Roper v. Simmons

ROPER, SUPERINTENDENT, POTOSI CORREC

TIONAL CENTER v. SIMMONS No. 03-633. October 2004 Decided March Argued Stevens, Court, which Kennedy, J., opinion delivered J., a concur- filed Stevens, JJ., joined. Breyer, Ginsburg, Souter, O’Connor, J., p. 587. J., post, joined, Ginsburg, in which ring opinion, opin- Scalia, J., dissenting filed a p. 587. opinion, post, dissenting filed a p. 607. Thomas, J., post, J., joined, Rehnquist, ion, C. which Missouri, argued Solicitor R. Layton, State James were Jeremiah the briefs him on With cause for petitioner. D. Hawke Stephen and General, Nixon, Attorney W. (Jay) General. Buchheim, Attorneys and Evan J Assistant With for respondent. the cause P. Waxman argued Seth Hern- and Ogden David W. were brief him on the Jennifer 1040.* Court, 541 U. S. of the don, appointment by State of Ala for was filed reversal curiae urging of amici * Abrief C. Alabama, Kevin New- of General Attorney Troy King, by et al. bama IV, Gen Solicitor Deputy Barnett General, Vernon and A som, Solicitor follows: States respective their Attorneys General eral, by and Oklahoma, Greg of Edmondson Drew Delaware, AW. of Brady M. Jane Kennedy delivered the of the Court. opinion Justice This address, case us to for the second time in a requires decade and half, whether it is under the permissible and Fourteenth Amendments to the Constitution of the United States to execute a offender juvenile who was older Abbott of Texas, Mark L. Utah, Jerry Kilgore W. of and of Shurtleff Virginia.

Briefs of amici curiae urging affirmance were filed for the State of New Spitzer, Attorney Eliot York, York et al. by Caitlin J. General of New Halligan, Smirlock, Daniel General, Solicitor Deputy General, Solicitor Jean Lin and Julie Loughran, Assistant Solicitors and General, by and Attorneys States as follows: Thomas J. respective General for their Curran, Jr., Miller of Iowa, Kansas, Joseph Phill Kline of J. Maryland, Mike Hatch A. Minnesota, Patricia Madrid Mexico, Hardy New Myers McGraw, Jr, of Oregon, and Darrell V of West Virginia; for the Archer, Sabrin, Bar Association Dennis W. American Amy R. by and Mat- Estes; thew W. S. for the American Psychological by Association et al. III, Brinkmann, Drew Days Blount, S. Beth S. Sherri N. Timothy C. Lambert, Nathalie F. P. Gilfoyle, and Lindsay Childress-Beatty; for the by Joseph D. Tydings; for the Constitution Coalition for Juvenile Justice Sloan; Laurie WebbDaniel Project by Virginia E. and for the Human Rights Committee of the Bar and Wales et al. Michael England by Bochenek, Audrey Anderson, Johnson, J. William H. and Thomas H. Rice; Speedy Levick, L. for the Marsha by Juvenile Law Center et al. Rosado, Drizin, Woodhouse, Lourdes M. Steven A Barbara Bennett Mi- Small, Kehne; chael Jeffrey C. P. and for the Missouri Ban Youth Execu- Joseph Luby; W. by tions Coalition for the NAACP Legal Defense and Shaw, Fund, Inc., Chachkin, TheodoreM. Educational Norman J. by et al. Gohara, Swarns, Miriam Christina A. Steven Shapiro, R. and Diann Y. Rust-Tierney; for the United States Conference of Catholic Bishops et al. Moses; Mark Chopko E. F. by Michael and for Former U. S. Diplomats Koh, Hongju Abramowitz et al. Harold Morton Donald Francis Dono- by van, Stephen Bright. B. Briefs of аmici curiae European were filed for the Union et al. Rich- by Wilson; ard J. for the American Medical T. et by Joseph Association al. Rosenkranz, McLaughlin, Clare; E. Joshua and Stephane M. for the Jus- Cutrer; tice for All Alliance Dan by for Murder Victims’ Families for Rec- Lowenstein; onciliation Kate by for the National Legal Aid and Defender Mello; Association Michael by Carter, Jr., and for President James Earl Geraghty. Thomas F. et al. capital younger a when he committed than 18

than 15 but (1989), Kentucky, a di- 492 U. S. 361 crime. In Stanford proposition rejected that the Constitution vided age juvenile in this capital punishment for offenders bars question. group. We reconsider high junior school, a he was still

I At the of when mur- respondent here, Christopher committed Simmons, the 18, he turned later, after he had nine months der. About doubt that is little There tried sentenced to death. was and its com- instigator Before the crime. was the Simmons In murder someone. said he wanted mission Simmons discussing plan, it his chilling, about callous terms he talked Benjamin and part friends, two Charles the most with respectively. aged Simmons Tessmer, then John and breaking and burglary and murder proposed to commit throwing off a victim entering, up tying victim, a and away “get they bridge. friends could his assured Simmons they were minors. with it” because night murder, of the

The three at about a.m. met (The State set out. two before the other but Tessmer left dropped conspiracy, but charged with later Tessmer Simmons.) testimony against exchange charge in for his victim, Shir- of the Benjamin the home entered and Simmons open un- through and ley reaching window an Crook, after hallway light. turned on a locking door. the back Simmons re- “Who’s there?” out, called Awakened, Mrs. Crook bedroom, where he sponse Crook’s entered Mrs. Simmons involving them previous accident car recognized from a her resolve his confirmed this later admitted both. Simmons her. to murder her and bind eyes mouth tape

Using to cover her duct minivan put in her perpetrators Mrs. Crook the two hands, bindings, They park. reinforced state to a drove a rail- her walked towel, and her head with covered spanning road trestle they the Meramec River. There tied together her hands and feet wrapped with electrical wire, her tape whole face in duct and her bridge, threw from the drowning her in the waters below.

By September the afternoon of 9, Steven Crook had re- overnight turned trip, home from an found his bedroom in disarray, reported missing. and his wife theOn same after- noon fishermen body recovered the victim’s from the river. Simmons, bragging meanwhile, was telling killing, about the he friends had killed a my woman “because the bitch seen face.” day,

The receiving next after information of Simmons’ police high involvement, arrested him at his school and took police him to the They station Fenton, Missouri. read him rights. his Miranda right Simmons waived his to an attorney agreed questions. and to answer After less than interrogation, two hours of Simmons confessed to the murder agreed perform and videotaped a reenactment at the crime scene. charged

The State burglary, kidnaping, Simmons with stealing, degree. and murder in the first As Simmons was 17 at the time of crime, he was juris- outside the criminal diction juvenile of Missouri’s system. court See Mo. Rev. §§211.021 2003). Stat. (Supp. and 211.031 He was tried as an adult. At trial the State introduced Simmons’ confession videotaped and the reenactment of crime, along testimony with that Simmons discussed the crime in bragged advance and about it later. The defense called no guilt witnesses in phase. jury having The returned a proceeded verdict of murder, the penalty phase. trial to the sought penalty. State the death aggravating As fac- tors, the State submitted that the murder was committed for purpose money; receiving pur- was committed for the pose avoiding, interfering preventing with, or lawful ar- rest of the depravity defendant; and involved and mind outrageously wantonly was and vile, horrible, and inhuman. daughter, two Shirley and husband, Crook’s called The State moving of the devastation presented evidence sisters, who brought their lives. had her death attorneys an officer first called mitigation Simmons’ system, Sim- justice who testified juvenile

the Missouri charges previous that no prior and had convictions mons no two mother, father, against Simmons’ him. filed had been neighbor, friend took younger brothers, a half they relationships had jurors of the close to tell the stand mercy his behalf. plead with Simmons formed responsibility to the particular, testified mother, Simmons’ younger two taking care of his demonstrated Simmons capacity to and to his grandmother of his half brothers and for them. love show prosecutor de- closing, arguments, both the

During judge age, the trial which Simmons’ counsel fense addressed mitigating as a jurors they could consider the had instructed juveniles jurors that the counsel reminded Defense factor. juries, or even see drink, serve age cannot of Simmons’ wisely de- legislatures have “the movies, because certain responsible age aren’t certain of a that individuals cided argued should that Simmons’ counsel enough.” Defense deciding just ex- jurors] [the huge “a difference make rebuttal, the punishment to make.” actly what sort says. “Age, he response: following gave the prosecutor scary? years Isn’t old. age. about Seventeen Think contrary I Mitigating? you? Quite that scare Doesn’t contrary.” Quite submit. finding penalty after jury the death recommended sub- factors aggravating proved three had each

State trial recommendation, jury’s Accepting to it. mitted penalty. imposed judge trial in the moved who counsel, new obtained

Simmons argu- One sentence. the conviction and set aside court assistance ineffective received had was that Simmons ment counsel new called contention, the support this To at trial. ' attorney, as witnesses trial Simmons’ Simmons’ friends and neighbors, psychologists and clinical who had evaluated him. “very

Part of the submission was that Simmons was imma- “very impulsive,” “very susceptible ture,” being ma- nipulated experts or influenced.” The testified about Sim- background including mons’ a difficult home environment and changes accompanied by dramatic poor behavior, school performance in adolescence. was Simmons absent from long periods, spending using home for drugs time alcoholand teenagers young with by other or adults. The contention postconviction Simmons’ counsel was that these matters should sentencing have been proceeding. established in the

The trial court found no constitutional violation reason of ineffective assistance of counsel and denied the motion for posteonviction appeal In a relief. consolidated from Sim mons’ post- sentence, conviction and and from the denial of Supreme conviction relief, the Missouri Court affirmed. (en banc), Simmons, State v. S. W. 2d cert. de (1997). nied, 522 U. S. 953 The federal courts denied Sim petition mons’ corpus. for a writ of habeas Simmons v. (CA8), Bowersox, 235 3d 1124, 1127 F. cert. denied, 534 U. S. (2001). proceedings After these in Simmons’ case had run their course, this Eighth' Court held that and Fourteenth prohibit Amendments mentally the execution of a retarded (2002). person. Virginia, Atkins v. 536 U. S. 304 Simmons petition filed a postconviction new for arguing state relief, the reasoning that of Atkins established that the Constitu- prohibits tion juvenile the execution of a who was under 18 when the crime was committed. Supreme

The agreed. Missouri State ex rel. Sim- (2003) (en banc). Roper, mons v. 112 S. W. 3d 397 It held that since Stanford,

“a developed against national consensus has the execu- juvenile tion by offenders, as demonstrated the fact eighteen juve- states now bar such executions for altogether, niles, that executions twelve other states bar age that no of execution below 18 state has lowered its by legislatively since five states have or Stanford, 18, minimum case law raised or established the juvenile imposition of has and that the truly become S. W. unusual over the last decade.” 3d, at 399. reasoning this it set aside death sentence and

On Simmons! eligibility imprisonment for resentenced him to without “life except by probation, parole, act of the Governor.” or release Id., at 413. (2004), granted and now

We S. 1160 certiorari, 540 U. affirm.

II provides: Eighth “Excessive bail shall The Amendment imposed, required, nor cruel and not be nor excessive fines applicable punishments provision is unusual The inflicted.” through Amendment. Fur the Fourteenth to the States curiam); (per Georgia, Rob 238, 239 man v. 408 S.U. (1962);Louisiana 660, 666-667 inson 370 U. S. California, v. (1947)(plural ex Francis Resweber, rel. v. U. S. explained Eighth ity opinion). Atkins, As the Court right guarаntees not to be sub Amendment individuals the right jected from the The flows to excessive sanctions. “ punishment ‘precept justice for crime should basic ” [the] S., graduated proportioned offense.’ 536 U. be and (quoting States, 217 U. S. at 311 United Weems (1910)). By protecting of heinous even those convicted duty of the Amendment reaffirms crimes, persons. respect dignity government of all punishments,” prohibition against “cruel and unusual Constitution, must be expansive language in the like other considering history, tra- interpreted according text, to its purpose regard its precedent, with due dition, and implement design. this To function in the constitutional propriety and affirmed have established we framework evolving of de- necessity referring standards to “the of society” maturing progress to deter- cency of a mark the that disproportionate to be punishments are so which mine Trop 86, 100-101 Dulles, v. 356 U. S. cruel and unusual. (1958)(plurality opinion). (1988), plurality Thompson a Oklahoma, 487 U. S. decency of do determined that our standards the Court

of age any of 16 under the permit of offender the execution (opinion of Ste- Id., at of the crime. 818-838 the time at JJ.). by joined Marshall, Blackmun, and Brennan, J., vens, penalty explained that no death State plurality opinion The age for minimum given express consideration to a that had age Id., than 16. penalty had set the lower death “[t]he plurality conclusion also observed 826-829. decency to execute civilized standards it offend that would years the time of his old at person than 16 who was less views that have been is consistent with or her offense by organizations, by other respected professional expressed heritage, Anglo-American nations that share our community.” European leading the Western members of juries imposed opinion noted that further Id., at 830. The exceeding rar- penalty under 16 with offenders the death a crime committed ity; of an offender for execution last years been carried out of 16 had under the prior. Id., at 832-833. permis- independent judgment on the

Bringing to bear its 15-year-old sibility penalty offender, the for a the death why juve- “[t]he Thompson plurality reasons stressed responsibilities privileges not trusted with the niles are why irresponsible conduct is explain their an adult also Id., at of an adult.” morally reprehensible as that not as culpability of of- According plurality, the lesser to the 835. inappropriate as a 16 made the fenders under that offenders the low likelihood retribution, while form analysis engaged cost-benefit in “the kind of under 562 any weight possibility execution” the to the of made

attaches penalty Id., at death ineffective as a means of deterrence. judg- concurring in the 836-838. With Justice O’Connor grounds, the set id., at Court ment on narrower 848-859, imposed on that had been the aside the death sentеnce 15- year-old offender. Kentucky, year, in 492 U. S. The next v. Stanford by

(1989), opinion joined dissenting four Court, over a the decency contemporary in Justices, referred to standards country Eighth and Fourteenth and concluded the this juvenile proscribe of- the execution Amendments did not 22 of noted that over 15 but under 18. The Court fenders penalty permitted for death the 37 death States the permit- 16-year-old among States, and, offenders, these 17-year-old numbers, in the These ted it offenders. “suf- no national consensus view, indicated there was Court’s particular punishment cruel and unusual.” ficient label “emphatically plurality also A of the Court Id., at 370-371. bring rejected]” suggestion its that the should Court juvenile acceptability judgment of the to bear on the own joined (opinion J., penalty. Id., at 377-378 Scalia, JJ.); see also J., and White and C. Kennedy, Rehnquist, concurring concurring part id., J., at 382 (O’Connor, judge (criticizing plurality’s judgment) refusal “to ‘ imposed punishment whether the “nexus between ’ proportional”). blameworthiness” the defendant’s day it held that the decided The same Stanford, exemption categorical mandate a did not Amendment Penry mentally penalty for the retarded. the death from (1989). reaching this conclusion Lynaugh, 492 U. S. 302 banning only laws had enacted two States it stressed that mentally retarded penalty on a imposition of the death Id., Accord- capital at 334. person of a offense. convicted prohibiting execu- ing two state statutes Court, “the to the mentally added retarded, even when tion of the completely, punishment capital rejected that have States present national of a provide [did] evidence sufficient Ibid. consensus.” subject in Atkins. ago reconsidered was

Three Terms Penry decency since have evolved held that standards We mentally of the re- the execution and now demonstrate noted punishment. The Court is cruel and unusual tarded expressed legis- society’s objective standards, indicia of respect to execu- practice with and state lative enactments mentally When Atkins was decided retarded. tions of the practice, in permitted the and even only minority of States a the 314-315. On S.,U. it was rare. 536 those States executing determined the basis of these indicia Court truly unusual, and mentally offenders “has become retarded developed say consensus has that a national it is fair against Id., at 316. it.” evolving society’s of de- inquiry standards

The into our repeated cency Atkins neither The Court did not end there. the upon in Court’s nor relied the statement Stanford acceptability bearing independent judgment no has Eighth Amendment. particular punishment under of a pre- rule, established in decisions to the we returned Instead contemplates dating Constitution that “‘the Stanford, brought to bear on the judgment bewill in the end our оwn penalty under the acceptability the death question of the (quoting S., at 312 Coker Eighth 536 U. Amendment.’” opinion)). (plurality Georgia, Men- 584, 597 433 U. S. culpabil- personal said, diminishes retardation, the Court tal wrong. distinguish right from ity can even if the offender mentally of- retarded impairments of The S., at 318. U. penalty impose death it defensible to less fenders make likely past that the death and less for crimes as retribution Id., at 319-320. effect. penalty have a real deterrent will finding of national on the considerations and on these Based mentally executing retarded, against consensus penalty an excessive constitutes the death ruled that mentally offend- category retarded entire sanction for the “ ers, ‘places and that the Amendment a substantive mentally power restriction on the State’s to take the life’of a (quoting Wainwright, retarded Id., offender.” at 321 Ford v. (1986)). U. S. Just as the Atkins Court reconsidered the issue decided Penry, we now reconsider the issue decided Stanford. beginning point objective is a review of indicia of con- expressed particular by sensus, as legis- the enactments of question. latures that have addressed the give These data us essential determine, instruction. We then must in the independent judgment, exercise of our own whether the penalty disproportionate punishment juveniles. death is a for

