The Supreme Court abolished capital punishment for juvenile offenders yesterday,
ruling 5 to 4 that it is unconstitutional to sentence anyone to death for a crime
he or she committed while younger than 18.
In concluding that the death penalty for minors is cruel and unusual punishment,
the court cited a "national consensus" against the practice, along
with medical and social-science evidence that teenagers are too immature to
be held accountable for their crimes to the same extent as adults.
The court said its judgment, which overturned a 1989 ruling that had upheld
the death penalty for 16- and 17-year-old offenders, was also influenced by
a desire to end the United States' international isolation on the issue.
As of yesterday, 20 states, including Virginia, permitted the death penalty
for offenders younger than 18. That is five fewer than allowed the practice
"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," Justice Anthony M. Kennedy wrote
in the opinion for the court.
"Our determination," Kennedy added, "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 ruling was the second time in three years the court had carved out a new
categorical exception to the death penalty, having banned capital punishment
for the moderately mentally retarded in 2002.
It came after 59 people were executed in 2004, the fewest since the Supreme
Court permitted states to resume the death penalty in 1976. That decline is
the result in part of lower murder rates and in part of events such as the exoneration
of some death row inmates by DNA evidence.
Thus, the ruling showed that society's reconsideration of capital punishment
has penetrated the court, with the four liberal justices who joined Kennedy
yesterday -- John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen
G. Breyer -- pushing hardest to change capital punishment with the occasional
help of either Kennedy or his fellow moderate conservative on the court, Sandra
O'Connor, who voted with the four death penalty skeptics and Kennedy in the
2002 case, dissented yesterday, along with the court's conservatives, Chief
Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas.
By striking down yesterday the death sentence a Missouri jury had imposed on
Christopher Simmons -- who was 17 on Sept. 8, 1993, when he broke into Shirley
Crook's house, kidnapped her and threw her, bound and gagged, into a river --
the court also canceled the death sentences of 72 others for crimes they committed
while younger than age 18.
One of those inmates, Shermaine A. Johnson, 26, had been awaiting execution
in Virginia for a rape and murder he committed in 1994 at age 16. Virginia set
a minimum death-penalty eligibility age at 16, but that is now unconstitutional.
Maryland bars the death penalty for those younger than 18; there is no death
penalty in the District.
By far the largest impact of yesterday's ruling will be felt in Texas, where
there are 29 juvenile offenders awaiting execution, and Alabama, where there
are 14. No other state has more than five.
There have been 22 executions of juveniles since 1976, 13 of them in Texas.Kennedy's
opinion rested in large part on the fact that 30 states, including the 12 states
that have no capital punishment, forbid the death penalty for offenders younger
than 18. That number represented an increase of five since the court upheld
the juvenile death penalty in 1989.
The court weighs death penalty laws according to what a 1958 ruling called
the "evolving standards of decency that mark the progress of a maturing
society," and looks to state legislation and jury verdicts to decide whether
a "national consensus" has developed against a previously accepted
In 2002, the court voted 6 to 3 to strike down the death penalty for the moderately
mentally retarded, which it had upheld 5 to 4 in 1989. In the 2002 case, Atkins
v. Virginia, the court noted that the number of death penalty states banning
that practice had grown from two in 1989 to 13 in 2002, while none had gone
the other way.
The recent shift of states against the juvenile death penalty, though less
dramatic than the evidence the court found sufficient in the mental-retardation
case, was enough to carry the day, Kennedy concluded.
For the Supreme Court itself, perhaps the most significant effect of yesterday's
decision is to reaffirm the role of international law in constitutional interpretation.
The European Union, human right lawyers from the United Kingdom and a group
of Nobel Peace laureates had urged the court in friend-of-the-court briefs to
strike down the juvenile death penalty.
In saying that this strong expression of international sentiment "provide[s]
respected and significant confirmation for our own conclusions," Kennedy
lengthened the recent string of decisions in which the court has incorporated
foreign views -- and decisively rejected the arguments of those on the court,
led by Scalia, who say it should consider U.S. law exclusively.
There were actually six votes in Kennedy's favor on that point yesterday, because
in her dissenting opinion O'Connor agreed with Kennedy that international trends
affect the meaning of "cruel and unusual punishment" in modern times.
O'Connor's opinion suggested she came fairly close to joining the majority
entirely. If she were a legislator, O'Connor wrote, "I, too, would be inclined
to support legislation setting a minimum age of 18 in this context."
But, O'Connor wrote, too few states had recently enacted such laws to convince
her that the country generally had "set its face" against the juvenile
Scalia, in a separate dissent joined by Rehnquist and Thomas, took the majority
to task for "proclaim[ing] itself sole arbiter of our Nation's moral standards
-- and in the course of discharging that awesome responsibility purport[ing]
to take guidance from the views of foreign courts and legislatures."
Noting that most countries have more restrictive abortion laws than the United
States, Scalia accused the court of "invok[ing] alien law when it agrees
with one's own thinking, and ignor[ing] it otherwise." He read his opinion
from the bench, a sign of strong disapproval for the court's decision.
Scalia also pointed out that the 18 death-penalty states that limit capital
punishment to offenders 18 and older amount to 47 percent of the 38 death-penalty
"Words have no meaning if the views of less than 50 percent of death penalty
States can constitute a national consensus," he wrote.
For Kennedy, yesterday's opinion appeared to represent a distance traveled
since the 1989 case, in which he voted with Scalia to uphold the juvenile death
As recently as April 2003, the court -- with Kennedy's support -- granted Oklahoma's
request to reinstate the death sentence of a 17-year-old offender after a federal
appeals court had blocked it.
In 2002, the court refused to hear two appeals from younger-than-18 offenders
asking it to reconsider their cases in light of Atkins. Again, Kennedy was in
Even at the Oct. 12 oral argument in the case decided yesterday, Kennedy said
he was "very concerned" that gangs might use juveniles as "hit
men" if there were no death penalty.
But yesterday's packet of opinions contained a brief writing by Stevens, co-signed
by Ginsburg, that patted Kennedy on the back for coming around to their point
If the "great lawyers" of the early republic were on the court today,
Stevens wrote, "I would expect them to join Justice Kennedy's opinion for
The case is Roper v. Simmons, No. 03-633.