Oral argument: Wednesday, October 13, 2004
Appealed from: Missouri Supreme Court
Criminal Procedure, Minimum Age for Capital Punishment, Cruel and Unusual Punishment, Eighth Amendment, Fourteenth Amendment
Roper v. Simmons presents the Supreme Court with two questions: whether or not the execution of those who were sixteen or seventeen at the time of a crime is "cruel and unusual" and whether the lower courts may analyze evolving standards in order to determine the former. The Court will likely rely upon the principles in Atkins to determine whether or not to overturn its conflicting decision in Stanford v. Kentucky (492 U.S. 361 (1989)). Legislative activity since Stanford has significantly changed, and this change is bolstered by the views of germane organizations and the decreasing number of states imposing the death penalty on juvenile offenders. See Id. The Court will thus determine whether the weight of this evidence is enough to overcome the goals served by the death penalty.
1. Once the Supreme Court holds that a particular punishment is not "cruel and unusual" and thus barred by the Eighth and Fourteenth Amendments, can a lower court reach a contrary decision based on its own analysis of evolving standards?
2. Is the imposition of the death penalty on a person who commits a murder at age seventeen "cruel and unusual," and thus barred by the Eighth and Fourteenth Amendments?
Christopher Simmons was tried, convicted, and sentenced to death for first degree murder for a crime that he committed at age 17. He appealed as of right to the Missouri Supreme Court, which exercises exclusive jurisdiction in death penalty case. In 1997, the Missouri Supreme Court affirmed the conviction and the sentence. State v. Simmons, 944 S.W.2d 165, 169 (Mo. 1997). On his initial appeal, Simmons could not argue that his youth prohibited his execution because the United States Supreme Court held in 1989 that there was no national consensus against the execution of young adults who were sixteen or seventeen years old at the time of their crimes, and that, as a result, executing juveniles was not cruel and unusual punishment under the Eighth Amendment. See Simmons v. Roper, 112 S.W.3d 397, 399 (Mo. 2003) (en banc) (discussing Stanford v. Kentucky, 492 U.S. 361 (1989)). The Missouri Supreme Court thus affirmed the Circuit Court of Jefferson County, Missouri on both the conviction and death sentence. See id.
In 2002, the United States Supreme Court reversed Penry v. Lynaugh, 492 U.S. 302 (1989), which held that a national consensus did not exist against execution of the mentally retarded. Atkins v. Virginia, 536 U.S. 304 (2002). In Atkins, the Supreme Court concluded that such a consensus had developed in the thirteen years since Penry and that executing the mentally retarded violates the Eighth Amendment. Id. at 321. Hoping that the Supreme Court's ruling in Atkins might signal a parallel shift in the Court's view toward the execution of juvenile offenders, Simmons appeared before the Missouri Supreme Court again in 2003 on a writ of habeas corpus, arguing that a national consensus opposing the execution of sixteen- and seventeen-year-old offenders had emerged since Stanford v. Kentucky. Simmons, 112 S.W.3d at 399. The Missouri Supreme Court agreed, reasoning that "the Supreme Court would today hold such executions are prohibited by the Eighth and Fourteenth Amendments." Id. at 400.
The United States Supreme Court agreed to hear Simmons' case in order to address two specific issues. First, the Court will consider whether a lower court may contradict a previous ruling by the Supreme Court. Specifically, the Court will decide whether it was permissible for the Missouri Supreme Court to conclude that the execution of juvenile offenders is cruel and unusual punishment and violates the Eighth Amendment, in direct contradiction to the Supreme Court's ruling in Stanford v. Kentucky. Second, the Supreme Court will decide for itself whether a national consensus now opposes the execution of offenders younger than eighteen years and, therefore, whether the practice now violates the Eighth Amendment's prohibition against cruel and unusual punishment.
The first documented teenager put to death in the United States was young Thomas Grauger, hanged in 1684 for having sexual intercourse with a horse and a cow. History of the Juvenile Death Penalty: Key Events in the United States, Wash. Post, July 19, 1988, at Z15. Since then, American society has struggled with the question of whether a teenager is capable of possessing criminal culpability warranting the death penalty. Often, the juvenile death penalty involves arguments of morality. Is it right to execute a juvenile? Does the juvenile death penalty stand in conflict with the standards of decency in today's society? These questions circle around in an increasingly global society, as America remains one of the last countries with a juvenile death penalty. Thus, the Supreme Court's decision in Roper v. Simmons will significantly impact not only society's young people, but also America's position and status in the world.
