Roper v. Simmons and juvenile capital punishment constitutionality

¶ … adults have an episode or two from their youth of which they are not extremely proud. Perhaps it involved sneaking a beer (or several beers) at a social function, or lying about one's plans for the evening to get permission to attend a questionable event. Most kids have learned the hard way on at least a few experiences -- speeding, missing curfew, or cheating on a test. Younger children are taught that taking a pack of gum from the store without paying for it is wrong, and that there are certain words on television that they shouldn't repeat in school. We accept these facts of life fairly easily; minors aren't mentally or socially equipped to know how they should behave all of the time. Children have to be taught about social mores, and teenagers test authority without considering the consequences in a way that most adults would. Lawbreaking -- whether it is noisy parties, underage drinking, or any one of a hundred other risky behaviors -- is usually attributed, in youth, to "growing up." A few minor brushes with the law, teachers, or parents are seen as a part of learning and maturing.

Now imagine that an attempted robbery went wrong, and that the victim was also kidnapped and brutally drowned as a result. Shirley Cook had her hands tied behind her back by her assailant, who then flung her off of a bridge and watched her drown. She knew her assailant; he was her neighbor. He was also seventeen years old at the time of the crime. (Roper v. Simmons 2005, 540 U.S. 1160).

Does the leniency our society tends to grant in the former situations with regard to youth also apply to such heinous crimes as that of Christopher Simmons, the convicted teen in the second paragraph? Are teenagers who commit murder, rape, and other "adult" crimes more accountable for their actions than their counterparts who are sneaking cigarettes and beer? Many in the criminal justice system argue that an "adult" crime deserves an "adult" punishment, and that if minors commit what would otherwise be a capital offense deserving of the death penalty, they deserve no special treatment or bias with regard to their sentencing based solely on their age.

ABSTRACT

This paper will examine the death penalty as applied to juveniles (defined by law, in this case, as individuals under the age of 18). This policy, per the above-cited Supreme Court case, has been declared unconstitutional according to the Eighth Amendment prohibition of cruel and unusual punishment and is consequently illegal today. Opponents of the decision believe that the policy is lax on criminal behavior by minors and that a punishment which is punishable by death when committed at age eighteen should also be punishable by death at age seventeen. Those in favor of the decision, who tend to favor the abolition of the death penalty itself, say that prohibiting the execution of minors helps legitimize the United States justice system in the international community, as well as strengthens cooperation and opinion of the United States in general in this realm. These advocates of banning juvenile executions cite medical evidence as well as societal norms that separate youths from adults in many ways. The tension between these two schools of thought is high, and although Roper has set Supreme Court precedent for the time being, the history of the death penalty and its application in the United States. is erratic and unpredictable. Although the issue is "settled" by precedent for the time being, it is still a very current and germane topic to the criminal justice system and should be examined in more thorough detail.

The application and validity of the juvenile death penalty will be examined here, and the conclusion that the prohibition of juvenile executions is not only constitutional, but pragmatic and effective in influencing international interactions will be demonstrated. First, both sides of the argument will be presented, including each sides' evidence -- both empirical and subjective -- and a brief, general overview of the death penalty as applied in the United States. This overview will include a timeline of international consensus with regard to the death penalty and its application, especially to as applied minors. After exploring the issue and its history, a few points will be made as to why this topic is important to the current criminal justice system and the nation as a whole. Next, an explanation of the competing theories behind the policies of Roper regarding the unconstitutionality of the juvenile death penalty will be introduced -- opponents of the decision cite the retribution and deterrent theory of punishment and criminal justice, while advocates of the decision rely heavily on international law, concepts of punishment being related to culpability and the jus cogens theory.

The impacts of this decision on the criminal justice system as a whole will be examined; specifically the detrimental influence that executing minors had on international opinion of the United States, and, in turn, on international cooperation with regard to criminal justice matters. Limitations of examining the issue solely from a criminal justice or any single disciplinary theory will be demonstrated via the interdisciplinary approach required to fully examine the issue (encompassing the legal and criminal justice system, international relations, medical science and psychology, among other fields), but an attempt will be made to examine this policy in light of all available information. Finally, the rectitude of prohibiting juvenile capital punishment will be asserted.