I—I J—l A against pen- The evidence of the death national consensus alty juveniles respects parallel, and in similar, some the evidence Atkins held sufficient to demonstrate national against penalty mentally consensus death for the re- prohibited decided, tarded. When Atkins was 30 States mentally for the retarded. com- This number prised penalty altogether, 12 that had abandoned the death mentally 18 that maintained it but excluded the retarded By from its 536 S., reach. U. at a similar 313-315. calcula- prohibit juvenile pen- in case, tion this 30 States the death alty, comprising rejected penalty 12that the death have alto- gether by express provision but, and 18 that maintain it or judicial interpretation, juveniles exclude from its reach. Appendix emphasized A, See Atkins that even in the infra. prohibition, practice 20 States without formal the of execut- ing mentally infrequent. Penry, retarded was Since only had five States executed known to have an IQ offenders present under atS., case, too, 70. 536 316. In the even U. prohibition executing in the 20 States without a formal juveniles, practice infrequent. Since six Stanford, ju- prisoners States have executed for crimes committed as years, only past have done so: Okla veniles. In the three Virginia. Streib, The homa, V. Juvenile Texas, and See Penalty Today: and Executions for Death Death Sentences January 1973-December 31, 2004, 76, Crimes, 1, No. Juvenile (2005), p. http://www.law.onu.edu/faculty/streib/ available at (last 31,2005) documents/JuvDeathDec2004.pdf updated Jan. (as and available in 25, 2005, visited Feb. Clerk Court’s file). Kentucky 2003 the de case December Governor spare Stanford, and his cided to the life of Kevin commuted imprisonment parole, with the sentence to one of life without “ ought executing people ‘[w]e who, declaration that be Lexington legally, Herald Leader, 9, were children.’” Dec. By p. act the 2003, B3, 2003 WL 65043346. this Governor Kentucky ensured would not add to the list of States itself years juveniles that have within the last 10 even executed very defendant whose death the execution of the sentence upheld Kentucky. in Court had Stanford is, sure, one difference between the There to be at least Impres- in and in this case. evidence of consensus Atkins penalty sive in was the rate of abolition the death Atkins permitted mentally for the retarded. Sixteen States that mentally Penry at the time of the execution of the retarded prohibited practice by the time we had heard Atkins. By reducing change rate of the incidence of contrast, the juvenile penalty, taking specificsteps or abol- juve- it, ish has been slower. Five that allowed the States have nile death at the time of abandoned Stanford intervening years through legislative en- it 15 —four supra, through judicial Streib, actments and one decision. at 5, 7; Furman, State v. 2d 858 P. 2d 1092 Wash. (en banc).

Though change Penry less than the At- dramatic from (“telling,” kins word Atkins used to describe borrow the 18), difference, S., this n. we still consider U. significant. change from to be As to this case Stanford respect Atkins, noted in with to the aban- States had 566

doned the death for the since penalty retarded mentally Penry, is not so “[i]t much the number of these States is but the of the direction of significant, consistency change.” 536 at S.,U. 315. we found it that, particular significant Penry, in the wake of no State had already prohibited of execution retarded had mentally passed legislation to reinstate S., 536 U. at num 315-316. penalty. ber of States that have abandoned for capital punishment offenders since juvenile than is smaller the number Stanford of States that abandoned for the capital punishment mentally Penry; retarded after we think the same of yet consistency Stanford, direction of has been demonstrated. Since change no State that for previously capital prohibited punishment has juveniles reinstated it. This fact, with coupled trend toward abolition of the death carries juvenile penalty, force in special of the of anticrime light general popularity supra, Atkins, legislation, 315, and in of the light particu lar trend recent toward down on years cracking juvenile crime in other Sickmund, see H. & M. Na respects, Snyder tional Center Justice, Juvenile Juvenile Offenders Victims: 1999 89, National 1999); & Report Scott (Sept. Grisso, The Evolution of Adolescence: A Per Developmental on Juvenile spective Reform, Justice 88 J. Crim. L. & C. this case and Atkins (1997). difference between Any with to the abolition thus counterbalanced respect pace the consistent by direction of the change.

The slower of abolition of death pace juvenile penalty over the have a moreover, past years, may simple explana- Penry, tion. When we two heard death States only penalty had of the the execution re- already prohibited mentally Stanford, contrast, tarded. When we heard States had the execution of already prohibited any under 15 had juvenile execution prohibited any under If 17. this shows that juvenile impro- anything, between 16 and priety executing juveniles years wide than exe- earlier the of gained recognition impropriety retarded. the words of the Missouri the mentally cuting the if “It would be ultimate in the Court: Supreme irony fact that the of the death for very inappropriateness penalty juveniles was sooner than it was broadly recognized recog- nized the for retarded were to become a reason to mentally the of continue execution now the execution of juveniles the 3d, retarded has been barred.” mentally S. W. 408, n. 10.

Petitioner cannot show national consensus in favor of capi- tal for but still resists the conclusion punishment juveniles consensus any exists Petitioner it. against supports with, this the position observation that when particular, the Senate ratified the International on Covenant Civil and Political (ICCPR), 19, 1966, 999 Rights Dec. U. N. T. S. 171 (entered into 23, force Mar. it did 1976), so to the subject 6(5) President’s reservation proposed Article of regarding which treaty, for prohibits capital punishment juveniles. Brief for Petitioner 27. This reservation at best provides faint for only support First, the res- petitioner’s argument. ervation was in 1992; then, since five States have passed abandoned Con- capital punishment juveniles. Second, gress considered the issue when the Death Federal enacting Act in and determined that the death Penalty penalty should not § extend to See 18 U. juveniles. S. C. 3591. The 6(5) reservation to Article of the ICCPR minimal provides evidence that there is not now national consensus against executions. juvenile Atkins,

As in indicia this objective consensus in case —the of the rejection death in the ma- juvenile penalty jority States; use its even where it re- infrequency mains on the books; and the trend toward consistency abolition sufficient evidence that practice provide — Atkins used our today society views the words juveniles, retarded, respecting cul- mentally less “categorically pable S., than the criminal.” 536 U. at 316. average

B A of the of States have majority rejected imposition under and we now offenders penalty ‍​‌​​‌‌‌​​‌​‌​‌​‌‌​‌​‌​​‌‌‌‌​‌​​​​​​​​‌​​‌​‌‌​​​​‍juvenile hold this is Amendmеnt. the Eighth required by the death is the severe punishment,

Because most force. to it with Amendment special applies Thompson, in S., J., 487 856 concurring U. at (O’Connor, must limited to those of be judgment). Capital punishment of the most serious fenders who commit “a narrow category makes them “the crimes” whose extreme and culpability supra, at Atkins, This most of 319. execution.” deserving is the sentencing throughout capital principle implemented to narrow and definition States must precise process. give a the result in sentence. factors that can capital aggravating Georgia, Godfrey (1980) 420, 446 428-429 (plurality v. U. S. In a has wide latitude case defendant opinion). any capital or of [his her] to as a factor raise mitigating “any aspect the of of or circumstances character record and any as for sentence fense that a basis defendant proffers Ohio, (1978) death.” Lockett v. 586, than U. S. 604 less 438 Eddings Oklahoma, 455 U. S. 104, v. (plurality opinion); Texas, 110—112 see also Johnson v. 509 U. 359-362 S. (1982); after Fur (1993) the Court’s (summarizing jurisprudence curiam), Georgia, (1972) (per man v. re with 408 S. 238 U. miti and consideration a sentencer’s aggravating spect factors). crimes that beyond There are a number of gating terms, the death penalty are in absolute severe question yet Georgia, their commission. Coker v. be imposed may woman); Enmund (1977) v. 433 of an adult U. S. 584 (rape Florida, defendant where 782 murder 458 S. (felony U. kill). The death kill, kill, or intend did not attempt offenders, on certain classes not be may imposed penalty re insane, and mentally such as under juveniles Thompson v. heinous crime. tarded, no matter how Wainwright, supra; Oklahoma, (1986); Ford S. 399 U. supra. Atkins, princi- the underlying These rules vindicate that the for a reserved narrow pie category of crimes and offenders.

Three differences between under and juveniles general adults demonstrate that offenders with cannot relia juvenile be classified the worst offenders. First, as bility among any knows and the scientific and studies parent sociological amici cite and his tend to confirm, lack of respondent “[a] and an sense of are maturity underdeveloped responsibility in in found more often than are adults and more under youth standable These often result among young. qualities John and impetuous ill-considered actions decisions.” supra, Eddings, son, supra, 367; see also at 115-116 (“Even the normal lacks matu 16-year-old customarily adult”). of an It has been noted that are rity “adolescents overrepresented statistically virtually every category reckless behavior.” Reckless Arnett, Behavior Adoles A cence: Rev. Developmental Perspective, Developmental (1992). of the recognition comparative immaturity of juveniles, almost State irresponsibility every prohibits those under 18 of from years voting, serving juries, or without marrying consent. See parental Appendixes B-D, infra.

The second of area difference is that are more juveniles vulnerable or susceptible negative to influences and outside Eddings, supra, pressures, including peer at 115 pressure. (“[Yjouth than is more a It fact. is a time and chronological condition life of when a be most to person may susceptible influence and to This is psychological damage”). explained circumstance part by that have prevailing juveniles less or control, less with control, over their own experience Scott, environment. See & Less Steinberg Rea- Guilty by son of Adolescence: Developmental Immaturity, Diminished and the Juvenile Death 58 Am. Responsibility, Penalty, Psy- (2003) (hereinafter Scott) 1009, 1014 & chologist Steinberg (“[A]s minors, lack the legal [juveniles] freedom adults have to a extricate themselves from criminogenic setting”).

The is of juve- third broad difference that the character a is well nile not as formed as that of an adult. The personal- of less See transitory, traits are more fixed. ity juveniles (1968). Erikson, Youth and Crisis E. generally Identity: a ju- conclusion that These differences render suspect any venile falls the worst offenders. susceptibility among means to behavior immature and irresponsible juveniles as “their conduct is not morally reprehensible irresponsible Thompson, supra, at 835 as that of adult.” (plurality an lack Their own vulnerability comparative opinion). their mean juveniles control over immediate surroundings be for to failing have a claim than adults to forgiven greater environment. See influences in their whole escape negative Stanford, (Brennan, J., The re- S., 492 U. at 395 dissenting). define their still identity ality struggle juveniles a is even heinous means it less conclude that supportable evidence of crime committed a irretrievably juvenile it From a would be character. moral standpoint depraved an of a minor with those of equate failings misguided a adult, a that minor's character exists possibility greater Indeed, reformed. relevance of deficiencies will be “[t]he from the fact that as a factor derives youth mitigating transient; are as individuals ma- qualities youth signature dominate recklessness ture, may impetuousness supra, Johnson, 368; see can subside.” younger years (“For teens, or anti- most [risky also & Scott Steinberg cease with maturity are behaviors fleeting; they social] small relatively settled. Only individual becomes identity or who risky illegal of adolescents experiment proportion behavior patterns activities entrenched problem develop adulthood”). that into persist Thompson, im- the recognized

In of the Court plurality to under with juveniles of these characteristics port respect Amendment the and relied on them to hold that 16, on juveniles death penalty the of the prohibited imposition S., We the below that U. 833-838. сonclude age. to all 18. same offenders under reasoning juvenile applies Once the diminished of is juveniles culpability recognized, it the is evident that the for penological justifications to them with lesser force than to adults. We penalty apply have held there are two distinct social served by purposes the death of “‘retribution and deterrence penalty: capital ” Atkins, crimes S., offenders.’ at 319 U. prospective (1976) v. S. Gregg Georgia, (quoting U. (joint Stewart, of opinion Powell, and As for ret JJ.)). Stevens, ribution, we Atkins in remarked the of culpability “[i]f murderer is to ex insufficient the most average justify treme sanction available to the lesser State, culpability of the retarded offender merit mentally does not surely form of S., retribution.” 536 U. at 319. The conclu same sions follow from the lesser of culpability juvenile viewed an fender. Whether as to the com attempt express an moral or as the balance munity’s outrage attempt right for the victim, the case for retribution is not as wrong with a minor as an with adult. Retribution is not strong if the law’s most severe is proportional penalty imposed one whose or diminished, blameworthiness to a culpability substantial reason degree, by youth immaturity.

As it deterrence, is unclear whether death penalty has a or even measurable deterrent effect on significant juve- niles, as counsel for at oral petitioner acknowledged argu- ment. Tr. of Oral In 48. we leave to Arg. general legisla- tures the assessment of the of various criminal efficacy see Harmelin schemes, 501 U. S. Michigan, J., 998-999 and concur- part concurring (Kennedy, Here, the absence of evidence ring judgment). however, deterrent effect is concern because same special characteristics render less than juveniles culpable as adults well that will be less suggest juveniles susceptible deterrence. observed particular, plurality Thompson, offender has likelihood that the teenage “[t]he made that attaches the kind cost-benefit any analysis is to the so remote to be execution weight possibility To S., the extent nonexistent.” 487 U. at 837. virtually effect, death deterrent have residual juvenile penalty might it is worth that of life imprisonment noting punishment sanction, is a severe without itself parole possibility for a particular young person. that nor deterrence neither retribution concluding pro- the death

vides justification penalty adequate imposing offenders, on we or overlook brutal cannot deny juvenile See crimes too offenders have committed. many juvenile Brief for Alabama et al. as Amici Curiae. Certainly can it be concede the we no means point, argued, although suf- a offender has a rare arise in which juvenile case might time demon- ficient and at the same maturity, psychological a of death. strates to merit sentence sufficient depravity, Indeed, is the of one contention this possibility linchpin amici. even and his assert pressed by They petitioner made we have about the truth of observations assuming nonethe- diminished jurors juveniles’ culpability general, re- to less should be allowed consider mitigating arguments cases to basis, on and in some lated a youth ease-by-case central feature of the déath if A justified. impose a assessment of the is penalty sentencing particular of- of the of the crime and the characteristics circumstances consider both The aggravat- fender. system designed circumstances, in every including youth, and mitigating ing individualized on own insistence case. Given this Court’s it is both arbitrary maintains consideration, petitioner impo- a rule barring to adopt categorical unnecessary offender under any years sition of the death penalty of age. and adult between juvenile differences disagree.