One important factor in the Court's analysis will be whether teenagers are fully capable of understanding the wrongfulness and the consequences of their actions. Opponents of the juvenile death penalty argue that teenagers can likely be rehabilitated. See Sasha Abramsky, Taking Juveniles Off Death Row, 15 Am. Prospect, July 1, 2004, at A16. Scientists had previously thought that brain development was complete by three or four years old. See id. Studies have since shown that brain development continues through adolescence and sometimes into early adulthood. See id. A small area of the frontal lobe of the brain, the part that controls reason, is now thought to develop last and may directly affect criminal culpability. See Paul Davies, Psychiatrists Question Death For Teen Killers, Wall St. J., May 26, 2004, at B1. Thus, these new studies suggest that teenagers may not understand the criminal qualities of their actions and arguably should not be punished as if they do. Proponents of the juvenile death penalty criticize these studies as "junk science" put forth by biased individuals using science to promote their political ends. See id. Indeed, they argue that teenagers have the ability to realize their actions are wrong, evidenced by the fact that teens often try to cover up and destroy evidence to avoid getting caught. See id.
In addition to psychological debates about the criminal culpability of teenagers, the Court will likely examine national trends in the United States. These trends show that the states, even those with a juvenile death penalty, are extremely reluctant to execute a minor. While seven people in the Unites States were sent to death row in 2000 for crimes they committed as minors, only two juvenile offenders were sentenced to death in 2003. Sasha Abramsky, Taking Juveniles Off Death Row, 15 Am. Prospect, July 1, 2004, at A16. Since 1976, only seven states have actually executed a juvenile, and many states that allow the execution of juvenile offenders have not executed a juvenile in decades. Id. For example, Florida has not sentenced a juvenile offender to death since 1954; Arizona has utilized the juvenile death penalty since 1934; and Alabama has not executed a juvenile since 1961. Id. These trends reflect the strong public uneasiness with the juvenile death penalty, present even in states where the juvenile death penalty still legally exists. Id.
A decision that the juvenile death penalty does not constitute cruel and unusual punishment may deter future teen criminal acts. Proponents of the juvenile death penalty argue that if juveniles know they may be executed for murder, then they will be less likely to commit the crimes. See, e.g., Paul Reidinger, The Death Row Kids, 75 A.B.A. J. 78, 81 (1989). For example, in Roper, Christopher Simmons told his friends they would get off because they were minors. Simmons v. Roper, 112 S.W.3d 397, 399 (Mo. 2003) (en banc). If Simmons had initially known he could face the death penalty for his crime, perhaps he would have chosen not to go through with his plan.
However, the Court's decision to uphold the practice could also contribute to the United States' isolationism because many countries view the juvenile death penalty as a violation of human rights. See Connie de la Vega, Going It Alone, Am. Prospect, July 1, 2004, at A22. Indeed, most of Western Europe has abolished the death penalty and each country that hopes to join the European Union ("EU") must concurrently join the European Convention for the Protection of Human Rights and Fundamental Freedoms, which, among other things, forbids the death penalty. See id. In Roper, the EU and twenty-three other nations have filed a brief supporting the Missouri Supreme Court's decision that the juvenile death penalty is cruel and unusual punishment. See Brief of Amici Curiae the European Union and Members of the International Community in Support of Respondent, 124 S.Ct. 2198 (No. 03-633) (2004). Thus, upholding the juvenile death penalty could damage the United States' credibility in the international arena. It might become more difficult for the United States to advocate democracy and human rights in other countries if many nations perceive the Unites States as disregarding those norms itself. In the current global climate, United States ability to remain allied with other nations is increasingly important.
On the other hand, if the Supreme Court strikes down the juvenile death penalty, the arbitrary line (age eighteen) separating juveniles from adults may potentially create unfair situations. For example,
One may envision a scenario in which two individuals, one aged eighteen and one month and the other aged seventeen and nine months, commit a grisly murder. If Stanford were to be overturned, the eighteen-year-old would be eligible for the death penalty in a state which allows for capital punishment, while the seventeen-year-old, who may have more responsibility for the murder, and thus more deserving of punishment, would be exempt from death. It certainly seems unfair that an individual who commits a heinous crime may escape death merely because he has yet to reach his eighteenth birthday, while another individual possessing equal, or even less culpability, may receive a death sentence.
Audra M. Bogdanski, Relying on Atkins v. Virginia as Precedent to Find the Juvenile Death Penalty Unconstitutional: Perpetuating Bad Precedent? 87 Marq. L. Rev. 603, 634 (Spring 2004). Thus, proponents of the juvenile death penalty argue that case-by-case analysis is the only just method. Although this may be judicially inefficient, it would alleviate distrust caused by an arbitrary bright line set at age eighteen.
