which makes us one of only six counties that allow abortion on demand until the point of viability. ‘The Court should either. profess its willingness to reconsider all these matters in light of the views of forelgn- es, or ese it should cease putting forth foreigners views as patt of the reasoned bass ofits decisions. To invoke allen law when it agrees with one’s own thinking, and ignore It ‘otherwise, is not reasoned decisionmaking, but sophistry.* ‘To add insult to injury, the Court affirms the Missouri Supreme Court without even admonishing that court for is flagrant disegard of our precedent in Stanford, Until today, we have alvrays held that “it ls this Cours preroga- tive alone to overrule one of its precedents”... Today, however, the Court sllently approves a state-court decision that blatantly ejected controlling precedent. (One must admit that the Missouri Supreme Court's action, and this Courts indulgent reaction, are, in a way, ‘understandable, Ina system based upon constitutional and statutory text democratically adopted, the concept of “law” ‘ordinarily signifies tat particular words have a fixed mean- ing. Such law does not change, and this Court's proncunce- ‘ment of it therefore remains authoritative until (confessing ‘our prior eror) we overrule. The Court has purported to ‘make of the Lighth Amendment, however, a mistor of the ‘passing and changing sentiment of American soctety regar ing penology. The lower coucts can look into that iar as well as we can; and what we saw 15 years ago Dears no neces- sary relationship to what they see today. Since they are not Jookdng atthe same text, tata different scene, why should fr earlier decision control thei Judgment? However sound philosophically, ths 1s no way t0 run legal system. We must disregard the new reality thet, to the extent our Eighth Amendment decisions constitute something more than a show of hands on the cursent Jus- tices’ carrent personal views about penology, they pucport to be nothing more than a snapshot of American public ‘pinion at a particular point in time (with the timeframes now shortened to a mete 15 years). We must treat these decisions just as though they represented real law, eal p seciptions democratically adopted by the American peo- ple, as conclusively (ather than sequentially) construed by this Court. Allowing lower courts to reinterpret the bighth Amendment whenever they decide enough time thas passed fora new snapshot leaves this Cout's decisions ‘without any force—especially since the “evolution” of our Eighth Amendment is no longer determined by objective cxiteria, To allow Lower courts to behave as we do, “updat- ing’ the Eighth Amendment as needed, destroys stability and makes our ease law an uncelable basis for the design- ing of laws by citizens and thelr representatives, and for action by pubic officals, The result will be to crown arbi- trariness with chacs.. Notes Le: See Alaska Stat. §47.12,030 (Lexis 2002); Haw. Rev, Stat. $571-22 (1999); Towa Code §232.45 (2008); Me. Rev. Stat. Ann., Tit, 15, §3101(4) (West 2003); Mass, Gen, Laws Ann. ch. 119, $74 (West 2003); Mich. Comp. Laws Ann. ‘$764.27 (West 2000); Minn. Stat. §2608.125 (2002};'. D. Cent. Code §27-20-34 (Lexis Supp. 2003); R. 1. Gen. Laws §14i-7 (Lexis 2002); Vt Stat. Ann, Tit. 33, $5516 (Lexis 2001); W. Va, (Code §49-5-10 (Lexis 2004); Wis. Stat. 938.18. (2003-2004); see also National Center for Juvenile Justice, Trying and Sentencing Juve- rlles as Adults: An Analysis of State Transfer and Blended Sentencing Laws i (Oct. 2003) ‘The Distzict of Columbia is the only jurisdic- tion without a death penalty that specifically ‘exempts under-18 offenders from its harshest HineHion—llfe impdsonment without parole See D.C. Code §22-2104 (West 2001). See Mass. Gen. Laws Ann. ch. 119, §74 (West 2003); N, D. Cent. Code §27-20-34 (Lexis Supp. 2003); W. Va. Code §49-S-10 (Lexis 2004), 1. See, eg Ennnd y. Fiorlda, 458 US. 782, 80% (1982) ([Wle have no reason to disagree with, th(e) judgment fof the state legislatures) for urposes of construing and applying the Eighth Amendment"); Coker %. Georgia, 433 US, S84, 597 (1977) (plurality opinion) ("(T]he legisia- tive rejection of capital punishment for rape stzongiy confirms our own judgment”). {. JUSTICE O'CONNOR agrees with our analysis that no national consensus exists here, ante, at 8-12 (dissenting opinion), She is nonethe- Tess prepared (like the majority) to override the judgment of America’s legislatures if it cont ies beer own assessment of “moral propor- tonality” ante, at 12. She dissents here only because it does not. The votes in today's case

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