We allow- risk understood are too marked well offenders ing youthful person penalty despite to receive the death culpability. unacceptable insufficient An likelihood exists brutality that the any particular or cold-blooded nature overpower mitigating arguments crime would based youth juvenile as a course, matter of even where offend- objective immaturity, vulnerability, er’s and lack of true de- pravity require should a sentence less severe than In death. may youth against some cases a defendant’s even be counted very prosecutor case, him. this above, as we noted argued youth aggravating Simmons’ was rather than miti- gating. Supra, overreaching at 558. While this sort of by particular be could corrected a rule to ensure that the mitigating youth force of is not overlooked, that would not larger address our concerns. expert

It is psychologists difficult even to differentiate juvenile between the offender whose crime reflects unfortu- immaturity, yet juvenile nate transient and the rare offender irreparable corruption. whose crime reflects See Stein- berg difficulty & Scott As we it, 1014-1016. understand this forbidding psychiatrists diagnosing underlies the rule from any patient having personality under 18 as antisocial dis- psychopathy sociopa- a order, disorder referred also to as or thy, and which is cynicism, characterized callousness, contempt feelings, rights, suffering for the of others. Psychiatric American Diagnostic Association, and Statistical (4th 2000); Manual of Mental Disorders 701-706 ed. text rev. Steinberg psychiatrists see also & Scott If 1015. trained advantage testing with the of clinical and observation re- despite diagnostic expertise, assessing any juve- frain, from having personality nile under 18 as antisоcial we disorder, asking jurors conclude that States should refrain from graver juvenile a issue far. condemnation—that a offender penalty. juvenile merits the death When a offender com- crime, mits a heinous the State can exact forfeiture of some of the liberties, most basic but the State cannot extinguish his life and to attain a of understanding his mature potential his own humanity. course, the line at of years subject,

Drawing age rules. The raised the objections always against categorical adults not from do disap- distinguish juveniles qualities token, the same some when an individual turns 18. pear By some a under 18 attained level have already maturity discussed, reach. For reasons we adults will never have The however, opinion line be drawn. plurality must In the Thompson years drew the line at 16. intervening under 16 may Thompson plurality’s conclusion that offenders be The executed has not been logic challenged. are extends those who under 18. Thompson is the draws the line for pur- where society many point conclude, is, It we between childhood and adulthood. poses rest. the at which the line for death to eligibility ought should Kentucky mean These considerations Stanford issue. To the extent deemed no on this be longer controlling of con was of the indicia based review objective Stanford it 1989, 492 S., 370-371, at suffices sensus that U. obtained at note 564-567. Supra, to that those indicia have changed. furthermore, that the observed, It should be Stanford that had abandoned should have those States considered of the consensus against as death part penalty altogether deci 2;n. a State’s S., 492 U. at juvenile death penalty, demon necessity to bar the death altogether sion penalty is the death inappropriate strates a that penalty judgment the extent Last, offenders, all juveniles. for including that this Court of the idea was based on rejection Stanford on the bear its is independent judgment required bring class of for a of the death particular penalty proportionality it suf id., offenders, at 377-378 opinion), crimes or (plurality with prior was inconsistent this fices to note rejection S., at 833- 487 U. decisions, Thompson, Amendment Eighth Enmund, 797; Coker, S., at U. (plurality opinion); S., It is also with U. at 597 inconsistent (plurality opinion). in Atkins. 536 U. S., of our recent at decision premises 312-313, 317-321. that the death cannot be holding imposed upon we take into account offenders, circumstance

juvenile that some have States relied on seeking Stanford death offenders. This considera- juvenile penalty against our conclusion that Stan- tion, however, does outweigh no should control in those few cases or longer pending ford in those to arise. yet

IV Our determination that the death penalty disproportion- ate for offenders under 18 finds confirmation in punishment the stark is the United States reality only country in the world that continues to official sanction to the give juvenile This does not con- penalty. become reality for the task of Amendment trolling, Eighth interpreting remains our Yet at least from the time of the responsibility. Trop, Court’s decision in the Court has referred to the laws and to other countries international authorities as instruc- tive for its of the Amendment’s interpretation prohi- bition of “cruel and unusual S., 356 U. at punishments.” (“The 102-103 civilized nations of the (plurality opinion) world are virtual that statelessness is not to be unanimity supra, Atkins, see crime”); also imposed punishment n. 21 “within the world (recognizing community, of the the death for crimes committed imposition penalty retarded is offenders by mentally overwhelmingly disap- supra, Thompson, 830-831, at and n. 31 proved”); (plurality the abolition the death opinion) (noting juvenile other nations that share our “by Anglo-American heritage, and members of the Western com- by leading European munity,” have observing previously recog- “[w]e nized the relevance of the views of the international commu- 576

nity determining punishment in un whether is cruel and usual”); supra, (observing Enmund, 22 796-797, at n. Eng felony

“the doctrine of murder has been abolished in severely India, land restricted Canada and a number and. countries, of other unknown in conti and is Commonwealth (plurality opin supra, Europe”); 596, nental ion) (“It at n. Coker, major nations irrelevant here out of 60 ... not only surveyed pen 1965, in the world death retained ensue”). alty rape for where did emphasize, respondent Article As and a number amici Rights 37 of on the of the the United Nations Convention every country for Child, which in the world has ratified save express prohibi an Somalia, United contains States by juveniles capital punishment tion on for crimes committed Rights under 18. United Nations Convention 3, 28 Child, 37, 1989, 1577 U. N. T. S. I. L. M. 20, Art. Nov. (entered 1990); Sept. 1448, for 2, into force Brief 1468-1470 Respondent European et 48; Brief al. as Amici for Union Jr., Earl Carter, Brief for President James 12-13; Curiae Diplomats al. as Brief for Former S. 9; et Amici Curiae U. 7; for Morton et al. as Amici Curiae Brief Abramowitz England Rights Bar of and Wales Human Committee of the country ratifying et al. as No has en Amici Curiae 13-14. provision prohibiting the execu tered a reservation juvenile prohibitions con are tion of offenders. Parallel significant tained other international covenants. See 6(5), (prohibiting capital S., at 175 ICCPR, U. N. T. Art. offense) anyone punishment time under 18 at the subject (signed a reser States and ratified United 567); 6(5), supra, Amer regarding noted, Article vation Rights: José, of San Costa ican on Human Pact Convention (entered 4(5), T. 1969, U. N. S. Rica, Art. Nov. 1978) (same); on the July Charter into African force 5(3), Rights Doc. CAB/ Child, of the Art. OAU and Welfare (same). (entered 29, 1999) force into Nov. LEG/ 24.9/49

577 his amici have submitted, and petitioner and Respondent other than the countries contest, seven does not only 1990: offеnders since have executed States juvenile United the Demo- Arabia, Yemen, Pakistan, Nigeria, Saudi Iran, then each of and China. Since cratic of Congo, Republic capital has either abolished punishment these countries Brief for disavowal of the practice. made or juveniles public sum, is fair to that the United 49-50. it say Respondent has its face in a world that turned now stands alone States death penalty. against juvenile covenants juve- the international prohibiting

Though instructive date, more recent it is death are of nile penalty death abolished the juvenile to note that the Kingdom United The into covenants came before these being. penalty relevance bears particular United experience Kingdom’s and between our countries here in of the historic ties light own Amendment’s origins. light in the on a Eng- modeled provision Amendment was parallel 1689, which “[Exces- provided: lish Declaration Rights Fines im- nor excessive not to be required sive Bail ought inflicted.” 1 W. & cruel and unusual Punishments nor posed; (1770); 441 also see M., 10,§ in 3 Stat. 2, Large ch. Eng. Trop, supra, now, As at 100 opinion). (plurality in its en- abolished the death penalty United has Kingdom it decades it took this step, recognized before but, tirety; it death nature of the penalty; juvenile disproportionate of- In 1930 an matter. abolished that separate for exe- the minimum ficial committee recommended from the House of Commons Report cution be raised to 21. 193, 44. (1930), Punishment p. Select Committee Capital Person’s enacted the Children Young Parliament then which execution 5, 12, ch. 1933, Act of prevented Geo. 1948, And in of the sentence. at the date of those aged Act, & Geo. enacted the Criminal Justice Parliament 18 at under execution of any person ch. prohibiting that have In the 56 passed the time of the offense. years Kingdom juvenile pen- since the United abolished the alty, weight authority against in inter- there, the and the it community, well national has become established. proper acknowledge overwhelming

It is the we weight juvenile opinion against the death of international penalty, resting understanding part large in the the on young may instability people and imbalance emotional Rights for Human often be a factor the crime. See Brief England of the Bar of et al. as Amici Committee and Wales community, opinion Curiae 10-11. The of the world while controlling provide respected sig- our and outcome, does confirmation own nificant for our conclusions. generation next,

Over from the time, one Constitu- respect high as even, tion to earn and has come Madison hope, people. dared veneration of the American See (C. 1961). p. 314 ed. The The Federalist No. Rossiter principles upon, document sets and rests innovаtive forth, original experience, federalism; to the American such proven through separation political balance mechanisms powers; specific guarantees cases; for the criminal accused pre- provisions freedom and broad to secure individual guarantees dignity.. are serve doctrines and human These experience essential to central and remain American identity. present-day Not our and national self-definition Constitution, then, honor the least of the reasons we our it own. It does not lessen because we know to be our origins fidelity pride to ac- or our in its to the Constitution express fundamen- knowledge certain that the affirmation of peoples simply rights by underscores other tal nations heritage rights centrality own within our those same of freedom.

[*] ^{[*] [*]} imposi- forbid Amendments The and Fourteenth who were under offenders tion of the death judgment their were committed. of when crimes aside the sentence of of the Missouri setting Supreme is affirmed. Simmons upon Christopher imposed

It is so ordered. A THE APPENDIX TO OPINION OF COURT DEATH I. THAT PERMIT THE IMPOSITION OP THE STATES PENALTY ON JUVENILES (West 2004) (no 13A-6-2(c) § express mini- Alabama Ala. Code age) mum (West 2004) §13-703(A) Supp. Ariz. Stat. Ann.

Arizona Rev. (same) (Michie 1997) (same) § Ark. Ann. 5-4-615

Arkansas Code 1995) (Lexis (same) Ann., Tit. 11 Delaware Del. Code §985.225(1) (2003) (same) Florida Fla. Stat. (Lexis 2004) (same) § Ga. Code Ann. 17-9-3

Georgia (Michie 2004) (same) § Idaho Idaho 18-4004 Code 640.040(1)(Lexis 1999) (minimum § Ky. Ann. Kentucky Rev. Stat. 16) age of 14:30(0 (West 2005) (no §Ann. Supp. express

Louisiana La. Stat. minimum age) (Lexis 2000) (same) § Code Ann. 97-3-21

Mississippi Miss. (minimum (2000) §565.020 age Missouri Ann. Mo. Rev. Stat. 16) (2003) (minimum 16) § Nev. Stat. age Nevada Rev. 176.025 (West 1996) (minimum §630:1(V) Hampshire New N. H. Rev. Ann. Stat. 17) age of 2003) (minimum (Lexis § Carolina N. C. 14-17 age North Gen. Stat. 17 except that those under who commit murder prison previous while sentence for a murder serving death may penalty) receive the (West 2002) (no Ann., 21, §701.10 ex- Oklahoma Okla. Stat. Tit. press age) minimum (2002) (same) § Pa. Stat. 1102

Pennsylvania Cons. (West § Supp. S. Ann. 16-3-20 2004 and main South Carolina C. Code ed.) (same) (West 2004-2005) 8.07(c) § Supp. Code Ann.

Texas Tex. Penal 17) (minimum age of (no 76-3-206(1) (Lexis 2003) § express Ann. Utah Utah Code minimum age) 18.2-10(a) (Lexis 2004) (minimum §

Virginia Va. Code Ann. age 16) THAT II. STATES PENALTY, RETAIN THE DEATH BUT SET AT

THE AGE MINIMUM (West 1999) §190.5 California Cal. Penal Code Ann. 1.4—102()(a) (Lexis 2004) § Colo.

Colorado Rev. Stat. 18 — §53a-46a(h) (2005) Connecticut Conn. Gen. Stat. 2003) (b) (West 720, § Ill. Stat.,

Illinois Comp. Supp. ch. 5/9-1 (2004) §35-50-2-3 Ind. Indiana Ann. Code (1995) §21-4622 Kan. Kansas Ann. Stat. (Lexis 2002) 2-202(b)(2)(i)

Maryland § Md. Crim. Law Code Ann. (2003) §45-5-102 Montana Mont. Code Ann. §28-105.01(1) 2004) Neb. Nebraska Rev. (Supp. Stat. (West 2003) § N. J. Jersey New Stat. Ann. 3(g) Supp. 2C:11 — §31-18-14(A) (2000)

New Mexico N. M. Stat. Ann. (West 2004) § New York N. Y. Penal Law Ann. 125.27 2003) 2929.02(A) (Lexis § Ohio Ohio Rev. Ann. Code 137.707(2)(2003) Oregon 161.620, §§ Ore. Rev. Stat. (West 2004) §23A-27A-42

South D. Dakota S. Codified Laws 37-1-134(a)(1) (1996) § Tennessee Tenn. Code Ann.

Washington by judicial Minimum of ‍​‌​​‌‌‌​​‌​‌​‌​‌‌​‌​‌​​‌‌‌‌​‌​​​​​​​​‌​​‌​‌‌​​​​‍18 established decision. Furman,

State 858 P. 2d 1092 Wash. 2d 2—101(b)(Lexis 2004) Wyo. Wyoming §6 Stat. Supp. — ¤ ^{[*] [*]} During past year, New highest of Kansas and decisions courts State York invalidated provisions in those States’ statutes. Marsh, 520, (2004) provision v. 278 Kan. 102 P. 3d 445 (invalidating if required imposition penalty aggravating mitigating the death LaValle, People balance); equal were found to 3 circumstances be (2004) 88, (invalidating mandatory N. E. requirement N. Y. 3d 817 2d 341 that, jury jury appropriate to instruct in the deadlock as to the case case, a sentence of life capital sentence a the defendant would receive parole serving with after a minimum of 20 to 25 imprisonment eligibility decisions, years). appear Due to these would States it these books, might it practical remains on the but that as matter deci- imposed anyone change not be is a course in these until there sions, remedy problems the respective legislatures or until the state 3d, Marsh, 524-526, 544-546, at supra, identified. 102 P. courts at have 464; LaValle, 2d, supra, 99, at 344. 817 N. E.

581 THE DEATH PENALTY III. STATES WITHOUT Alaska

Hawaii

Iowa

Maine

Massachusetts

Michigan

Minnesota

North Dakota

Rhode Island

Vermont Virginia

West

Wisconsin B

APPENDIX THE TO OPINION OF COURT A TO VOTE STATE STATUTES ESTABLISHING MINIMUM AGE STATUTE STATE AGE Const., Alabama 18 Ala. Arndt. No. 579 Const., V, §1; §15- Alaska Art. Alaska 18 Alaska Stat. (Lexis 2004) 05.010 §2; Const., VII, §

Arizona Ariz. 16- 18 Art. Ariz. Rev. Stat. (West 2001) 101 (Lexis 2002) §9-25-101

Arkansas Ark. 18 Code Ann. 2, §2 Const., California 18 Cal. Art. (Lexis 2004) § Colorado 18 Colo. Rev. Stat. 1-2-101 Const., 6, 1;§ § Connecticut 18 Conn. Art. Gen. 9-12 Conn. Stat. (2005) (Michie Ann., 15, §1701 Delaware Del. Code Supp. 18 Tit. 2004) 2004) 1-1001.02(2)(B) (West § 18 D. C. Supp. District Code Columbia (2003)

Florida 18 Fla. Stat. ch. 97.041 Const., 2, 1, 2; § Georgia § ¶ Ga. Art. Ga. Code Ann. 21- (Lexis 2003) 2-216 Const., II, 1; § § Hawaii Haw. Art. Haw. Rev. 11-12 Stat. (1995) (Michie 2001) §34-402 Idaho Idaho Code 1; Const., III, Stat., § Comp. Illinois Ill. Art. Ill. ch. (West 2002) §5/3-1 (2004) §3-7-13-1 Indiana Ind. Ann. Code §48A.5 Iowa Iowa Code 582 Const., 5, §

Kansas 18 Kan. Art. 1 Kentucky §145 Ky. 18 Const. Const., I, §10;

Louisiana 18 La. Art. La. Rev. Ann. Stat. (West 2004) § 18:101 (West Const., II, 2004); Maine § 18 Me. Art. 1 Supp. Me. (West Ann., 21-A, §§111, Rev. Stat. Tit. 111-A 2004) Supp. 1998 and (Lexis 2002) §3-102 Maryland 18 Law Ann. Md. Elec. Code (West Ann., 51, § 18 Gen. Laws 1 Supp. Massachusetts Mass. ch. 2005) (West 1989)

Michigan §168.492 Comp. 18 Laws Ann. Mich. (2004) 201.014(1)(a) § 18 Minn. Minnesota Stat. Const., 12, § Mississippi 18 Miss. Art. 241 Const., VIII, §2 Missouri 18 Mo. Art. Const., §2; IV,

Montana 18 Mont. Mont. Art. Code Ann. (2003) §13-1-111 Const., § VI, 1;§

Nebraska 18 Neb. Art. Neb. Rev. Stat. 32- (2004) 110 (2003) § Nevada 18 Nev. Rev. Stat. 293.485 Const., New 18 Pt. N. H. Art. 11 Hampshire Const., II, 1,§

New Jersey 18 N. J. Art. ¶ 3 Const., New Mexico 18 U. S. provision [no other than Arndt. XXVI] (cid:127) (West 1998) §5-102 New York 18 N.Y. Elec. Law Ann. (Lexis 2003) § North 18 N. C. Gen. Stat. Ann. 163-55 Carolina Const., II, §

North 18 N. D. Art. 1 Dakota V, §1; Const., Ohio Rev. Ann. 18 Art. Ohio Code Ohio (Anderson 1996) §3503.01 Const., Ill, § Oklahoma 18 Art. 1 Okla. Const., II, § Oregon 18 Art. 2 Ore. (1994) §2811