THE ARGUMENT:

Balancing the need for proportionality with international standards

An essential facet of the criminal justice system is the concept that punishment is neither arbitrary nor excessive. To do otherwise would be to move away from the democratic ideals which are so treasured in our nation. The proportionality analysis for analyzing the policies of the criminal justice system examines the methods of assigning punishment to acts. The proportionality analysis has two prongs; the first determines harm and blame, essentially assessing the punishment that the crime warrants:

Along the culpability axis, the Court determines whether the criminal defendant is less culpable than, or as culpable as, a paradigmatic first-degree murderer. Age at the time of the crime, mental retardation, or lack of intent to kill could all indicate lower culpability, while 'reckless indifference to the value of human life,' for example, could indicate culpability equal to that of a first degree murderer. Along the harm axis, the Court examines whether the criminal defendant has committed a crime less serious than murder, such as rape or robbery. (Lee 2005, 690-91)

This idea of different levels of blame for different situations is what separates accidents such as vehicular manslaughter from intentional, planned murder. This prong of the proportionality analysis determines if the crime warrants consideration of the death penalty at all, regardless of the condition of the accused -- in this analysis, the harm and blame tests must be met before the second prong is employed.

Assuming that the harm and blame associated with the crime are assessed as deserving of capital punishment, the second prong of the probability test moves to examining retribution or deterrence, the primary purposes of the capital punishment option. Retribution may serve as an equalizer between victims and assailants, or, in the case where no victims are living, serves a stabilizing purpose in a society that desires justice. Lee notes that "the retribution prong of this inquiry is frequently redundant, given that the Court has not given us any reason to think that its assessment of relative harm and culpability of the class of criminals will differ in any way from its assessment of whether these people will get their 'just deserts' by being punished to death" (Lee 2005, p. 691).

Other examinations of these portions of the proportionality analysis assert that "some capital defendants may not be culpable enough to warrant the death penalty" and that "crimes that do not involve the taking of human life are per se ineligible for the death penalty because such a sentence would be excessive" (Izutsu 2005, p. 1000). If these situations are the case, the proportionality test fails to justify capital punishment. However, there is an occasional case in which all of these criteria -- harm, blame, and a need for retribution -- are met, the final prong of the proportionality analysis is utilized. It is this fourth step, of deterrence, that is most affected by the mental competence or cognitive abilities of the accused, and as such, it is this step is the most difficult to assess and is the most controversial.

The concept of deterrence is the most-often cited positive effect of capital punishment. Proponents of capital punishment claim that the knowledge that the death penalty is an option if punished for a crime, the urge to commit a capital offense will be negated by the instinct toward self-preservation and as such, will deter crimes which warrant such punishment. As Lee notes, "capital punishment can serve as a deterrent only when murder is the result of premeditation and deliberation," otherwise it is "nothing more than the purposeless and needless imposition of pain and suffering" (Lee 2005, p. 691). Izutsu also notes that this concept assumes that penological justification "such as retribution or deterrence" in order to prevent the "gratuitous infliction of suffering" (Izutsu 2005, p. 1000).

This theory, as a justification for the capital punishment, is a strong one. However, we are examining this theory as a justification for the execution of juveniles -- and in doing so, the fallibility of the proportionality theory becomes evident. One of the primary objections of opponents to the ban on capital punishment for minors is that eliminating the death penalty as an option for certain groups will lessen its deterrent capabilities. This argument has been employed by critics who cite the rare case in which a defendant successfully appeared to be mentally retarded or acted insane for purposes of an insanity defense, or otherwise disqualified himself from consideration for the death penalty.

The problem with this claim of reduced deterrence by eliminating capital punishment options for certain groups is fairly obvious; "exempting a group of criminals from the possibility of capital punishment will not reduced the deterrence value of capital punishment for other groups" (Lee 2005, p. 692). This argument is especially faulty with regard to deterrence among minors, since it is essentially impossible to "fake" one's own age, as opposed to insanity or mental retardation, which are difficult to pretend, but possible by a well-informed individual. Opponents who claim that the removal of the capital punishment option will encourage minors to commit capital offenses ignore the above evidence regarding the lack of such cognitive, mature thinking, reasoning, and premeditation skills possessed by minors.

Even in light of the proportionality analysis utilized by the opponents of a ban on the juvenile death penalty, the benefits of capital punishment are not sufficient to justify its implementation. Even if the crime fulfills the harm and blame prongs and is determined to deserve equal retribution, the deterrent prong of the analysis cannot be fulfilled when applying the theory to juveniles. A medically asserted diminished capacity for judging consequences as well as the increased feelings of invulnerability and immortality associated with youth negate any deterrent effect that capital punishment might have.