In this case, the Supreme Court will also address an important issue of state versus federal judicial power. Specifically, the Court will determine whether the Missouri Supreme Court may base its decision on its prediction of what the United States Supreme Court would or should hold. States are historically considered the experimental zones of the country. Thus, it is important for them to be at the forefront of policy. It is equally important for states to preserve some of their autonomy. Each state has its own culture, ideals, and policy goals to implement. The Supreme Court's decision in Roper will affect how far states can deviate from federal rulings. Although the Missouri Supreme Court did not explicitly violate the Supreme Court's ruling, the Supreme Court might use the Roper case to reprimand the state court for asserting the direction in which it thought a federal constitutional issue should go. On the other hand, the Supreme Court would be unable to overrule itself if state courts could not point out deficiencies in the Supreme Court's earlier rulings and alter the Court of changes in societal needs. Important rulings involving segregation, voting, and the death penalty itself have been the results of the Supreme Court reevaluating its earlier outlook in response to lower court rulings.
In light of the notable scarcity, if not complete absence, of case law indicating otherwise, lower courts should be bound by the Supreme Court's Eighth Amendment precedents. They should not be free to establish a system of differing constitutional rules reflecting their own changing and subjective views of what constitutes "cruel and unusual punishment." Ultimately, the Supreme Court alone should have the power to overrule its own holdings.
Petitioner's argument that decisions of the Supreme Court are the "supreme law of the land" is supported by several cases, as well as the Constitution itself. See U.S. Const. art. VI; Cooper v. Aaron, 358 U.S. 1, 18 (1958). Primarily, the case law unambiguously indicates the staunch principle that "it is [the Supreme] Court's prerogative alone to overrule one of its precedents," not a decision for an inferior state or federal court. State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). In State Oil Co., the Supreme Court reviewed a Seventh Circuit decision that followed Supreme Court precedent, even though the decision followed was markedly outdated. In the Seventh Circuit case, Judge Posner noted, "despite all its infirmities, its increasingly wobbly, moth-eaten foundations, Albrecht has not been expressly overruled . . .. And the Supreme Court has told the lower federal courts, in increasingly emphatic, even strident, terms, not to anticipate an overruling of a decision by the Court; we are to leave the overruling to the Court itself." Khan v. State Oil Co., 93 F. 3d. 1358, 1363 (7th Cir. 1996). In the end, the Supreme Court overruled its prior holding, but noted the adroitness of the Seventh Circuit's respect for the principle of stare decisis. State Oil Co., 522 U.S. at 20.
Stare decisis, the principle that courts will follow the rulings of previous courts, promotes predictability, fosters reliance on judicial decisions, and contributes to the integrity of the judicial process. The Supreme Court is even reluctant to overrule its own decisions itself: "[w]e approach the reconsideration of decisions of this Court with the utmost caution. Stare decisis reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right." Id. (quoting Agostini v. Felton, 521 U.S. 203, 235 (1997)). In light of such a sentiment, it is implausible that the Court will accept a lower court's decision that, in effect, would do the same. The Missouri Supreme Court's decision to essentially overrule the Supreme Court decision in Stanford v. Kentucky is inconsistent with the principles placing high value on Supreme Court precedent and stare decisis in general. Adding to the likelihood that Petitioner's argument will be accepted, Respondent acknowledges that the Supreme Court's decisions should not be overruled by lower courts and that stare decisis is not a bar to reconsideration by the Supreme Court of its own decisions. Respondent's brief notes Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989). In that case, the Court of Appeals had reached a judgment contrary to the Supreme Court's decision in Wilko v. Swan, 346 U.S. 427 (1953). Although the Court noted that the court of appeals should not have renounced Wilko on its own authority, the Court itself chose to overrule Wilko.
If lower courts could easily ignore decisions of the Supreme Court, the authority and ultimate purpose of the nation's highest court would be destroyed. Overall, it seems that if all lower courts were able to make decisions regardless of Supreme Court precedent, there would be no use for the Court to make decisions at all. Consensus on constitutional issues would ultimately be lacking. As noted in State Oil Co., it is unnecessary for lower courts to overrule Supreme Court precedent to effect change when such may be due. Also, state courts may interpret the statutes, constitution, or common law of their states in a manner that creates additional rights for offenders; however, such should be conducted without reference to the federal Constitution. See Allen v. State, 636 So.2d 494 (Fla. 1994).