Pennsylvania 18 Pa. Stat. Ann. 25 Cons. 2003) (Lexis § Rhode Island 18 R. I. Gen. Laws 17-1-3 (West 2004) §7-5-610 Supp. South 18 Ann. S. C. Code Carolina Const., VII, §2; Art. S. D. Laws South 18 D. Codified Dakota S. 2004) (West §12-3-1 Ann. §2-2-102

Tennessee Code Ann. Tenn. (West 2003) § 11.002 Texas Tex. Elec. Code Ann. §2; Const., IV, Utah Ann. Utah Art. Code Utah (Lexis 2003) §20A-2-101 (Lexis 2002) Ann., 17, §2121 Tit. Vermont Vt. Stat. II, Const., § Art. 1

Virginia 18 Va. Const., §VI, 1

Washington 18 Wash. Art. (Lexis 2002) §3-1-3 W. Virginia West 18 Va. Code (West 1; Const., III, § §6.02 Wis. Wisconsin 18 Wis. Art. Stat. 2004) (Lexis §§22-1-102, Ann. 22-3-102

Wyoming Wyo. 18 Stat. 2004) Supp. Twenty-Sixth to the of the United States Amendment Constitution States, eighteen of citizens of the United who are

provides right “[t]he older, vote shall not be or the United years abridged or denied by any States or State on of age.” account

APPENDIX THE C TO OPINION OF COURT A STATE STATUTES ESTABLISHING MINIMUM AGE FOR SERVICE JURY STATE. AGE STATUTE 12-16-60(a)(1) (West 1995) §

Alabama 19 Ala. Code (Lexis 2004) 09.20.010(a)(3) § Alaska 18 Alaska Stat. 21-301(D) (West 2002) § Arizona 18 Ariz. Rev. Stat. (Lexis 16-31-101, 16-32-302 §§ Arkansas 18 Ark. Code Ann. 2003) Supp. (West 2005) 203(a)(2) § Supp. California 18 Cal. Civ. Proc. 13-71-105(2)(a) (Lexis 2004) § Stat. Colorado 18 Colo. Rev. §51-217(a) (2005) Connecticut 18 Conn. Gen. Stat. (Michie 4509(b)(2) Ann., § Delaware 18 Del. Code Tit. 1999) U-1906(b)(1)(C) 2001) (West §

District of 18 D. C. Code Columbia (2003) §40.01

Florida 18 Fla. Stat. (Lexis §§15-12-60, Ga. Code Ann. 15-12-163 Georgia 18 2001) 612-4(a)(1) 2004) § (Supp. Hawaii 18 Haw. Rev. Stat. §2-209(2)(a) (Michie 2004) Idaho 18 Idaho Code (West 2002) Stat., 705, §305/2 Comp. Illinois ch. 18 Ill. (2004) § Indiana Ind. 18 Code 33-28-4-8 607A.4(1)(a) (2003) § Iowa 18 Iowa Code § (jurors Kansas 18 Kan. Ann. 43-156 must be Stat. electors); Const., 5, § qualified to be Kan. Art. 1 elector) (person qualified must be 18 to be 584 (Lexis 29A.080(2)(a) § Supp.

Kentucky Ky. 18 Rev. Stat. Ann. 2004) 401(A)(2) Ann., Louisiana 18 La. Crim. Proc. Art. Code (West 2003) (West 1980) Ann., § Maine 18 Me. Rev. Tit. 1211 Stat. (Lexis Maryland § Cts. Code Ann. Md. & Jud. Proc. 8-104 2002) 2000) (West Ann., 234, § ch.

Massachusetts Mass. Gen. Laws vote); 51, §1 be (jurors qualified ch. must vote) 2005) (West bе (person must Supp. (West 600.1307a(1)(a) § Michigan Comp. Ann. Mich. Laws 2004) Supp. (2004) 808(b)(2) 18 Minn. Dist. Ct. Rule Minnesota (Lexis 2002) § 21 13-5-1 Mississippi Miss. Code Ann. §494.425(1) (2000)

Missouri 21 Mo. Rev. Stat. (2003) §3-15-301 18 Ann. Montana Mont. Code 2004) § (Supp. Nebraska 19 Neb. Rev. Stat. 25-1601 (2003) §6.010 (juror Nevada must be 18 Nev. Rev. Stat. elector); be §293.485 18 qualified (person must vote) (Lexis 500-A:7-a(I) § New 18 H. Ann. N. Rev. Stat. 2004) Hampshire Supp. (West §2B:20-1(a)

New J. Ann. 2004 Jersey 18 N. Stat. Pamphlet) (1998) §38-5-1

New 18 N. M. Ann. Mexico Stat. 510(2) (West 2003) § New York 18 N. Y. Jud. Law Ann. 2003) (Lexis §9-3 North C. Gen. Stat. Ann. 18 N. Carolina (Lexis §27-09.1-08(2)(b) North Dakota D. Code 18 N. Cent. 2003) Supp. 2001) (Anderson § Ohio Code Ann. 2313.42 18 Ohio Rev. (West 2005) 38, § Ann., Supp. Tit. 28 Oklahoma 18 Okla. Stat. §9-9-l.l(a)(2) (Lexis Supp, I. Laws Rhode 18 R. Gen. Island 2005) 2004) (West §14-7-130 . Supp. Ann.

South 18 S. C. Code Carolina (2004) § 16-13-10 D. Laws South Dakota 18 S. Codified (1994) §22-1-101 Ann. 18 Tenn. Code Tennessee 1998) 62.102(1) (West § 18 Tex. Govt. Code Ann. Texas (Lexis 2002) 78-46-7(1)(b) § Code Ann. Utah 18 Utah (Lexis 1999) 962(a)(1) Ann., §4, Vt. Stat. Tit. Vermont 18 majority); must have attained (jurors 18) 2003) (Lexis (age majority § Tit. 173

585 2000) (Lexis §8.01-337 Virginia 18 Va. Ann. Code 2004) (West §2.36.070 18 Washington Wash. Code Ann. Rev. 52-l-8(b)(l) (Lexis 2000) § 18 Virginia West W. Va. Code (West 2001) §756.02 Wisconsin 18 Wis. Stat. (Lexis 2003) §

Wyoming Wyo. (jurors 18 Ann. 1-11-101 Stat. adults); § must (person be 14-1-101 becomes an 18) adult APPENDIX D TO OPINION OF THE COURT STATE STATUTES A ESTABLISHING MINIMUM AGE FOR MAR-

RIAGE WITHOUT OR PARENTAL JUDICIAL CONSENT STATE STATUTE AGE (West 2004) §30-1-5 Alabama 18 Ala. Code Supp. (Lexis 2004) §§25.05.011,25.05.171 Alaska 18 Alaska Stat. (West §25-102 Arizona 18 Ariz. Stat. Supp. Rev. Ann. 2004) (Lexis §§9-11-102, Arkansas 18 Ark. Code Ann. 9-11-208 2002) 2004) (West §301

California 18 Cal. Code Ann. Fam. (Lexis 2004) §14-2-106 Colorado 18 Cólo. Rev. Stat. Ann. (2005) §46b-30 18 Connecticut Conn. Gen. Stat. (Lexis 1999) Ann., 13, §

Delaware Del. Code Tit. (West 2001) §46-411 District of D. C. Code Columbia §§741.04, Florida Fla. Stat. 741.0405 (Lexis 2004) §§

Georgia Ga. 19-3-2,19-3-37 Code Ann. (those under 18 must obtain parental consent applicant ap- unless female is or both pregnant child, plicants parents living are of a which age marry case minimum consent is without 16) (1993) § Hawaii 18 Haw. Rev. Stat. 572-2 (Michie 1996) §32-202 Idaho 18 Idaho Code (West 2002) Stat., 750, §5/203 Illinois 18 Comp. Ill. ch. §§31-11-1-4,31-11-1-5, Indiana 18 Ann. Ind. Code 31-11- (2004) 2-1, 31-11-2-3 (2003) §595.2 Iowa 18 Iowa Code 2003) §23-106 18 Kansas Kan. (Supp. Stat. Ann. (Lexis §§402.020, 18 Ann. Kentucky Ky. Rev. Stat. 402.210 1999) Ann., Louisiana 18 La. Children’s Code Arts. 1547 (West (minors 2004) may marry without (West consent); Ann., La. Civ. Code Art. 29 18) 1999) (age majority (West Ann., 19-A, § Maine Stat. 18 Me. Rev. Tit. 652 1998 2004) Supp. (Lexis 2004) § Maryland Law Ann. 16 Md. Fam. Code 2-301 (those under must obtain consent parental 18 applicant proof unless female can present child, or a in which case pregnancy minimum 16) marry without consent is Ann., §§7, 24, Massachusetts 18 Mass. Gen. ch. 25 Laws (West 1998) (West 2005) §551.103 Michigan Comp. 18 Mich. Ann. Laws (2004) § 18 Minnesota Minn. Stat. 517.02 (Lexis (female 2004) § Mississippi 15/17 Miss. Code Ann. 93-1-5 15; must be male must be applicants applicants 17) (2000) §

Missouri 18 Mo. Rev. Stat. 451.090 (2003) §§40-1-202, Montana 18 Code 40-1-213 Mont. Ann. (minors (2004) §42-105 Nebraska 19 Neb. Rev. Stat. must (de- § parental marry); have consent to 43-2101 19) “minor” fining person as a under (2003) § Nevada 18 Rev. Stat. 122.020 Nev. 1992) (West § New 18 H.N. Rev. Stat. Ann. 457:5 Hampshire (West 2002) Jersey §

New 18 N. Stat. Ann. J. 37:1-6 (1999) §40-1-6 New Mexico 18 N. M. Stat. Ann. (West §15 Ann. Supp. New York 18 Y. Dom. Law N. Rel. 2005) 2003) (Lexis §51-2

North 18 N. Gen. Stat. Ann. C. Carolina (Lexis 2004) § North Dakota 18 14-03-02 N. D. Cent. Code (2003) §3101.01 Code Ohio 18 Ohio Rev. Ann. 2005) (West 43, §3 Ann., Supp. Oklahoma 18 Stat. Tit. Oída. (2003) § Oregon Stat. 18 Ore. Rev. 106.060 (1997) § Pennsylvania 18 23 Pa. Cons. Stat. 1304 2004) § (Supp. Rhode Island R. I. Gen. Laws 15-2-11 (West 2004) Supp. §20-1-250 South S. Code Ann. C. Carolina 2004) (West § South Dakota S. Codified Laws 25-1-9 D. § Tennessee Tenn. Code Ann. 36-3-106 1998) (West §§2.101-2.103 Fam. Code Ann. Texas Tex. (Lexis 2004) § Supp. 18 Code Ann. 30-1-9 Utah Utah 2000) (Lexis Ann., 18, §5142 Tit. Vermont Vt. Stat. (Lexis 20-48, §§20-45.1, Va. Virginia Code Ann. 20-49 2004) (West 2005) §26.04.210 Code

Washington Wash. Rev. Ann. (Lexis 2004) §48-2-301 West 18 W. Virginia Va. Code (2001) §765.02 Wisconsin 18 Wis. Stat. 2003) (Lexis § 18 Wyo. Ann.

Wyoming Stat. 20-1-102 Ginsburg Stevens, Justice with Justice whom joins, concurring.

Perhaps important holding specific even more than our today principle is our reaffirmation of the basic that informs interpretation the Court’s of the If Amendment.

meaning of that Amendment had been it frozen when was originally impose drafted, impediment it would no to the 7-year-old today. execution of children See Stanford Kentucky, (describing 492 U. S. the common adoption). law at of the Amendment’s time The evolv- ing decency of standards that have driven our construction critically important this part of the Rights Bill of foreclose any reading such of the Amendment. the best tradition pace of the law, common evolution is matter for continuing understanding but that debate; our of the Con- change stitution does from time to time been has settled great since John life If Marshall breathed into its law- text. yers day example Hamilton, his for sit- —Alexander —were ting today, expect join with us I would them to Justice Kennedy’s opinion events, In all I do Court. so without hesitation. O’Connor,

Justice dissenting. today categorical decision Court’s establishes a rule forbidding any any execution of offender for crime com- birthday, mitted before his 18th no deliberate, matter how objective wanton, or cruel the Neither the offense. evidence contemporary pro- values, societal nor the moral Court’s analysis, portionality justify nor the two tandem suffice to ruling. this

Although support in the Court finds for its decision the capital pun- majority fact that a of the States now disallow 17-year-old asserting it offenders, ishment of refrains from compelled genuine holding by a that its is national consensus. the evidence conclu- Indeed, before us fails demonstrate sively any emerged in the brief such consensus has practice period constitutionality upheld of this since the we (1989). Kentucky, v. 492 S.U. 361 Stanford by ultimately, Instead, rests, rule the the decreed Court independent dispropor- judgment on its moral that death is a tionately 17-year-old punishment any severe for offender. judgment. I as a do not subscribe to this Adolescents class undoubtedly culpable are less and therefore less for mature, misconduct, their than the has adduced adults. But impeaching seemingly no evidence reasonable conclusion by many legislatures: state that at some 17- reached least year-old sufficiently are murderers mature to deserve appropriate an Nor it case. has been juries incapable capital sentencing of shown that are accu- rately maturity giving assessing youthful a or of defendant’s weight mitigating due associated with characteristics youth. especially light this of the fact that so

On record—and changed has since our recent decision in little Stanford —I propriety judgment our the moral would substitute about punishment 17-year-old judg- capital for murderers for the legislatures. Rather, of the I would demand ments Nation’s truly showing society its has set facе clearer that our against practice reading Eighth Amendment before this categorically to forbid it.

I A agree begin making much I with me clear that Let guide general principles description Court’s jurisprudence. Amendment our Amendment bars not that are only punishments “‘barbaric,’” inherently “ but also those that are ‘excessive’ in relation to the crime Georgia, Coker committed.” 433 U. S. A

(plurality sanction opinion). is therefore beyond State’s if authority inflict it makes “no measurable contri bution”- to or acceptable out of penal goals “grossly propor tion to the Ibid. of the crime.” The basic severity “precept justice punishment crime should be . . . propor States, Weems v. United tioned to offense,” [the] 217 U. S. 349, 367 (1910), with force to applies the special death pen In alty. cases, the capital Constitution demands that the punishment be tailored both to the nature of the crime itself and to the defendant’s ‍​‌​​‌‌‌​​‌​‌​‌​‌‌​‌​‌​​‌‌‌‌​‌​​​​​​​​‌​​‌​‌‌​​​​‍“personal and moral responsibility guilt.” Enmund v. Florida, 782, 458 U. (1982); S. 801 see id., also at 825 (O’Connor, Arizona, Tison v. J., dissenting); Eddings 137, 149 481 U. S. v. Oklahoma, 455 U. (1987); 104, S. (1982). 111-112 is

It now by beyond serious the dispute Eighth Amendment’s of prohibition “cruel and unusual punish- ments” is not a static command. Its mandate would be little more than a dead letter if it today barred those sanc- only tions —like the execution of children under the seven —that civilized had society already repudiated in 1791. ante, See at 587 (Stevens, J., Stanford, cf. concurring); supra, at 368 the (discussing common law rule at the time the Bill of was Rights Rather, adopted). because “[t]he basic concept the Amendment underlying Eighth nothing less than the man,” the dignity Amendment “must draw its from the meaning standards of evolving decency Trop mark the Dulles, of a progress maturing v. society.” (1958) 356 U. S. 100-101 (plurality opinion). discern- standards, those look ing we factors to “objective the max- supra, Coker, imum extent.” possible at 592 opin- (plurality ion). Laws enacted the Nation’s legislatures provide “clearest and most reliable objective evidence of contempo- Penry Lynaugh, values.” rary (1989). 492 v. U. S. juries, sentencing where reflecting the actions data And “ objective significant reliable and ‘a available, can also afford (plurality supra, at 596 Coker, mores. societal index’” of 153, 181 Georgia, Gregg S. (quoting U. opinion) JJ.)). Powell, (joint opinion Stewart, Stevens, is entitled objective of this nature Although evidence Rather, as the inquiry. weight, end our it great does Consti “the 563, 574-575, today ante, at reaffirms, see judgment will our own contemplates end that in the tution of the acceptability question of the brought to on bear be supra, Coker, Amendment,” under death as re “[Proportionality least opinion). (plurality at —at inquiry into requires only an punishment capital gards —not ju by legislators expressed contemporary standards of the magnitude notion involves the also rors, but degree of the to the imposed be related must punishment degree of as to the well victim, as inflicted harm supra, Enmund, blameworthiness.” defendant’s a “constitu dissenting). have We therefore J., (O’Connor, judge ourselves whether obligation” tional particular or offense punishment for a penalty is excessive S., at 382 492 U. Stanford, (O’Con See of offenders. class judgment); concurring see in part concurring in nor, J., (“[I]t ultimately us is for supra, at 797 Enmund, also imposition of permits Eighth Amendment judge the whether penalty”). the

