JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law in San Diego notes that with the Supreme Court's recent ruling in Roper v. Simmons, the United States has finally joined the community of nations that says the state-sanctioned execution of children is wrong.

Today, the Court repudiated the misguided idea that the United States can pledge to leave no child behind while simultaneously exiling children to the death chamber.

– Dr. William F. Schulz, Executive Director, Amnesty International

Until the Supreme Court's decision in Roper v. Simmons on March 1, 2005, the United States was the only nation in the world that permitted the execution of children under age 18. Only seven countries besides the U.S. have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then, each of those countries either abolished capital punishment for juveniles or made public disavowal of the practice. With the monumental Simmons ruling, the United States has finally joined the community of nations that says the state-sanctioned execution of children is wrong.

Christopher Simmons was a 17-year-old junior in high school when he and a friend burglarized Shirley Crook’s home. When Simmons realized Mrs. Crook had recognized him, he and his friend tied her up, and threw her off a bridge to her death. Simmons, who had never even been arrested before, was described by clinical psychologists who evaluated him as “very immature,” “very impulsive,” and “very susceptible to being manipulated or influenced.” Nevertheless, a Missouri jury sentenced Simmons to death.

The Supreme Court concluded in a 5-4 decision that executing children who were not yet 18 at the time of their crimes constitutes cruel and unusual punishment. “By protecting even those convicted of heinous crimes,” Justice Anthony Kennedy wrote for the majority, “the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.”

In determining which punishments are so disproportionate as to be cruel and unusual, the Court considers “the evolving standards of decency that mark the progress of a maturing society,” a test set forth in the 1958 case of Trop v. Dulles.

The Court had prohibited the execution of 15-year-old offenders in Thompson v. Oklahoma in 1988, but the following year, it upheld the execution of 16- and 17-year-olds in Stanford v. Kentucky. The same day it decided Stanford, the Court also refused to mandate a categorical exemption from the death penalty for the mentally retarded in Penry v. Lynaugh.

Three years ago, the Court overruled Penry, and held in Atkins v. Virginia that the standards of decency that had evolved in the intervening 13 years demonstrated the execution of the mentally retarded is cruel and unusual punishment. In so ruling, the Court found a national consensus against capital punishment for the mentally retarded because by 2002, 30 States prohibited it. The Atkins court also resolved that the impairments of the retarded make it less defensible to impose the death penalty as retribution for past crimes, and less likely that the death penalty will have a real deterrent effect.

Kennedy used the same reasoning in Simmons to find a national consensus against the execution of juveniles under 18. Thirty states now prohibit the juvenile death penalty. That number includes the 12 states that have rejected the death penalty altogether, and 18 that maintain it but expressly exclude juveniles from its reach. The consistent trend, wrote Kennedy, has been toward abolition of the juvenile death penalty.

The International Covenant on Civil and Political Rights (ICCPR) is a treaty ratified by the United States and part of our domestic law under the Supremacy Clause of the Constitution. When the Senate ratified the ICCPR in 1992, it did so subject to a reservation to Article 6(5) of that treaty, which prohibits capital punishment for juveniles.

When Congress enacted the Federal Death Penalty Act in 1994, however, it determined that the death penalty should not extend to juveniles. Kennedy cited that law, as well as the infrequency of the use of capital punishment for juveniles, as further evidence that a national consensus has developed against the juvenile death penalty, notwithstanding the reservation to the ICCPR two years earlier.

Kennedy also took notice of scientific and sociological studies that confirm three general differences between juveniles under 18 and adults, demonstrating that juvenile offenders cannot with reliability be classified among the worst offenders, deserving of the death penalty.

First, youths display a “lack of maturity and an underdeveloped sense of responsibility” that “often result in impetuous and ill-considered actions and decisions.” For that reason, wrote Kennedy, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent.

Second, juveniles are more vulnerable or susceptible to negative influences and peer pressure, and, “lack the freedom that adults have to extricate themselves from a criminogenic setting.”

Third, the character of a juvenile is not as well-formed as that of an adult.

“From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed,” wrote Kennedy.