Having discounted the theory most often used by proponents of capital punishment for minors, we will shift to analyzing the theory most often utilized in favor of the prohibition codified by Roper. International law norms, including treaties to which the United States is a signatory, prohibit the use of capital punishment against minors. In terms of human rights, the United States is in the company of nations such as Pakistan, Nigeria, Saudi Arabia, the Democratic Republic of the Congo, Iran, and China as these nations are the only ones in which a report of juvenile capital punishment has been made since the early 1990s, and in each case only once (Brillante 2004). These nations either "adamantly denied any execution took place or that a minor was sentenced to death...[meaning that] only the United States has not accepted the norm against the execution of juvenile offenders" (ibid., p. 1291). While Brillante's article was published before the Roper ban on juvenile capital punishment in the United States., it highlights an important distinction with regard to international human rights norms. It is also valid to remember that in light of the Supreme Court's past vacillation in death penalty jurisprudence, the issue is far from settled.

International law is not seen as a binding precedent in our Supreme Court's jurisprudence; in fact, in the Roper case, one of the Supreme Court cases most reliant on international law thus far, the opinion made a point on various occasions to note that although there were international norms which were a factor in the decision, these international standards were not being seen as binding or as judicial precedent (540 U.S. 160). With that in mind, the United States has a long relationship with international law, starting years before the vital role played in the founding of the United Nations and in the Universal Declaration of Human Rights, issued as international standards in 1948.

As early as 1895, the Supreme Court acknowledged the influential role that international law played in United States jurisprudence, especially in the federal realm: "International law...is part of our law, and must be ascertained and administered by the courts of justice, as often as such questions are presented in litigation between man and man, duly submitted to their determination" (Hilton v. Guyot, 1895, 159 U.S. 113 at 163). From this determination through the Universal Declaration of Human Rights in the post-World War II era to the controversies surrounding potential United States ratifications of international human rights treaties during the late twentieth century, international law has played an important role in United States jurisprudence for over a century.

Despite the Supreme Court's repeated claims that international law cannot bind the decisions issued by the United States' highest interpreters of the law, the fact remains that international law is a highly influential tool in affecting policy and its interpretation. Rules of war, prohibitions against genocide, explicit discrimination based on gender, race, or ethnicity, and "crimes against nature" are all applicable -- and obeyed -- in the United States. Consequences of not complying with international laws include those outlined in the above section, from noncooperation in international relations matters to international scorn and disdain.

Despite the late ratification of the ICCPR and the lack of ratification of the Convention on the Rights of the Child by the United States, there does exist customary international law know as "jus cogens." It is defined as "a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character" (Vienna Convention, supra note 33, at art. 53). Jus cogens laws are not simple international norms, but are distinguished from such because they are "based on natural law propositions applicable to all legal systems, all persons, or the system of international law.." (Cited in Brillante 2004, p. 1296) As such, they are not detrimentally effected by judicial spats over paternity, or employment discrimination, or tax law, but instead, jus cogens laws concern themselves with the most noble of the international laws, the natural laws that apply to all humans and are best regulated by and examined in the international sphere.

Article 53 of the Vienna Convention sets out four criteria for identifying peremptory norms, which are considered to be law in themselves whether or not a nation has specifically acknowledged them as such (jus cogens norms): that the norm is (1) one of general international law; (2) accepted by the international community as a whole; (3) immune from derogation; and (4) modifiable only by a new norm having the same status. (Vienna Convention article 53 note 264). How do these four criteria match up to the current international standard of prohibiting minor executions? Let's examine the United States' prohibition on the juvenile death penalty in the framework for a jus cogens norm.

The first step is to establish the law as a general norm in international law; the juvenile death penalty has met the four criteria as follows: the original issue, the prohibition on juveniles tried and punished as adults, has become a norm of general international law; treaty law, decisions by the IACHR and the United Nations General Assembly. Resolutions passed and ratified assert that there may be no derogation from this treaty; it is binding. The second step, of gaining acceptance from the international community as a whole,.has also been accomplished. Only eight countries have gone through with a juvenile execution in the past fourteen years. As mentioned earlier, the states that have a claim of juvenile execution in their state vehemently deny it -- aside from the United States. This refusal to admit complicity or participation in juvenile executions supports the second step of creating a jus cogens norm by proving that prohibiting juvenile executions are accepted by the international community as a whole.

The third step from the Vienna Convention is to render the norm immune from derogation, a common practice used by many nations to technically ratify a treaty while still preserving its own interpretation of the law. This criteria is fulfilled in the reading and authority of the ICCPR, in which Article 4 states there will be "no derogation from death penalty for juvenile offenders is a per se non-derogable." (ICCPR Art.4)

The final criteria to establish an international norm as a jus cogens norm is that "there is no emerging norm, of the same status as that of the prohibition of the execution of juvenile offenders, which contradicts or modifies this current norm." (Vienna, Art. 53) Being unaware of any similar movement regarding the protection of minors from capital punishment in the international law community, it appears that all four prongs have been fulfilled.