B applied these has decades, the Court last two in the Twice per Eighth Amendment deciding whether in principles Thomp offenders. punishment of adolescent capital mits (1988), plurality of four a Oklahoma, 487 U. S. v. son capi barred Eighth Amendment that the concluded Justices before committed for a crime an offender punishment of tal on narrower judgment in that age 16. I concurred “definitely legislatures had state time, 32 grounds. At the exposed the threat 15-year-old be should no concluded legislature affirmatively had execution,” and no endorsed practice. concurring Id., a at 849 in such (O’Connor, J., judgment). acknowledging While that a national consensus 15-year-old forbidding “very the execution of offenders likely” adopt did I declined to that conclusionas a mat- exist, evidentiary support. ter of constitutional law without clearer my Nor, view, in could the be Ibid. issue decided based on proportionality arguments type by moral of the advanced today. Granting premise “that adolescents blameworthy generally than are less adults who commit sim- necessarily I “it crimes,” wrote, ilar does not follow that all 15-year-olds incapable culpability are of the moral that would justify imposition capital punishment.” Id., at 853. Similarly, 15-year-olds we had before us no evidence “that inherently being incapable major a class are deterred from prospect penalty.” crimes of the death Ibid. I de- light strong that, termined instead in of the but inconclusive against capital punishment evidence of a national consensus Eighth offenders, of under-16 in concerns rooted Amend- required apply ment that we a clear statement rule. Be- capital punishment Thompson cause the statute did not specify capital the minimum at which commission of a punishable by crime death, would be I concluded that the statute could not be read to authorize the death 15-year-old Id., offender. at 857-858. year, Kentucky, supra, The next the Court Stanford held 17-year-old capital that the execution of 16- or murder- again ers did not violate the Amendment. I wrote separately, concurring part concurring judg- in the permit time, ment. At that 25 States did the execution including pen- offenders, of under-18 13that lacked the death alty altogether. id., noting “[t]he See at 370. While day may general legislative rejec- come when there is such 17-year-old capital tion of the execution of 16- or murderers that a clear national consensus can be said to have devel- oped,” day yet I concluded had not Id., that that arrived. beyond assessing my that, I reaffirmed view

at 381-382. a con- juries, has legislatures the Court and the of actions capital judge whether obligation for itself stitutional response the punishment proportionate defendant’s is a Nevertheless, I concluded Id., at 382. blameworthiness. arguments those endorsed proportionality similar categorical Eighth Amend- today justify a the did not Court 17-year-old against capital punishment 16- and ment rule ibid, supra, 853-854 Thompson, at (citing offenders. See judgment)). concurring in (O’Connor, J., constitutionality the has also twice addressed Court In mentally offenders. capital punishment retarded (1989), same Penry Lynaugh, decided the 492 U. S. Eighth rejected that the claim year we Stanford, mentally retarded. execution of barred the Amendment prac prohibited only specifically time, At two States punishment capital at all. not have tice, 14 others while did changed revisited when we S., at 334. Much had U. Virginia, S. ago 536 U. in Atkins v. question three Terms (2002). Penry held reversed Atkins, the Court capital punishment of forbids Amendment that the the 13 S., at 321. In 536 U. offenders. retarded mentally wave of been a had Penry there years Atkins, between By such offénders. legislation prohibiting the execution pen barred the death Atkins, 30 States we heard the time among States mentally those alty retarded, and even very exe few had punishment, theoretically permitting such history. 536 recent mentally offender retarded cuted a evidence, the Court basis of this S., 314-316. On U. at consensus say national “fair to that it was determined practice. Id., 316. against” developed ha[d] solely ten- on this rest Atkins did decision in But our independent moral the Court’s Rather, tative conclusion. men- observed that dispositive. The judgment was cognitive major and be- persons from tally suffer retarded “subaverage functioning” e., intellectual deficits, havioral i. adaptive “significant in skills such as commu limitations that became manifest nication, self-care, and self-direction impairments, of their Id., 18.” at 318. “Because before persons] by capacities [such have definition . . . diminished process communicate, to information, to understand and to experience, engage learn from to abstract from mistakes and impulses, logical reasoning, to in to control understand Ibid. We that these the reactions of others.” concluded of deficits called into serious doubt whether the execution mentally measurably retarded offenders would contribute principal goals capital punishment penological in Id., tended to deterrence. at 319- serve—retribution and Mentаlly impairments 321. retarded offenders’ so diminish personal unlikely culpability highly that it is their moral punishment, ever such offenders could deserve the ultimate capital Id., And these even cases murder. 319. very improbable impairments same it made the threat mentally persons retarded of the death would deter Having committing capital Id., from crimes. at 319-320. mentally capital punishment of concluded that retarded Eighth Amendment, is inconsistent with the the Court “ appropriate ‘le[ft] State[s] developing task of [their] ways upon the constitutional ex to enforce restriction (quoting Id., ecution sentences.’” at 317 Ford v. Wain 416-417 (1986)). wright, 477 U. S. II

A guide Although general principles that our jurisprudence ground, I Amendment afford some common ways part applying case be- with the them to the Court preliminary I with the matter, fore us. As a take issue acknowledge, reprove, failure to or even Su- Court’s preme refusal to follow our Missouri’s unabashed controlling The lower court concluded decision Stanford. recency, despite holding that, clear and historical Stanford’s authority longer binding because it our decision was no was premised on the court an obsolete assessment what deemed contemporary apart merits of the values. from the Quite question, clear constitutional this was error. Eighth meaning “draw[s] its

Because Amendment Trop, evolving decency,” S., 356 from .. standards of U. at . changes (plurality opinion), significant in societal mores 101 may prior require time us to reevaluate a decision. over prerogative Nevertheless, alone it remains “this Court’s Khan, precedents.” one of v. 522 overrule its State Oil Co. added). where (emphasis That is so even 3, U. S. may appear subsequent developments decisions or factual “significantly our earlier have the rationale for undermined” (2001); holding. Hatter, 557, 532 U. S. United States v. supra, Rodriguez Quijas Co., 20; see also State Oil at de (1989). Express, Inc., 477, 490 U. S. Shearson/American provides exception no to this rule. Amendment contrary, predictable, clear, and uniform constitu- On the sphere. By especially desirable in this tional standards are affirming judgment much court’s without so as a the lower frequent slap today’s to invite hand, on the decision threatens disruptive Eighth Amendment of our reassessments precedents.

B juvenile determining com- In whether the decency, contemporary our in- ports with standards objec- begins quiry most reliable with the “clearest and contemporary actions of values” —the tive evidence of Penry, supra, legislatures. at 331. As the Nation’s jurisdictions emphasizes, number of the overall under-18 offend- currently disallow the execution the execution forbade ers. is the same as the number that mentally decided. Atkins was offenders when retarded present, the District of Ante, at 564. At States pеnalty, while an additional do not have the death Columbia capital pun- authorize and the Federal Government 18 States prohibit the of under-18 offenders. ishment but execution A). (Appendix here, in At- And ante, at 580-581 See very permit only kins, fraction of the small States capital punishment within the class of offenders relevant actually an execution in recent his- has carried out such tory: executed under-18 offenders in the 16 States have Six years five had executed men- since while States Stanford, tally years prior retarded offenders the 13 to Atkins. See Atkins, S., 316; Streib, V. The Juvenile Death 536 U. Penalty Today: for Juve- Death Sentences and Executions January 31, 2004, 76, No. Crimes, 1, nile 1973-December (2005), http://www.law.onu.edu/faculty/ pp. 15-23 available at (last streib/documents/JuvDeathDec2004.pdf updated Jan. 2005) (as 25, visited Feb. and available Clerk Streib). file) (hereinafter respects, case these Court’s objective “similar, in is, indeed, in this case evidence upon respects parallel to,” the evidence which we re- some Ante, in lied Atkins. at 564. two

While the cases are undeni- the similarities between objective margin- consensus is able, evidence of national ally importantly, in Atkins there was weaker here. Most significant opposition to the execution of evidence of virtually countervailing mentally was no retarded, but there practice. legislative support for this evidence of affirmative (O’Connor, concurring Thompson, J., at 849 S., 487 U. Cf. (attributing significance that “no judgment) in to the fact affirmatively unequivo- country legislature in this has offenders). 15-year-old cally capital punishment endorsed” only permitted be- that such executions did so The States any prohibitory legislation. they had not enacted cause current statutes contrast, at seven have Here, least States age specifically minimum at which set or 17 as the 16 capital expose commission of a crime can to the offender A).* penalty. (Appendix ante, death at See 579-580 Five presently juvenile of these seven States have one or more (six respondent offenders on death row if is included in the count), see Streib four of have 24-31, and them executed at years, past one least under-18 offender in the at id., see currently juvenile 15-23. In all, there are over 70 offenders (13including respondent). on death row in 12 different States suggests id., See at 11,24-31. This measure evidence some continuing public support availability for the of the death penalty 17-year-old capital for murderers.

Moreover, the “not Court Atkins made clear that it was [States forbidding so much the number of execution mentally retarded] significant, consistency [was] but the change.” of the S., direction of at contrast U. 315. uniformly trend in Atkins, have moved the States abolishing juvenile penalty. toward Instead, since exрressly our decision in two have reaf States Stanford, support practice by enacting firmed their for statutes this sétting capital punishment. 16 as the minimum See §18.2-10(a) §565.020.2(2000); Mo. (Lexis 2004). Stat. Va. Ann. Code Rev. emphasized Furthermore, in At as the Court legislative pace itself, 18, kins U. at S., n. considerably action in than it this context has been slower mentally regard capital punishment was with re of the * In 12 other offenders capital punishment, States that have under-18 subject can be the death transfer statutes result of serious crimes. permit such offenders to be tried as adults for certain A). ante, Thompson Okla (Appendix See 579-580 As I observed homa, judgment): (opinion concurring U. S. 850-852 reasons, capital many are to do with having nothing “There whatsoever general as a mat punishment, might legislature provide motivate a justice proc criminal ter for some to be channeled into the adult [minors] op counted as clearly ess.” cannot be Accordingly, while these States offenders, they permit the fact that posing capital of punishment under-18 necessarily does not through this indirect mechanism punishment such practice. legislative support for unequivocal and show affirmative See ibid. Penry years in between our decisions

tarded. the 13 the execution of banned Atkins, no fewer than States supra, mentally Atkins, at 314— retarded offenders. See years ago By comparison, in since our decision 16 Stan 315. previously permitted only the execu States that four ford, plus offenders, Government, the Federal tion of under-18 legislatively State’s course, have reversed and one additional penalty high statute court has construed the State’s death apply Furman, offenders, to under-18 see State not to (en banc). 1092, 1103 2d P. 2d 440, 458, 858 Wash. change partially pace as attributable, of is no doubt

slower already says, had im the Court to the fact 12 States posed of 18 when was decided. a minimum Stanford extraordinary ante, Nevertheless, the wave See at 566-567. leading pro legislative up our in action decision Atkins country truly strong had set itself vided evidence that the against capital punishment mentally Here, of the retarded. pace change gives halting contrast, reason for pause. objective supporting

To the extent that the to- evidence day’s merely high- Atkins, decision is similar that in this lights dispositive the fact that such evidence is not in either today all, confirms, of the two cases. After “ requires at ‘in the ante, 563, 574-575, the Constitution ” judgment... deciding brought in end our own be to bear’ particular punish- Eighth a whether the Amendment forbids supra, (quoting Coker, S., at 597 ment, Atkins, at 312 U. (plurality judgment merely opinion)). This is not a rubber stamp tally jury legislative Rather, on the actions. Eighth inquiry integral part it is an of the Amendment —and independent weight reaching our one that is entitled to ultimate decision. objeсtive Atkins, evidence of a national

Here, as prior consensus than in cases which the is weaker most particular punishment under the Court has struck down (plural- supra, Coker, Amendment. 595-596 See rape ity opinion) (striking an adult down death only jurisdiction punish woman, such where one authorized ment); (striking pen Enmund, down S., 458 U. death alty aiding abetting felony-murder, for certain crimes of and only eight jurisdictions punishment); where such authorized Wainwright, (striking capital Ford S., at 408 down U. punishment jurisdiction permitted of the where no insane, objective practice). my evidence of na view, this the standing consensus, to dictate alone, tional was insufficient compelling holding moral Rather, the Court’s Atkins. proportionality argument capital punishment against of men tally persuading played a decisive role in retarded offenders practice the Court that the inconsistent with the was proportionality argu Indeed, Amendment. the force of the significantly ment in confidence Atkins bolstered the Court’s objective herald did, fact, that the evidence in that case by emergence genuine Here, of a national consensus. juvenile proportionality argument against contrast, any, given little, if is so flawed that it can be analytical weight proves linger too weak to resolve the —it ing ambiguities objective legislative evidence of con justify categorical sensus or to the Court’s rule.

C Seventeen-year-old categorically must be ex- murderers says, empted capital punishment, the because from Court they among reliability “cannot be classified the worst with premised conclusion is Ante, at 569. That offenders.” perceived who have al- “adults,” three differences between “juveniles,” birthdays, ready who reached their 18th juveniles lack matu- ante, First, have at 569-570. not. See rity responsibility reckless than adults. more and are juveniles influences are more vulnerable to outside Second, surroundings. they over their because have less control fully juvenile’s formed as third, And character is not characteristics, that of an Based on these adult. 17-year-old capital not as murderers are

determines that blameworthy guilty as adults of similar crimes; that 17- year-olds likely are less than adults to be deterred prospect of a death sentence; and it is difficult to con- 17-year-old clude that a who commits even the most heinous of “irretrievably crimes is depraved.” Ante, at 570-572. suggests The Court that might “a rare case arise in which a juvenile offender psychological has maturity, sufficient and at the same time demonstrates depravity, sufficient to merit a sentence of Ante, death.” at 572. However, the Court argues categorical age-based that a prohibition justified is as prophylactic a “[t]he rule because juve- differences between nile and adult offenders are too marked and well understood allowing youthful to person risk a to pen- receive the death despite alty culpability.” insufficient Ante, at 572-573. beyond

It juveniles is cavil that generally as a class are mature, less responsible, less fully and less formed than and adults, that these juveniles’ differences bear on com- parative culpability. moral g., See, e. Johnson Texas, (1993)(“There U. S. dispute is no that a defendant’s youth is a mitigating circumstance”); relevant id., at 376 (“[TJhe dissenting) J., youth vicissitudes of bear (O’Connor, directly young on the culpability offender’s responsibil- and ity crime”); (“Our Eddings, the 455 S., U. at 115-116 his- tory replete judicial with recognition laws and that minors, especially years, generally their earlier less are mature adults”). responsible than But accepting even this premise, the proportionality argument Court’s sup- to fails port categorical its rule.