Thus, the Court held: “When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.”

One of the most notable aspects of its decision in Simmons is the Court’s reference to the law of nations. “Our determination that the death penalty is disproportionate punishment for offenders under 18,” Kennedy wrote, “finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.”

The Court cited the United Nations Convention on the Rights of the Child, which every country in the world except the United States and Somalia has ratified. Article 37 contains an express prohibition on capital punishment for crimes committed by juveniles under 18. What Kennedy failed to mention, however, is that the United States has signed that treaty. Under the Vienna Convention on the Law of Treaties, a country that signs a treaty is forbidden from taking action inconsistent with the object and purpose of the treaty.

Justice Antonin Scalia wrote a dissenting opinion joined by the Chief Justice and Justice Clarence Thomas. Scalia, who fashions himself an “originalist,” interprets the Constitution the way he thinks it would have been interpreted in 1791, when the Bill of Rights was adopted.

When Scalia spoke at Thomas Jefferson School of Law a few years ago, he chided the “evolutionists” on the Court, who would likely agree with Justice Thurgood Marshall’s words: “I do not believe that the meaning of the Constitution was forever fixed at the Philadelphia convention. The true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making.”

In his Simmons dissent, Scalia, still stuck in 1791, characteristically mocked the well-settled doctrine that the ba
n on cruel and unusual punishment should be analyzed in light of “the evolving standards of decency that reflect a maturing society.” Yet, Scalia noted: “At the time the Eighth Amendment was adopted, the death penalty could theoretically be imposed for the crime of a 7-year-old.”

Scalia disagreed with the majority’s analysis of a “national consensus” against the execution of 16- and 17-year-olds because he omitted the 12 States that have outlawed the death penalty altogether from the total number of States that have shunned the juvenile death penalty. Instead of a total of 30 States found by the majority, Scalia counted only 18, less than 50% of the 50 States.

The majority’s reference to international law drew perhaps the strongest rebuke from Scalia, who has never hidden his contempt for the law of nations. “Though the views of our own citizens are essentially irrelevant to the Court’s decision today, the views of other countries and the so-called international community take center stage,” he wrote. Indeed, in a D.C. Circuit Court of Appeals decision Scalia authored as a judge on that court in 1985, he scornfully referred to “the law of nations — the so-called ‘customary international law.'” Scalia disregards well-settled case law and the Restatement of the Foreign Relations Law of the United States, which both recognize customary international law as part of our federal law.

Scalia eschews international contempt for the execution of juveniles in the United States. He also overlooks the refusal of European countries, all of which have abolished the death penalty, to turn over prisoners suspected of terrorism to the United States for fear they will be executed. And Scalia apparently ignores the disgust felt throughout the world for the torture committed by U.S. forces in Iraq, Afghanistan and Guantánamo Bay.

As a result of Roper v. Simmons, the lives of 72 people who had not attained age 18 when they committed their crimes will be saved. Forty percent of them were sentenced to death in Bush’s home state. A study in Texas found that the current capital punishment system is an outgrowth of the “legacy of slavery.”

The Supreme Court fortuitously issued its landmark juvenile death penalty decision on the National Day for the Abolition of the Death Penalty, which falls each year on March 1. By outlawing the death penalty for the mentally retarded, and now for juveniles under 18, the Court may be taking small steps toward the eventual abolition of capital punishment.

With ever increasing numbers of death row inmates being exonerated, public sentiment favoring the death penalty is waning. The Marquis de Lafayette said nearly 200 years ago, “I shall ask for the abolition of the punishment of death until I have the infallibility of human judgment demonstrated to me.”

We can hope that one day soon, the United States, which remains the only Western democracy that still sanctions capital punishment, will abolish it. As Supreme Court Justice Arthur J. Goldberg wrote in 1976: “The deliberate institutionalized taking of human life by the state is the greatest conceivable degradation to the dignity of the human personality.”

Marjorie Cohn, a professor at Thomas Jefferson School of Law, is executive vice president of the National Lawyers Guild, and the U.S. representative to the American Association of Jurists.

——–