Nearly fifteen years ago, the Supreme Court ruled that the execution of those sixteen and seventeen years old when they committed a crime is not "cruel and unusual." Stanford v. Kentucky, 492 U.S. 361 (1986). In Roper v. Simmons, the Court will revisit Stanford to determine if a significant portion of society, or a "national consensus," now finds the execution of persons seventeen and younger when they committed a crime unacceptable. See Atkins v. Virginia, 536 U.S. 304, 317 (2002); Stanford, 492 U.S. at 381 (O'Connor, J. concurring). Given a consistent shift among state legislatures toward prohibiting application of the death penalty for sixteen- and seventeen-year—old defendants, and fewer death-sentences being imposed upon those convicted for crimes committed as juveniles, the Court will likely find that such punishments now violate the Eighth Amendment.
Cruel and Unusual Punishment
In Trop v. Dulles, the Supreme Court expressly stated that a punishment will be considered "cruel and unusual" in violation of the Eighth Amendment according to "evolving standards of decency." 356 U.S. 86, 101 (1958). This standard for analyzing "cruel and unusual" punishments is meant to recognize society's ever-changing and maturing notions of acceptable penalties. See Gregg v. Georgia, 428 U.S. 153, 171 (1976). The Court has since reshaped this inquiry into a quest to find a "national consensus," meaning that contemporary minds believe such punishments are offensive. See Atkins, 536 U.S. at 317; Stanford, 492 U.S. at 381 (O'Connor, J. concurring). Thus, in Roper, the Court must find a national consensus against imposing the death penalty upon those younger than seventeen in order to hold such executions to be "cruel and unusual."
The Court relies on the "most reliable objective evidence of contemporary values" to establish the existence of a "national consensus." Atkins, 536 U.S. at 312 (quoting Penry v. Lynaugh, 492 U.S. 302, 331 (1989)). This objective evidence is largely drawn from decisions of state legislatures, but also includes the frequency with which the death penalty is imposed, the views of respectable national and international organizations, and the Court's own assessment of how well death penalty goals are achieved. See Atkins, 536 U.S. at 313; Thompson v. Oklahoma, 487 U.S. 815, 822-23 (1988).
A. Legislative Activity
In Stanford, the Supreme Court expressly acknowledged that statutes enacted by the country's legislatures are the best reflection of a national consensus. Stanford, 492 U.S. at 370-71. When Stanford was decided in 1986, thirty-seven states permitted the death penalty, and of those thirty-seven, eleven prohibited the execution of persons younger than eighteen when they committed a crime. Id. In counting the number of jurisdictions that prohibited such executions, the Court in Stanford refused to consider those jurisdictions that did not have the death penalty available as a punishment in their statutes. Id. at 371 n. 2. Atkins solidified this exclusion since it also failed to account for those jurisdictions that lack a death penalty. 536 U.S. at 314-15. Yet, Atkins further states that the number of states prohibiting a punishment is not significant, only the "consistency of the direction of change." Id. at 315.
By relying more heavily on consistency rather than quantity, the Atkins Court considered the actions taken by legislatures in addition to enactments. See id. (noting that three states had passed bills prohibiting the execution of mentally retarded persons). With this looser concept of legislative activity, Respondent persuasively argues that, since Stanford, ten jurisdictions have either prohibited, or taken significant steps toward prohibiting, the execution of offenders who were sixteen- and seventeen-year-olds when they committed a crime. Resp. Brief 38-41. This trend is strengthened by the fact that eleven death penalty jurisdictions already prohibit the execution of sixteen- and seventeen-year-olds.
Petitioner contends, however, that four other states moved in the opposite direction. Pet. Brief 24-27. The changes in two states, Arizona and Florida, do not involve explicit changes to the minimum age for the death penalty. Resp. Brief 41-42 n. 85. The other two states, Virginia and Missouri, set the minimum age for the death penalty at sixteen following Stanford. Pet. Brief 24-27 (noting the year such statutes were enacted: Missouri in 1990; Virginia in 2000). Though these states have given explicit authorization to execute those who committed a crime as juveniles, Respondent persuasively counterargues that these states merely codified existing policies, and did not actually lower the minimum age for execution. Resp. Brief 41-42 n. 85.
The Supreme Court's reliance on a looser standard for determining legislative actions in Atkins is more likely to benefit Respondent by allowing him to show that twenty-one of the thirty-nine (54%) death penalty jurisdictions have prohibited the execution of those sixteen and seventeen years old when they committed a crime, a proportion similar to that which satisfied the Court in Atkins. See 536 U.S. at 342 (Scalia, J. dissenting) (noting that the Court found 47% of death penalty states prohibited the execution of the mentally retarded and that 56% were going in the same direction if the federal government and the three states that passed bills prohibiting the execution of the mentally retarded were considered). The Court will likely find the changes in the four states upon which Petitioner relies to be too minimal to affect the consistent direction of change against executing juvenile offenders. See id. at 315.