First, the Court adduces no evidence sup- whatsoever port sweeping its conclusion, ante, see at 572, that it is only in “rare” if 17-year-old cases, ever, that murderers are sufficiently mature and act with depravity sufficient to war- rant penalty. the juveniles death The fact gener- are ally culpable less for their misconduct than adults does not necessarily 17-year-old mean that a murderer cannot be suf- ficiently culpable penalty. merit the most, death At 17-year-old average suggests argument

Court’s average murderer. adult culpable as the as is not murderer may neverthe- juvenile depraved offender especially But an considered many offenders culpable adult just as be as less Similarly, fact penalty. death enough to deserve bad likely may less be availability the death that the capital does not committing a crime juvenile from to deter 17-year- some effectively deter cannot imply threat this which age below Surely is an there an such act. olds from have deemed crime, be can what his no matter offender, no necessary maturity warrant cognitive or emotional margins adoles- between least at penalty. atBut 17-year-olds such especially for cence and adulthood—and “adults” between differences respondent relevant —the degree, than rather matter appear to be a “juveniles” reasonably may conclude legislature a It follows kind. moral sufficient act 17-year-olds with can some least that at threat sufficiently deterred be culpability, can and an may be warranted punishment capital execution, that appropriate case. Christopher just case. such a appears to be this

Indeed, wan- premeditated, Shirley was Crook murder Simmons’ committed he before Well extreme. cruel ton, and kill someone. to he wanted declared сrime, this Simmons (ages 15 friends with two discussed occasions, he several On murder 16) and burglarize a house plan to his and bridge. from pushing him up and by tying the victim victim ” “ they because away it’ with ‘get they could said Simmons with this In accord 3. Petitioner for Brief were minors. into accomplice broke 15-year-old his and plan, Simmons from night, her forced of the the middle home in Mrs. Crook’s There, park. a state drove her and her, bound bed, her “hog- river, spanning a trestle a railroad her to they walked completely face her cable, bound electrical her with tied” the trestle. from alive, her, still pushed tape, and with duct can 4. One Id., below. the water drowned She scarcely imagine the terror that this woman have suf must fered throughout leading the ordeal to her death. Whatever can be said comparative about the culpability moral of 17- year-olds general as a matter, Simmons’ unquestion actions ably reflect “‘a materially consciousness “depraved” more than that average of ... murderer.”' Atkins, S., 536 U. (quoting at 319 Godfrey Georgia, (1980)). 420, 433 U. S. prediction And Simmons’ that he could impu with murder nity yet because he had not though turned inaccurate— 18— suggests that he did take into perceived account the risk punishment in deciding whether to commit the crime. on Based this sentencing evidence, the jury certainly had grounds reasonable concluding despite that, Simmons’ youth, “ha[d] he sufficient psychological maturity” when he committed this murder, horrific and “at the same time demonstrate^] depravity, sufficient to merit a sentence of death.” Ante, at 572. proportionality Court’s argument suffers from a sec- closely

ond and related defect: It fails to establish that the maturity differences in 17-year-olds between young “adults” are both enough universal significant enough justify a bright-line prophylactic against rule capital punish- ment of the former. The Court’s analysis premised differences aggregate in the juveniles between and adults, frequently which do not hold true comparing when individu- Although may als. it many be that 17-year-old murderers lack maturity sufficient to deserve penalty, some juvenile may quite murderers be Chronological age mature. is not an unfailing measure of psychological development, experience and common suggests many that 17-year-olds are more average mature than young the “adult.” short, the class of exempted offenders capital punishment from by today’s decision is too broad and too diverse to warrant a categorical prohibition. age-based Indeed, the line drawn by the indefensibly Court is arbitrary quite likely will —it protect a number of offenders who are mature enough to vulnerable leave may well the death deserve many not. are who 17-year-olds as analysis, proportionality purposes of

For the materially from different qualitatively are a class we offenders, as “Mentally retarded” mentally retarded. by precisely Atkins, are category in understood defined punish- an excessive death render which characteristics the definition,” one “by person is, mentally retarded A ment. proved been capacities have behavioral cognitive and whose S., at Atkins, 536 U. See minimum. a certain fall below to (discussing characteristics 308, n. 3 id., also 318; see (leaving the to retardation); n. 22 317, and id., at mental which determine to development mechanisms the States punish- capital exempt from class the within fall offenders ment). Atkins, our decision purposes Accordingly, for blameworthy for merely less not mentally are retarded the by death likely deterred to be or less misconduct their mentally offender retarded Rather, a others. penalty than highly soit make impairments demonstrated is one whose pen- enough to deserve culpable is unlikely he by threat of deterred been have he could alty or There punishment. a defensible is not execution death, that offender’s an between fit or accurate inherent no such which personal limitations age and chronological for 17- excessive punishment capital make believes Court to sense common defies Moreover, it year-old murderers. equivalent are somehow a class 17-year-olds suggest that culpability or regard persons with mentally retarded may, on Seventeen-year-olds susceptibility deterrence. maturity but that lesser adults, than average, be less mature impair- lifelong major, equated with be simply cannot mentally retarded. by the ments suffered clearly im- by raised issues proportionality concerns these But concerns. Eighth Amendment plicate arbitrary, of an means may properly be addressed through individualized rather but rule, age-based categorical sentencing juries required in which give are to appropriate mitigating weight to the immaturity, defendant’s suscep- his tibility pressures, to outside cognizance his of the conse- quences of his actions, and so forth. way the consti- response tutional can be specific problem tailored to the it is remedy. to meant The guards against Amendment the execution of those who are “insufficientpy] culpab[le],” see ante, at significant part, 573, in by requiring sentencing “reflects] a response reasoned moral to the defendant’s background, character, and crime.” Brown, v. California (1987) U. S. concurring). J., Ac- (O’Connor, cordingly, the sentencer in capital a permitted case must be give to full effect to all constitutionally mitigating relevant evidence. See Tennard v. Dretke, 542 U. S. 283-285 (2004); Lockett Ohio, 438 U. S. 586, 604 (plurality opinion). A youth defendant’s or immaturity is, of course, a paradigmatic example of such Eddings, evidence. See U. S., at 115-116.

Although prosecutor’s apparent attempt to use re- spondent’s youth an aggravating circumstance in this case troubling, that conduct was never challenged speci- with ficity in the lower courts and is not directly at issue here. As the suggests, Court itself such “overreaching” would best be addressed, if through at all, a narrowly more tailored rem- edy. See ante, at 573. argues Court that sentencing juries accurately cannot youthful evaluate offender’s matu- rity give appropriate or weight to mitigating characteris- youth. tics related again, But, presents no real evidence—and the appears record support- contain none— ing this Perhaps claim. importantly, more the Court fails to explain why duty this should be so different from, or so much more difficult than, assessing that of giving proper effect any qualitative other capital sentencing factor. I would quick be so to conclude that the constitutional safe- guards, the sentencing juries, and judges upon trial capital are inad- cases place in all so much reliance we

which equate in narrow this context.

D foreign in- and finally, of Court’s to the discussion turn, I global a question, has been there law. Without ternational abolishing capital punishment years trend recent toward any, other Very if countries few, for offenders. under-18 practice in law or permit this now than the United States acknowledging While ante, at 576-577. fact. See out- not do dictate of other countries and views actions inquiry, Court asserts Eighth of our Amendment come opinion weight overwhelming of international that “the respected provide penalty... juvenile does against death [its] conclusions.” own significant confirmation and genuine na- a not I do believe Ante, Because at 578. yet juvenile penalty has against tional consensus moral the Court’s developed, believe I do not because and age-abased categorical, justifies argument a proportionality confirmatory role assign such I no rule, can constitutional Court. consensus described international to the does consensus of an international short, the evidence Eighth does my Amendment that the alter determination 17-year-old of capital punishment time, forbid not, at this in all cases. murderers conten- disagree with Justice

Nevertheless, I Scalia’s foreign (dissenting opinion), post, 622-628 tion, at Eighth Amendment place our no have law international century, nearly half course of jurisprudence. Over the foreign international consistently referred has evolving standards its assessment as relevant law Thompson, 487 21; 317, n. supra, at decency. Atkins, See Enmund, opinion); (plurality and n. S., 830-831, at U. (plural- n. 10 atS., 433 U. Coker, 22; n. 796-797, atS.,U. opinion). (plurality Trop, S., at 102-103 opinion); 356 U. ity of the special character inquiry reflects the This Amendment, which, long as the Court has held, draws its meaning directly maturing from the values soci- civilized ety. Obviously, American many law is distinctive in re- spects, specific not least provisions where the of our Consti- history exposition tution and the post, of its so dictate. Cf. dissenting) 624-625 (Scalia, J., (discussing distinctively American rules of law related to the Fourth Amendment Clause). and the Establishment But this evolving Nation’s understanding dignity certainly human wholly is neither isolated from, inherently nor at odds prevail- with, the values ing in other countries. contrary, On the we should not be surprised congruence to find between domestic and interna- especially values, tional where the community international has reached clear agreement expressed in international law — or in the domestic laws of partic- individual countries—that a punishment ular form of is inconsistent with fundamental rights. human At least, the existence of an international consensus of this nature can serve to confirm the reasonable- ness of a genuine consonant and American consensus. The presents instant case no such domestic consensus, however, and the emergence recent of global an otherwise consensus not does alter that basic fact.

[*] ^{[*] [*]} determining In whether the permits Amendment capital punishment particular of a offense or class of offend- ers, we punishment must look to whether such is consistent contemporary with decency. standards obligated We are weigh to objective both the evidence societal values and our judgment own to as whether death an excessive sanc- tion in the context at hand. In objec- the instant case, the tive evidence is standing inconclusive; it alone, does not dem- society onstrate that repudiated our capital punishment has 17-year-old offenders in all cases. Rather, the actions of legislatures the suggest Nation’s although that, a clear and durable against national practice consensus may this in time acting soon after By so yet day arrive.

emerge, has pre-empts the dem- Court both the in Stanford, decision our might de- genuine consensus through which debate ocratic invit- risk of simultaneously considerable runs a velop and Eighth Amendment of our reassessments ing court lower precedents. today’s deci- supporting objective evidence sime, the beTo than) evi- the (though marginally weaker is similar

sion could Atkins But Atkins. the before dence solely evidence. such it was based decided been have against argument proportionality compelling the Rather, played a deci- mentally retarded punishment of capital ruling. More- Eighth Amendment Court’s role sive tailored was adopted in Atkins rule the constitutional over, capital exempted from argument: It proportionality to this proven im- whose group of offenders punishment a defined impossi- perhaps unlikely, highly it pairments rendered culpability neces- degree of they with act ble, that could Atkins, the States left to And sary death. to deserve individual which to determine development mechanisms this class. fell within offenders proportionality moral by contrast, case, instant support fail juvenile death against the

arguments question that today. is no adopts There the Court rule mitigat- a relevant is itself minor chronological age of a “the 116, and S., at Eddings, U. weight,” great ing factor care- opportunity given an be juries must sentencing deciding maturity in age fully a defendant’s to consider mitigating penalty. But the death assess to whether justify an abso- youth do with associated characteristics conclude, reasonably legislature can age A limit. lute mature are 17-year-old murderers some many have, appropriate case. an penalty in enough to deserve sentencing suggests us before nothing the record And 17-year-old de- accurately to assess so juries unable are maturity, incapable giving proper weight fendant’s or so youth mitigating that the factor, as a Amendment requires bright-line imposed today. end, rule In the proportionality argument simply Court’s flawed cannot bear place weight upon the Court would it. age can Reasonable minds differ as to the minimum expose which commission of a serious crime should the de- penalty^ jurisdictions Many fendant if to the death at all. capital punishment altogether, many have abolished while others have crime, determined that even the most heinous if age punishable by committed before the should not be my legislator, Indeed, death. were of a office that rather judge, support legisla- than a I, too, then would be inclined to setting tion a minimum of 18 in this context. But a significant including States, Missouri, number of have de- penalty potentially cided make the death available for 17- year-old capital respondent. murderers such as Without a showing genuine clearer that a national consensus forbids the execution of such this offenders, Court should not substi- “inevitably subjective judgment” tute its own on how best question judgments to resolve this difficult moral for the democratically legislatures. of the Nation’s elected See Thompson, concurring at S., (O’Connor, J., U. judgment). respectfully I dissent.

Justice with whom The Scalia, Chief Justice Justice Thomas join, dissenting. urging approval gave of a constitution that life-tenured

judges power nullify by people’srep- laws enacted resentatives, Alexander Hamilton assured the citizens of “[t]he New York judi- that there was little risk in this, since ciary merely ha[s] judg- ... neither nor FORCE WILL but (C. 1961). p. ment.” The Federalist No. 465 Rossiter ed. judiciary, But Hamilton had mind a traditional “bound precedents down strict rules and serve which to define duty point every particular case that comes out their What a Id., down, Bound indeed. before them.” 471. expectation, mockery today’s opinion Hamilton’s makes of meaning announcing of our that the the Court’s conclusion years changed past mind over the has not, Constitution — years ago wrong, you, but was this Court’s decision 15 changed. this reaches The Court the Constitution has origi- by purporting to the implausible advert, not result evolving meaning Eighth “the Amendment, of the but to nal (internal decency,” quotation marks ante, of at 561 standards omitted), society. flim- finds, then on the of our national It grounds, could not which that a national consensus siest ago barely years perceived people’s now be our laws many solidly says in so words still, exists. Worse the Court say people’s not, about the issue does that what our laws analysis, judgment “[I]n end our own the last matter: acceptability brought question of the will be to bear on the Eighth Ante, of the death under the Amendment.” omitted). (internal quotation thus The Court at 563 marks proclaims moral stand- itself arbiter of our Nation’s sole respon- discharging that awesome in the course ards—and foreign sibility purports guidance to take from the views believe that the legislatures. I do not courts and Because any meaning more than Amendment, of our meaning provisions be Constitution, our should of other subjective of this of five Members determined views foreigners, I dissent. and like-minded

HH punishment who determining capital of offenders unusual” “cruel 18 is committed murder before considers, in first the Court Eighth Amendment, under the mistaken) my (though in view with our modern accordance consensus,” ibid. jurisprudence, a “national whether there is (internal omitted), allowing such that laws quotation marks decency,”1 our “standards of executions contravene modern (1958). Trop Dulles, 86, have held that v. 356 U. 101 We S. “objective indicia this determination should be based that namely, public given a reflect attitude toward sanction”— passed society’s representatives.” elected “statutes (internal Kentucky, quo 361, 370 v. 492 U. S. Stanford tation marks omitted). Virginia, As in Atkins 536 v. U. S. (2002), dutifully 312 this test and 304, recites halfheartedly emerged a has claims that national consensus in 47% since our because 18 States —or decision Stanford, permit capital punishment legislation have States —now prohibiting the execution of offenders under and because 18, adopted legislation all of 4 have States such since Stanford. ante, at 565. See meaning

Words have no if the than views of less 50% penalty States can constitute a national consensus. supra, dissenting). Atkins, J., at See 342-345 Our (Scalia, previous overwhelming required opposition have to a cases challenged practice, generally long period over a of time. In (1977), Georgia, plurality v. 584, Coker 433 U. S. 595-596 a Eighth prohibited capital punish- concluded the Amendment rape only jurisdiction ment for of an adult woman where one punishment. plurality authorized such also observed “[a]t years majority ha[d] no time the last 50 ignores entirely inquiry 1 The Court the threshold in determining particular punishment complies whether a with Eighth Amendment: punishment whether it is of the “modes or acts of that had been consid one adopted.” Rights ered cruel and unusual at the time that the Bill of was (1986). 399, Wainwright, Ford v. prior 477 U. S. 405 As we have noted cases, unusually the evidence is clear that the Eighth Amendment was not originally prohibit ‍​‌​​‌‌‌​​‌​‌​‌​‌‌​‌​‌​​‌‌‌‌​‌​​​​​​​​‌​​‌​‌‌​​​​‍punishment 17-year- 16- capital understood for (1989). 361, Kentucky, old 492 At offenders. See U. S. Stanford adopted, penalty the time the Amendment was the death could theoretically 7-year-old, though be for the crime of a there was a imposed (or other) felony presumption incapacity capital rebuttable to commit a ibid, Blackstone, *23- until the of 14. 4 W. Commentaries (citing See (1800)). *24; Hale, 1 M. Pleas of the Crown 24-29 punishment rape.” Id., for States authorized death as a (1986), Wainwright, 593. In Ford v. we U. S. tracing of the unconstitutional, held execution insane noting prohibition roots of this to the common law and permits State in the of the insane.” “no union the execution (1982), Florida, we invali- Enmund v. 458 U. S. imposed participation capital punishment in a rob- dated bery accomplice 78% murder, because which an committed punishment. prohibited of all death this States legis- expressed hesitation, some because Even there we 'wholly judgment among unanimous state lative was “neither legislatures,’ compelling legislative judg- the . . . nor as as By Id., contrast, ments considered in at 793. Coker.” agreement penalty among of death 42% States Stanford, correctly appears decided at which the Court to believe was ante, time, the was insufficient to show a national at supra, consensus. at 372. Stanford, See attempt keep implausible In an afloat its assertion proposi- a consensus, national the throws overboard Court jurispru- tion well established our Amendment says, “that the “It should be observed,” dence. Court considered those States that had Court should have Stanford penalty altogether part as of the the death abandoned juvenile penalty against ; . . . a consensus State’s necessity penalty altogether of decision to bar the death inappro- judgment penalty a that the death is demonstrates juveniles.” priate including Ante, at 574. offenders, for all counting con- new method of The insinuation that the Court’s misleading. only None of is tradicts “the Court” Stanford limitation dealing alleged with an constitutional our cases supporting upon penalty counted, as the death has States elimi- that have limitation, States in favor of that consensus supra, penalty entirely. at Ford, See nated the death supra, And with supra, Coker, at 594. Enmund, 789; n. 2; Consulting good bar the death reason. States pen- exception necessity making concerning an alty including for offenders under 18 is rather like old-order consumer-preference poll Amishmen in a on the electric car. they light it, course don’t Of like but that sheds no whatever point on the That 12 at issue. States favor no executions says something against penalty, about consensus the death nothing absolutely nothing but consensus that — —about special immunity offenders under 18 deserve from such a penalty. repealing penalty, the death those 12 States puts considered none of the factors that forth as today culpability determinative of the issue before us —lower young, capacity inherent recklessness, lack of for con- judgment, might sidered What perhaps, etc. be relevant, many permit 17-year-old how of those States 16- and offend- respect ers to be noncapital treated as adults with of- (They require juve- fenses. all do;2 indeed, some even young they niles as charged 14 be tried as if adults are murder.3) attempt by with turn Court to its re- minority majority by markable consensus into a faux count- ing nomological desperation. Amishmen is an act of

Recognizing argument its national-consensus was compared weak with our cases, earlier the Atkins Court support found additional pro- in the that 16 fact States had mentally hibited execution of retarded individuals since 2 (Lexis 2002); §47.12.030 See Alaska Stat. § 571-22 Haw. Rev. Stat. (1999); (2003); § 3101(4) § 232.45 Ann., Iowa 15, Code Me. Rev. Stat. Tit. (West (West 2003); Ann., 119, § Mass. 2003); Gen. Laws ch. 74 Comp. Mich. (West § 764.27 Laws 2000); § 260B.125 Ann. (2004); Minn. Stat. N. D. Cent. (Lexis (Lexis § 2003); Code § 27-20-34 Supp. 2002); R. I. Gen. Laws 14-1-7 (Lexis Ann., 33, 2001); (Lexis § 5516 Vt. § 49-5-10 Stat. Tit. W. Va. Code 2004); § (2003-2004); Wis. Stat. 938.18 see also National Center for Juvenile Justice, Trying and Sentencing Analysis Juveniles as Adults: An of State (Oct. 2003). Transfer and Sentencing Blended 1 Laws The District of only jurisdiction Columbia is the without a death penalty specifically exempts under-18 offenders from its harshest imprisonment sanction —life (West 2001). §22-2104 parole. without See D. C. Code 3 (West Ann., 119, 2003); § See Mass. Gen. Laws ch. 74 N. D. Cent. Code (Lexis (Lexis 2003); 2004). §27-20-34 § 49-5-10 Supp. W. Va. Code 612 (1989).