In light of this emerging jus cogens norm, based on natural law, how would the United States respond to such a new -- and yet extremely viable in Western jurisprudence -- authority? Would a jus cogens norm serve as binding law in a United States court? The following section examines exactly what happened when this issue required a determination by the United States, in the late twentieth century.

JUS COGENS NORM IN PRACTICE

Exceptionalism masked by bureaucratic haggling

In Domingues v. Nevada, Domingues, a foreign national, was convicted of capital crimes in a lower court and appealed to the Supreme Court of Nevada, where he argued that his sentence of death violated international law and the theory of jus cogens (Domingues v. State, 961 P. 2d 1279, at 1280, Nev. 1989). After much debate over the supreme law of the land -- i.e., the international treaties as applied to the United States as a whole vs. The policies of the State of Nevada, however, the Nevada Supreme Court upheld the sentence despite these claims, and the United States Supreme Court denied certiorari based on his appeal of the Nevada Supreme Court's decision (Brillante 2004).

Domingues filed a petition to the Inter-America Commission of Human Rights (IACHR), which accepted it and released their opinion that the United States had violated a jus cogens norm against the execution of juveniles (See Case No. 12-285, Inter-American Commission on Human Rights). In doing so, the IACHR noted that in a previous case, the United States had recognized that a jus cogens norm prohibiting the execution of juveniles existed, but that insufficient international consensus existed at the time as to the age of majority (Brillante 2004). Although the United Sstates argued differently, the IACHR issued an opinion which found that all members of the General Assembly had ratified the Convention of the Rights of a child except for the U.S. And Somalia, proving that the execution of juveniles was a jus cogens norm (Brillante 2004, p. 724). Following up with this mass of international mores, norms, and claims of confusion, the Inter-American Commission on Human Rights issued S. Exec. Rep. No. 102-23, clarifying these muddy waters a bit.

CONCLUSIONS:

Or the current status of juvenile capital punishment in the United States

and in the international community

Unfortunately, a bit is all that the waters may be cleared in terms of combining international norms with U.S. code. The United States remains unsigned or unratified to several prominent human rights treaties. Despite recent jurisprudence which banned child execution in the States, the track record of the Supreme Court with regard to capital punishment is not a straight line, or even a curved one; the Court has wound around from condoning capital punishment to banning it to allowing it in certain situations again and returned to today's rather complicated situation of different groups needing different laws for the same crimes -- mentally retarded individuals are not the same as calculating criminals, and youthful recklessness cannot be put on a part with the mature, informed, life experience with which to properly evaluate an action's intended and actual consequences.

In understanding the application of the Eighth Amendment, to which every debate on the death penalty can be traced, the most common precedent to be cited is a 1958 Supreme Court case, Trop v. Dulles, which addressed the eighth amendment and what it was supposed to cover; Chief Justice Earl Warren wrote "that the definition of 'cruel' was dependent on the 'evolving standards of decency that mark the progress in a maturing society." (Cited in Supreme Court Debates December 2004). This definition has allowed the Court to shift legal standards from segregation to civil rights; from women as possessions to women's liberation, and from allowing the death penalty to abolishing it to re-allowing it and now trying to regulate it as is best for a free and democratic society such as ours.

These "evolving standards" mean that the Eighth Amendment will not remain static and its statutes set it stone, but that current social trends, international pressures, and national events will all have an affect on it. In the previous generation, the death penalty was abolished completely due to what the Supreme Court perceived as public and international opinion against it; a few years afterward it was re-established due again to a significant shift in public opinion and interpretation of then-current legal precedents. Today's debate over exempting certain groups from the death penalty certainly is influenced by society's "evolving standards" regarding the capacities of those groups, from mentally retarded individuals to the young and perhaps immature.

The evolution of society alters the fluid nature of many of our laws and the policies of our criminal justices system. The slight grip that advocates of Roper, the policy that prohibits juvenile execution, could slip away tomorrow or it may endure for a generation, finally linking itself with the more established international mores and norms, and even become recognized in the United States as a jus cogens norm. In light of the issue and the evidence regarding the ability of juvenile defendants to fulfill the prongs of the justice system's proportionality analysis with regard to inflicting punishment for crimes, one would hope that the current precedent prohibiting this practice will remain firmly in place. As Martin noted, "Applying identical punitive policies to children and adults when empirical evidence suggests marked cognitive differentiation is simply unjust" (Martin 2005, p. 726). Youth are, by virtue of many of their characteristics, a "different" group, like the handicapped, whom we protect and shield in the criminal justice system.