B. Imposition of the Death Penalty
Not only did the Atkins Court consider that legislative activity of numerous jurisdictions indicated a national consensus against the execution of the mentally retarded, but also the infrequency of such executions. Atkins, 536 U.S. at 316. The Court reasoned that for some death penalty states, there is little need to enact a prohibition against executing the mentally retarded because such persons never receive the death penalty. Id. In finding a national consensus, the Court noted that only five of the twenty-one states that permitted the execution of the mentally retarded had actually executed a mentally retarded person since Penry. Id.
Unlike Atkins, Stanford analyzed the percentage of offenders younger than eighteen years old when they committed a crime to the total number of executions carried out during the years leading up to 1986. Stanford, 492 U.S. at 373-74. Under this percentage scheme, Petitioner argues that the execution of those sixteen and seventeen years old when they committed a crime is 20% more likely now than at the time of Stanford. Pet. Brief 30-32 (noting that 2.4% of all executions between 1973 and 2003 were juvenile offenders, but juvenile offenders accounted for 2% of all executions between 1642 and 1986). This data weighs against finding a national consensus against executing those who were sixteen or seventeen at the time of a crime.
On the other hand, Respondent simply relies on the approach taken in Atkins, which examines the number of states actually executing those who were under the age of eighteen at the time of a crime. Atkins, 536 U.S. at 316. This scheme appears to show that a national consensus against executing those who were sixteen or seventeen at the time of a crime does exist. Respondent notes that since 1973 only seven states have executed those younger than eighteen at the time of a crime, and in the last ten years only three states have carried out such executions. Resp. Brief 44. In addition, Respondent argues that juries are now more reluctant to issue a death sentence against defendants who were sixteen or seventeen at the time of a crime, and empirical evidence shows that fewer death sentences are being imposed upon juvenile offenders. Resp. Brief 46 (noting that death sentences have steadily decreased from fourteen in 1999 to one in 2000).
Though the Court could rely upon either the standard issued in Stanford or that utilized in Atkins, it will likely find that there is a national consensus against imposing the death penalty upon offenders who were sixteen or seventeen at the time of a crime. As the Missouri Supreme Court suggested in its analysis, the number of juvenile executions, even when considered as a proportion to all executions, can be misleading because three states account for nearly all such executions since Stanford. Simmons v. Roper, 112 S.W.3d 397, 409 (Mo. 2003) (en banc). As a result, the Supreme Court will likely find that the nation as a whole is less likely to impose the death penalty upon those who were sixteen or seventeen at the time of a crime, even when it is not prohibited by the legislature.
C. National and International Policy
Though Stanford refused to consider the views of international and national organizations, the Atkins Court was persuaded by those organizations' consistency in opposing the execution of the mentally retarded. Atkins, 536 U.S. at 316 n. 21. Likewise, many similar organizations have filed amicus briefs opposing the execution of those who were sixteen or seventeen at the time of a crime. Atkins limited the value of these views to the fact that they all confirmed the legislative evidence of a national consensus against executing the mentally retarded, which will likely be the Supreme Court's treatment of the amicus briefs in Roper. Id.
D. Death Penalty Aims
In Enmund v. Florida, the Supreme Court stated that, if a punishment is to survive Eight Amendment scrutiny, it must measurably serve one or both of the recognized social purposes of the death penalty–retribution and deterrence. 458 U.S. at 798. The Atkins Court found that the diminished capacity of mentally retarded persons reduces their personal culpability for criminal sanctions, which renders such persons undeserving of the death penalty. 536 U.S. at 318-19. Also, the mentally retarded are less likely to learn from their mistakes or even control their conduct; therefore, the imposition of the death penalty fails to have a sufficient deterrence effect. Id. at 319-20.
Respondent attempted to introduce psychological and neurological evidence showing that adolescents, including sixteen- and seventeen-year-olds, lack sufficient brain and behavioral development to possess the requisite culpability. Resp. Brief 16-24. Though the Court recognized that juveniles are less experienced, educated, and intelligent than adults in Thompson, the Roper Court is unlikely to find the deficiencies of juveniles as great as those of the mentally retarded. 487 U.S. at 835. Furthermore, Stanford's explicit disapproval of scientific proof suggesting that juveniles are less culpable indicates that the Court is likely to find retribution can be sufficiently served. Finally, juveniles will likely be found to be suitably deterred by the threat of the death penalty, especially since the same cognitive and behavioral abilities at issue in Stanford are under consideration in Roper. See Atkins, 536 U.S. at 320.
- Valerie Gross
- Margaret Roth
- Kenda Stewart
- Geoffrey G. Young