Penry Lynaugh, Atkins, S., v. 492 302 536 U. U. S. distinguished Indeed, at 314-316. Stan- the Atkins Court very ground, explaining “[although on that we de- ford day Penry, apparently only on the cided same Stanford legislatures impo- for state raised the threshold two have (empha- penalty.” S., 315, sition of the death n. U. added). says change legislative in four Now, sis the Court a trigger pro- “significant” enough a constitutional States is to amazing that this Ante, at It to think hibition.4 566. is entirely subtle can take the issue off shift numbers legislative for table debate. many legislators

I doubt whether who voted to also change done so if in those four would have laws States they (by pronouncement had would known their decision Court) legislative all, After of this be rendered irreversible. surged support any capital punishment, form, has for history. throughout our As Justice and ebbed Nation’s explained: has O’Connor history penalty

“The instructs that there the death danger inferring consensus from a settled societal 1846, In statistics like on in this case. those relied Michigan abolish the death became the first State penalty succeeding American decades, In other .... abolition .... continued the trend towards States particularly II, there ensued Later, and after World War steady executions .... a and dramatic decline in radically abolished or 1960’s, the 1950’sand more States capital punishment, executions ceased restricted years beginning completely in 1968.. . . several executions notes, prohibit Washington As the Court State’s decision decision. judicial, legislative, of offenders under 18 was made Furman, 1092, (1993), State con P. 2d 122 Wash. 2d any age did not set strued the State’s death statute —which that construc opinion found over 18. apply only persons limit —to difficulties, and constitutional necessary to avoid what it considered tion ques irrelevant It is popular to reflect sentiment. purport did not consensus. changed tion of national 1972,

“In arguments when this Court heard on the constitutionality penalty, of the death such statistics might suggested have practice that the had a become implicitly rejected by relic, a new societal consensus.... We any now know that inference aof societal consensus rejecting the penalty death would have been mistaken. But had this Court then declared the existence of such capital consensus, and punishment, outlawed legisla very likely tures would not have been able to revive it. premise The mistaken of the decision would have been frozen into making constitutional.law, it difficult to re fute and even reject.” more Thompson difficult to v. Oklahoma, 487 S. (opinion 815, 854-855 U. concur ring judgment).

Relying margins such especially narrow is inappropri light ate in of the fact that a legislatures number of voters expressly have support capital pun affirmed their 17-year-old ishment of 16- and offenders since Stanford. Though the Court is correct that no has State lowered its penalty age, both the Virginia Missouri Legisla which, at the time of had no Stanford, minimum tures — requirement expressly established 16 as the minimum. — §565.020.2(2000); Mo. §18.2-10(a) Rev. Stat. Va. Code Ann. (Lexis 2004). people The of Arizona5 and Florida6 have 1996, Arizona’s Ballot Proposition 102 exposed under-18 murderers to the death automatically transferring them of juvenile out courts. The statute implementing the proposition required county attorney to “bring a criminal prosecution against a juvenile in the same manner as an if juvenile adult fifteen, or years sixteen seventeen age and is accused of . . . first degree murder.” Ariz. Rev. Stat. Ann. (West § 2001). 13 — 501 Supreme Arizona Court has added to this scheme a constitutional requirement be an there individualized as sessment of juvenile’s maturity time of the offense. See State Davolt, 207 Ariz. 214-216, (2004). 84 P. 3d 479-481 6Florida approved votеrs an amendment to the Constitution, State which changed the wording from “cruel or unusual” to “cruel and un usual,” Const., I, (2003). § Fla. Art. See Commentary to 1998 Amend ment, (West 25B Ann., 2004). Fla. Stat. p. 180 This response was a ato 614 that Thus, even States by initiative. the same ballot

done years un- in recent under-18 offender an not executed have capital punishment in possibility of questionably favor the some circumstances. for infrequency of executions reliance on Court’s argu an credits 564-565, 567, ante, at murderers,

under-18 rejected explicitly considered and this Court that ment accurately explained, we infrequency is That Stanford. percent far by undisputed that a smaller fact “the said, both by persons 18than under capital are crimes committed of juries are fact 374, and S., at 18,” 492 U. over youth as a sentencing offender’s consider required at 104, Oklahoma, 455 U. S. Eddings v. see mitigating factor, (1982). possible, over only but Thus, “it is 115-116 very which in considerations whelmingly probable, that death supporters [his] believe [respondent] and duce prose under 18 cause imposed offenders never be should imposed.” rarely be juries that it should to believe cutors supra, at 374. Stanford, the relevant of that executions furthermore, unclear is,

It Be we decided age group since decreased have Stanford. 3.4%, or sentences, 3,599 death 2003, of tween 1990 and before committed crimes who given individuals were Penalty Death reaching age Streib, The 18. V. Juvenile Crimes, for Juvenile Executions Today: Death Sentences (Table 3) p. 75, 2004, No. 1973-September 30, January 1, 2004), (last http://www.law.onu.edu/faculty/ updated 5, Oct. (all ma streib/documents/JuvDeathSept302004.pdf Internet in Clerk available 2005, and 12, as visited Jan. terials Today). Penalty file) (hereinafter Death Juvenile case Court’s “cruel or unusual” excluded ruling Supreme Florida younger than he when was murder who committed penalty for defendant (1999). federal adopting State, 1, 5 By 2d So. Brennan v. 17. See decision our adopted effectively voters Florida language, constitutional Weaver, May Allow (1989). Word See S. 361 Kentucky, 492 U. Stanford 7, 2002, 7B. Herald, p. 16-Year-Olds, Nov. Miami Execution By only to death between contrast, 2.1% of those sentenced they when were under 1982 and 1988 committed the crimes Imposition supra, (citing Streib, V. 18. See Stanford, January Offenses, 1, 1982, Death for Juvenile Sentences (paper Through April p. 2 Cleveland-Marshall 5, 1989)). College April As for actual executions of Law, they the total offenders, under-18 2.4% of exe constituted Penalty. Today since 1973. Death 4. cutions Juvenile only 2% between we noted that of the executions Stanford, and found that that 1642and 1986were of under-18 offenders a consensus lower number did not demonstrate national penalty. against (citing Streib, S., the 492 at 373-374 V. U. (1987)). Penalty 55, num Thus, Death for Juveniles 57 subjected penalty, bers of offenders to the death under-18 though compared steady or low with have either held adults, slightly These statistics in no increased since Stanford. way support today. the action the takes Court

hH I-H driving today’s course, real force Of decision is not the legislatures, actions of four state “‘“own but the Court’s ’” judgment” younger that murderers than 18 can never be morally culpable counterparts. Ante, as older at 563 (in (quoting quoting Coker, Atkins, S., U. at 312 turn 433 536 (plurality opinion))). S., at 597 that this U. The Court claims simply “retur[n] usurpation of moral arbiter is a of the role predating rul[e] in decisions to the established Stanford,” solely supposed ante, at rule—which is reflected 563. That holding purports sup dicta and never once a plant people of the American with the Justices’ consensus very repudiated good for the rea- views7—was in Stanford 7 Florida, (1982) (“[W]e g., See, e. Enmund v. have no 458 U. S. for judgment legislatures] pur with the state disagree th[e] [of reason v. Geor Amendment”); Coker poses construing applying Eighth (“[T]he (1977) gia, legislative rejec S. (plurality opinion) U. for confirms our own capital punishment rape strongly judgment”). tion logic. Eighth son that it has no in law or If the foundation ordinary it would law, Amendment set forth an rule of indeed say be the role of what the law is. But the this Court to having pronounced Amendment is an Court that the evolving ever-changing standards of de- reflection of “the cency” society, then of our it makes no sense for the Justices prescribe them from those rather than discern standards evolving-standards hy- practices people. our On only pothesis, legitimate this is to iden- function of By tify people. the American what moral consensus of lawyers presume to be the au- conceivable warrant can nine thoritative conscience of the Nation?8 legislative primacy is obvious reason insistence “ legislatures, society ‘[I]n and fundamental: a democratic respond are will conse courts, constituted to to the ” Gregg Georgia, quently peopled v. the moral values of the (1976)(joint opinion Stewart, Pow 153, 175-176 U. S. JJ.) Georgia, ell, and 408 U. S. (quoting Furman Stevens, dissenting)). (Burger, rea 238, 383 For a similar J.,C. society’s stand have, we in our determination of moral son juries: practices sentencing ards, Juries consulted the “ community contemporary values ‘maintain a link between ” penal system’ for itself. the that this cannot claim and Court Witherspoon (quoting Illinois, Gregg, supra, v. 391 at 181 (1968)). 510, 519, 15 U. S. n. why judges example

Today’s opinion provides perfect judgments equipped type legislative are ill to make the support opinion making its To insists on here. Court imposing prohibited the death from should be that States 8 consensus no national analysis agrees Justice O’Connor with our ante, pre She is nonetheless here, (dissenting opinion). at 594-598 exists (like legisla of America’s judgment override the majority) to pared ante, proportionality,” of “moral her own assessment tures if it contradicts today’s votes in only it does not. The dissents here because at 598. She sentiments lawyers’ moral offending of selected demonstrate that the case one. a democratic basis for law —much less predictable is not a anyone who committed murder before sociological looks picking to scientific and studies, and choosing support position. explains those that its It never why particular methodologically those studies sound; are none was ever into entered evidence or tested in an adver- proceeding. explained: sarial As The Chief has Justice “[Methodological and other errors can affect the relia- bility validity opinions of estimates about the population sampling attitudes of a derived from various techniques. Everything survey from variations in the methodology, target population, such as the choiceof the sampling design questions used, asked, and the analyses interpret statistical used the data can skew supra, (dissenting Atkins, the results.” at 326-327 opinion) (citing Survey Survey Groves, R. Errors and (1989); Surveying Costs Martin, C. Turner & E. Sub- (1984)). jective Phenomena today,

In other all the Court has done words, borrow from context, another is to look over the of the heads crowd and pick Conroy out its friends. Cf. v. 507 U. S. Aniskoff, concurring judgment). J., (Scalia, contradicting

We need not far look to find studies petitioner points out, Court’s As conclusions. the American (APA), Psychological Association which claims in this case persons that scientific evidence shows under 18lack the abil- ity responsibility pre- take decisions, moral for their has viously precisely opposite position very taken before this Hodgson In its Minnesota, Court. (1990), brief U. S. body showing

the APA found a “rich of research” juveniles enough are mature to decide whether to obtain an parental abortion without involvement. Brief for APA as p. Curiae, Amicus etc., O.T. No. 88-805 18. APA citing psychology brief, too treatises and. studies numerous 14-15) “[B]y (age here, to list asserted: middle adolescence young people develop reasoning to adults in abilities similar laws, and understanding rules social dilemmas, moral

about relationships in- interpersonal and reasoning [and] about omitted). (citations problems.” 19-20 terpersonal Id., at conflicting methodology and of scientific nuances Given only limited evidence consider views, can courts—which equipped to determine ill them—are on the record before Legislatures “are right one. is of science which view of statisti- results weigh qualified and ‘evaluate to better a and with local conditions of their own in terms cal studies courts.’” to the flexibility approach not available Gregg, (quoting McCleskey Kemp, 481 U. S. 186). supra, at methodology, the questions studies putting

Even aside categorical prohi- support for a offer scant the Cоurt cited At under 18. for murderers bition of the death average, or most that, most, these conclude studies responsibil- to moral persons take cases, 18 are unable under opines that studies ity the cited Not one of actions. for their nature appreciate the are under 18 unable all individuals of their crimes. only who adolescents describe studies

Moreover, cited many young people risky as behavior, engage antisocial or risky just or antisocial than is more however, Murder, do. peo- young entirely to believe consistent It is behavior. at the judgment, but, impetuously lack ple and act often premeditated who commit time, those same believe culpable adults. just as as are—at least murder sometimes-— shy his only months seven Christopher Simmons, who was Shirley Crook, described birthday he when murdered 18th terms,” chilling, callous friends his “[i]n beforehand — planned to he murder puts at it, ante, 556—the the innocent of an home broke into He commit. then wire, tape and electrical with duct bound her woman, Ante, 556- bridge and conscious. alive her off threw Delaware, Alabama, States brief, In their amici 557. exam- additional Virginia offer Utah, Texas, Oklahoma, pies of murders committed individuals under 18 in that truly volve monstrous 17-year-olds, acts. Alabama, two 16-year-old, 19-year.-old one picked up and one a female hitchhiker, threw stomped her, bottles at and kicked and her approximately They 30 minutes until died. she then sex ually body assaulted her they lifeless and, when fin were body ished, threw her They aoff cliff. later to the returned crime corpse. scene to mutilate her See Brief for Alabama et al. as Amici Loggins Curiae see 9-10; v. State, also (Ala. 1999); 1070, So. 2d App. 1074-1075 Crim. Duncan v. (Ala. 1999). State, 827 838, 840-841 So. 2d App. Crim. Other examples equally in the shocking. brief are Though these assuredly exception cases are rather than the rule, the studies way justify the Court cites in no a constitutional im perative prevents legislatures juries treating from exceptional exceptional cases in way by an determining — just some murders are of happy-go-lucky acts teenagers, but deserving heinous crimes of death. every prohibits

That “almost State years those under 18 age voting, serving juries, from marrying or without parental patently consent,” ante, is irrelevant —and yet is another argument resurrection of an that this Court (What gave a decent burial in Equal kind of Jus- Stanford. tice under Law is it “Sorry that —without so much as a about gives person sparing as the basis for one from execu- that” — tion arguments explicitly rejected refusing in spare an- other?) explained As we 492 U. S., at it is Stanford, “absurd to think enough that one must be mature to drive carefully, responsibly, to drink intelligently, or to vote order enough to be mature murdering understand being profoundly another human wrong, and to conform one’sconduct to that most minimal of all civilized standards.” Serving jury entering on a marriage or into also deci- involve sophisticated sions simple far more than the decision not to take another’s life. appro

Moreover, the the Court lists “set the statutes priate ages operation system that its de for the of-a makes gross, and that conduct individual terminations does not justice system, by maturity ized tests.” Ibid. The criminal provides of each contrast, for individualized consideration requires capital the sen- cases, defendant. In this Court in determination, tencer to make an which individualized mitigating weighing aggravating factors, and cludes factors youth. Eddings, at S., such as U. 115-117. See 455 pro consideration is other contexts where individualized recognized be we least some minors will vided, have that at enough moral decisions that involve mature to make difficult we have struck down abortion instance, considerations. For by do mature courts statutes that not allow minors deemed g., bypass parental provisions. See, e. Bell notification (1979) (opinion Pow Baird, 622, otti v. 443 U. 643-644 S. J.); Mo. v. Planned Parenthood ell, Central Danforth, (1976). why this context 74-75 It is hard to see 52, U. S. any Whether to obtain an abortion

should be different. young person surely complex than decision for a a much more person in cold blood. whether to kill an innocent ju 572-573, that however, ante, at concludes, The weighing a task of be with the delicate ries cannot trusted mitigating aggra youth along and defendant’s with the other startling vating under conclusion crime. This factors his sentencing sys very capital of our foundations lines “mak[ing] and juries the difficult which entrusts with tem, defy uniquely judgments that codification human sys flexibility legal equity, a buil[d] into discretion, Kalven & H. supra, (quoting H. McCleskey, at tem.’” (1966)). says, Jury The Court The American Zeisel,. sig appreciate the juries will be unable ante, 573, at of a with details youth faced when defendant’s nificance of a to the evidence; on no is based crime. This assertion brutal acknowledges that the execution contrary, itself the Court “with- “infrequent” in the States even offenders is under-18 prohibition executing juveniles,” out a formal ante, 564, at juries suggesting seriously responsibility take their weigh youth mitigating as a factor. suggest stopping point

Nor does the Court for its reason ing. juries appropriate If make cannot determinations in involving eases under murderers what other kinds of jurors cases will the already Court find deficient? We have jury may held that no mentally consider whether a deficient penalty, irrespective defendant can receive the death of his Atkins, crime. See Why S., U. 321. not take other mitigating factors, such as considerations of childhood abuse poverty, away juries Surely or jurors from as well? “over powered]” by brutality “the or cold-blooded nature” of a crime, ante, at adеquately weigh could mitigat these ing factors either.

The Court’s goals contention that the of retribution and deterrence are executing not served murderers under 18 transparently is also argument “[Retribu- false. The proportional tion is not if the law’s most severe is imposed culpability on one whose or blameworthiness is di- minished,” ante, simply 571, at an extension of the earlier, generalization youth false always culpability. defeats “juveniles The Court claims susceptible will be less to “ deterrence,” ibid., ‘[t]he teenage because likelihood that the offender has analysis made the kind of cost-benefit that at- any weight possibility taches to the is so execution remote virtually as to be (quoting nonexistent,”’ ante, at 572 837). Thompson, 487 U. at S., The unsurprisingly support finds no astounding proposition, for this save its own case very law. The facts proposition of this case the show committing be false. Before crime, Simmons encour- aged join by they his assuring friends to him them that could “get away they with it” because were minors. State ex rel. (Mo. 2003) Roper, (Price, Simmons v. 112 S. W. 3d 397, 419 dissenting). J., may jury’s This fact have influenced the de- impose punishment capital cision despite age. Simmons’ possibility that refuses to entertain Because the Court juveniles could generalization about its unsubstantiated own entirely. ignores wrong, be it this evidence I I I essentially Though irrele- of our citizens are the views own today, other coun- the views of vant to the decision Court’s community take center tries and so-called international stage. by begins noting 37 of the United that “Article

The Court [1577 Rights Child, on the Nations Convention into force 1468-1470, 1448, entered T. 28 I. L. M. U. N. S. country every has ratified Sept. in the world which 2, 1990,] express contains an Somalia, save United States and for by prohibition capital punishment committed for crimes on added). (emphasis juveniles Ante, under 18.” at on Covenant Civil discusses the International Court also (ICCPR), Rights U. N. T. S. 19, 1966,999 Political December subject only ratified ante, 567, 576, which the Senate reads: to a reservation that subject right, to its

“The States reserves United capital punishment impose constraints, Constitutional woman) (other duly con- any pregnant person than on permitting im- existing laws or victed under future punish- including capital punishment, such position eighteen persons below committed ment crimes Foreign Relations, age.” years Senate Committee Rights, and Political Civil International Covenant on (1992). p. Rep. 102-23, No. S. Exec. join power to the arsenal to its has added

Unless Court I cannot States, ratify of the United behalf on treaties posi- refutes, its than rather this evidence favors, how see our actors President —those Senate and the That the tion. II, see Art. treaties, empowers into to enter Constitution prohibiting ratify §2 join treaties declined —have only suggest that our offenders can of under-18 execution on the consensus country rеached a national has either not contrary what the question, a consensus has reached or was to the That the reservation ICCPR Court announces. suggest reserva- otherwise, since the in 1992does not made noting today. place It also worth in is tion still remains barring offend- the execution of under-18 that, in addition to Rights of the on the Nations Convention ers, the United prison prohibits punishing with without them life Child truly get going If are possibility we of release. community, reas- the international then Court’s line with really penalty needed, since is surance that the death imprisonment possibility punishment of life without “the gives parole ante, 572, lit- sanction,” is itself a severe at tle comfort. interesting not content to that whereas the Court is

It is say, accept of our Federal but insists what the States Union (specifically, they they inquiring do whether into what allow), juvenile penalty apply their laws death fact every foreign quite willing na- to believe political makeup tyrannical and with how- tion—of whatever system incompetent a court fact ad- or ever subservient —in penalty death for offenders under 18. heres to a rule of no many inquire of the countries into how Nor does the Court (on paper penalty, but have forsworn that have the death least) imposing penalty have on offenders under country constitutionally a can have: what no of this State penalty possi- crimes, with no mandatory death for certain authority, youth sentencing bility mitigation by for or g., suspect any See, them. e. R. I it is most of other reason. Analysis Capital Comparative Blaskovich, A Simon & D. Frequencies, and Atti- Public Statutes, Policies, Punishment: (2002). 26, 29 To forbid the tudes the World Over may good system juveniles be a under such a system, says nothing the sen- in which idea, about our but it authority, typically jury, always can, and almost tencing under-18 always from an the death does, withhold considering circumstances, except, all after offender foreign authori- The cases it is warranted. the rare where speak issue before to the ties, words, other not even do us here. fundamentally, premise of the basic however,

More to the American law should conform argument Court’s —that rejected out of ought to be of rest of the laws world— many In it. does not believe the Court itself hand. fact significant respects countries differ of most other the laws explicit provisions of including only such our from law— jury grand right jury trial as the our Constitution interpretations many of the Constitu even indictment, but Court-pronounced by prescribed itself. The this Court tion distinctively exclusionary example, American. rule, for 643, Mapp Ohio, adopted 367 U. S. we that rule in When (1961), jurisprudence.” “unique to American it was Agents, 388, 403 S. Fed. Narcotics U. Bivens v. Six Unknown categori (Burger, dissenting). then J., Since C. “universally rejected” exclusionary rule has been cal illegal prohibiting including with rules countries, those other none despite the police fact misconduct, searches and any form of “appears alternative have countries of these vio preventing search discipline police that is effective for W. Res. Bradley, Mapp Abroad, 52 Case Goes lations.” (2001). rarely example, England, 375, 399-400 L. Rev. illegal during or seizure an search found evidence excludes excluding ille recently begun from evidence only has Slobogin, Pro gally C. Criminal confessions. See obtained 2002). (3d ed. Investigation 550 Regulation Police cedure: only do so if admis rarely and will evidence excludes Canada disrepute.” justice “bring into sion will administration omitted). (internal quotation marks Id., at 550-551 introduction European Rights held that has of Human “fair trial” not violate illegally evidence does seized § European Convention requirement in Article Rights. Slobogin, supra, Bradley, supra, 551; Human See at 377-378. to the views of other

The Court has been oblivious coun deciding interpret tries when how to our Constitution’s re quirement “Congress respecting an shall make no law religion coun establishment of ....” Arndt. 1. Most other religious neutrality— including those committed to tries— degree separation do not insist on the of between church requires. example, and state that this For whereas Court special dangers recognized “we have Establishment Clause money government payments where the makes direct to sec Rosenberger institutions,” tarian v. and Rector Visitors of cases), (citing 819, 842 Univ. 515 U. countries S. of Va., Germany, such Netherlands, as the and Australia di allow government funding religious ground rect of schools on the only truly that “the state be can neutral between secular and religious perspectives provision if it does not dominate the key possible education, of so a service as and makes it for people right religious expression to exercise their within public funding.” Soper, the context of Monsma & The S. J. Challenge of Pluralism: and in Five Church State Democra (1997); England permits id., cies 207 see also at 67, 103, 176. teaching religion Id., in state at schools. 142. Even only in France, which is considered “America’s rival in strict separation,” practice “[t]he ness of church-state of contract ing provided by for schools educational services Catholic very widespread.” Ambiguous Glenn, is C. The Embrace: Agencies Government and Faith-Based Schools and Social (2000). forget jurisprudence, And let us not Court’s abortion only which makes us one of six countries that allow abortion point viability. Larsen, Im demand until the See porting Norms from a “Wider Constitutional Civilization”: Rehnquist Foreign Lawrence and the Use of Court’s Interpreta International Law in Domestic Constitutional (2004); Reproduc- tion, 1283, 1320 L. Ohio St. J. Center (June 2004), http:// Rights, Laws tive The World’s Abortion www.reproductiverights.org/pub_fae_abortion_laws.html. following Though cases Roe the Government and amici in (1973), urged the to follow Wade, 410 Court U. S. 113 arguments community’s these fell lead, the international Part of the The McCrudden, ears. A Main? on deaf See Comparative Physician-Assisted Law Suicide Cases Supreme Methodology Court, Law the United States Supreme and Assisted Suicide End of Life: 2000). (C. ed. 125, 129-130 Schneider special laws of United

The Court’s reliance on the opinion. part Kingdom perhaps of its most indefensible history with we share a common It is of course true thát English Kingdom, often consult sources and that we United meaning text a constitutional when asked to discern 18th-century English against backdrop law the of written today, approach applied our legal thought. If and we explained in easy Harmelin an we would be one. As task (1991), Michigan, and the “Cruell 957, 973-974 501 U. S. English provision Declaration of the Punishments” Unusuall punish- originally Rights those meant to describe of was “ punish- Judges’] [the is, those ”—that ments ‘out of Power’ by statute, law or common ments that were not authorized the the or Crown that were nonetheless administered but reasoning, judges. the death Under Crown’s challenge. easily this survive for under-18 offenders would rejected wrongly long a has, however—I think The Court — Eighth Amendment, and originalist approach purely our today. In- takes certainly approach the Court not the that is determining majestic task the undertakes stead, (and standards thereby prescribing) current our Nation’s why look, beyond comprehension we should decency. It is developed, cen- in the country has purpose, to a for that increasing Revolutionary with War—and turies since to the Kingdom’s submission recent speed the United since by continental European jurisprudence courts dominated quite different culture political, and social jurists legal, —a seriously, we directive If we took Court’s our own. from prohibition, jeopardy relaxing our double consider would also recently published re a British Law Commission since the prose rights of the significantly port extend that would acquittal result of a was the appeal an cases where cution to legally Law ruling Commis judge’s incorrect. See that was Appeals, COM Jeopardy LAW and Prosecution sion, Double (Mar. 2001); Spencer, ¶ p. J. 6, 1.19 No. Cm European 142, 204, System Procedures English Criminal 2002). (M. Delmas-Marty Spencer We eds. & J. and n. 239 jury criminal cases right to trial in our also curtail would deep com system’s in our shared despite jury roots since, England permits most serious all but the now law, mon jury. by magistrates a See without to be tried offenders A Procedure: England Wales, in Criminal Feldman, D. 1999). (C. Bradley Study ed. 91, 114-115 Worldwide willingness profess to recon- its should either The Court foreigners, light or views of of the matters sider all these part foreigners’ putting views cease forth else it should law alien To invoke of its decisions. the reasoned basis ignore thinking, it other- agrees with own when it one’s decisionmaking, sophistry.9 but wise, is reasoned “special has Amendment asserts that Justice O’Connor values directly maturing character,” meaning from in that it “draws its Ante, reflects such Nothing in the text society.” at 604-605. of civilized val “maturing certainly applied the we have character —and a distinctive of the Con provisions to other meaning brave new give ues” rationale to Clause. Protection Equal and the stitution, Due Process Clause such as the States (2003); Texas, United 558, See, 571-573 g., e. Lawrence v. 539 U. S. South Parenthood Planned (1996); Virginia, 532-534 v. 518 U. S. of (1992). O’Connor Casey, Justice eastern Pa. 505 U. S. 847-850 confirm the “serve to can at least international consensus asserts that an Ante, American consensus.” genuine of a consonant and reasonableness the wraeasonableness Surely it can also demonstrate at 605. not unless own, they or are its principles Either America’s a consensus. of such Finally, O’Con- world; ways. Justice one have it both cannot follow case because present law in the unnecessary foreign to consult nor finds it responds “[i]t fidelity Court does not lessen our pride to the origins acknowledge Constitution or our in its to express that the rights by affirmation of certain fundamental peoples simply other centrality nations and underscores the rights heritage those same within our own of freedom.” Ante, begin approval with, 578. To I do not believe that peoples” “other nations and should buttress our commit- (what principles any log- ment to American more than should follow) ically disapproval by peoples” “other nations and should importantly, weaken that More commitment. how- flatly ever, the going Court’s statement misdescribes what is Foreign today, here. sources are cited not to underscore “fidelity” our to “pride origins,” the Constitution, our in its heritage.” contrary, [American] and “our they own To the practice— are cited to set aside the centuries-old American practice engaged by large majority a still a of the relevant letting jury States —of a of 12 whether, citizens decide particular youth withholding case, for should be the basis penalty. foreign What these “affirm,” sources rather repudiate, than is the Justices’ own notion of world how the ought be, to and their diktat that it shall be so henceforth attempt downplay parting America. The Court’s significance foreign of its extensive discussion of law is un- convincing. “Acknowledgment” foreign approval no has place legal opinion part in the of this unless it is judgment surely the basis the Court’s it what for —which parades today.

IV injury, To add insult to Court affirms the Missouri Su- preme admonishing Court without even that court its Ibid. . there is “no . . domestic consensus” to be confirmed. But since requirements she believes that announce their own Justices can consensus, proportionality” despite why “moral the absence of would for- to eign law powerful not be relevant If law is judgment? foreign surely enough supplant people, pow- of the American it is judgment proportionality. of moral enough change personal erful assessment

629 precedent flagrant disregard Until of our Stanford. preroga always today, held that “it is this Court’s we have precedents.” Co. overrule one of its State Oil tive alone to (1997). 20 has true even Khan, That been ‍​‌​​‌‌‌​​‌​‌​‌​‌‌​‌​‌​​‌‌‌‌​‌​​​​​​​​‌​​‌​‌‌​​​​‍U. S. “ significantly ha[ve] ‘changes judicial un doctrine’ where prior holding, v. Hatter, dermined” our United States (2001)(quoting States, v. United 64 3d 557, 567 U. S. Hatter F. (CA 1995)), prior holding

647, 650 even where our Fed. rejected “appears line of reasons some other rest on Rodriguez Quijas decisions,” de v. Shearson/American Ex (1989). Today, press, however, the Inc., 490 U. S. silently approves blatantly decision that a state-court rejected controlling precedent. Supreme action, admit that the Missouri

One must Court’s way, indulgent reaction, are, in a under- and this Court’s system upon In a based constitutional and statu- standable. concept tory democratically adopted, the of “law” ordi- text narily particular signifies meaning. words have fixed pronouncement change, and this law does not Court’s Such (confessing it remains authoritative therefore until our prior error) purported has to make of we overrule. The Court Eighth passing a mirror of the Amendment, however, society pe- changing regarding sentiment of American nology. well The lower courts can look into that mirror as necessary years ago as we we saw bears no can; and what they relationship they today. see are not to what Since why looking text, scene, at the same but at a different should judgment? our earlier decision control their philosophically, way run a this is no However sound reality legal system. disregard that, must the new We our constitute extent Amendment decisions something a show of hands on the current Jus- more than penology, they purport personal about tices’ current views snapshot public opin- nothing to be more than a of American (with particular point now ion at a in time the timeframes years). these deci- shortened to a mere 15 We must treat just though they represented prescrip- law, sions real real democratically adopted by people, tions the American as con- (rather clusively sequentially) by than construed this Court. Allowing reinterpret Eighth lower courts Amendment they enough passed whenever decide time for a new has snapshot any leaves Court’s force— this decisions without especially Eighth since Amendment is the “evolution” of our objective longer by no To allow lower determined criteria. “updating” courts we do, to behave as Amend- destroys stability needed, ment as and makes our case law designing an basis citizens and unreliable of laws representatives, by public their and for action officials.

result will crown with be to arbitrariness chaos.

Case Details

Case Name: Roper v. Simmons

Court Name: Supreme Court of the United States

Date Published: Mar 1, 2005

Citation: 543 U.S. 551

Docket Number: 03-633

Court Abbreviation: SCOTUS