Home > Uncategorized > Responsibility and Retribution: Juvenile Murderers and Capital Punishment

Responsibility and Retribution: Juvenile Murderers and Capital Punishment

The following is an essay that I wrote last year for a course at Choate.  It describes and analyzes the Supreme Court case Roper v. Simmons, a 2004 case holding that the execution of juveniles is a violation of the Eighth Amendment’s Cruel and Unusual Punishment Clause, and is thus unconstitutional.  In the essay, I argue that this decision was wrong, and that, insofar as we allow capital punishment (which I would, generally, argue that we should not), there is no reason to exclude anybody from a system of capital punishment purely on the basis of age.  I should caveat that I haven’t read this in over a year, and thus will reserve the right to recant and amend any of my statements, though likely not my thesis.  I think this is a critical capital punishment issue in our society, constitutionally, morally and politically.


The death penalty is, and without a doubt has been, one of this country’s most contentious issues for decades.  The very nature of the issue demands that it be so, as it quite literally deals with the arbitration of life and death.  People on both sides of the spectrum bring viewpoints wrought with passion, citing arguments of religious, political, economic, moral, and social natures in order to support their positions.  The complicated nature of death penalty cases makes it a difficult issue to break down, to sift through the complexities and see the issue as black and white.  Indeed, the issue is not black and white; there are many who support the death penalty only in certain cases or when it is applied in a certain way.  There are very few who would claim to be categorically for or against the death penalty.

The intricacies of this issue are reflected in the death penalty jurisprudence of the Supreme Court.  Beginning in 1972 with the case Furman v. Georgia, where the Court ruled that Georgia’s application of the death penalty was unconstitutional, the Court has ruled on a number of the idiosyncrasies of capital punishment.[1]  However, the Court has never given a definitive answer as to the constitutionality of the death penalty itself.  The closest that it has come is in the 1976 decision of Gregg v. Georgia, in which the Court ruled that the state of Georgia had rectified the prior flaws in its capital punishment system that had rendered the system unconstitutional, thus implicitly condoning the death penalty within constitutional parameters.[2]  Aside from this decision, however, the Court has only ruled on what those constitutional parameters are.  For example, in Atkins v. Virginia, the Court ruled that mental retardation is a mitigating factor, which exempts a defendant from the death penalty.[3]  In another case, Stanford v. Kentucky, the Court ruled that a sixteen-year old defendant could be executed.  At issue in the case of Roper v. Simmons was again the age of a potential executee.  The question presented to the Court was thus:  “Can a defendant who is convicted of a murder committed before he was eighteen be executed?”  The Court, in a 5-4 decision, ruled that he could not be, thus making age another mitigating factor in a capital punishment case.  However, for reasons to be enumerated below, this decision was wrong.

Roper v. Simmons, a landmark 2005 Supreme Court Case, is one of the major cases establishing the standard for capital punishment in America.  Sparked by the decision of the Missouri Supreme Court to commute Christopher Simmons’ death sentence to life without parole, at issue was whether a juvenile could be executed.  Simmons, who was seventeen at the time, had created a plot, in conjunction with his friends Charlie Benjamin and John Tessmer, who were fifteen and sixteen respectively, to “find someone to burglarize, tie the victim up, and ultimately push the victim off the bridge”.[4]  Simmons and Benjamin (Tessmer decided to stay home) carried out this plan at the home of Shirley Crook, an old woman with whom Simmons had been involved in a car accident, breaking in at two AM, abducting her from her bed, and putting her into the trunk of Simmons’ car.  They then drove to a nearby bridge and pushed Ms. Crook off.  The next day, Ms. Crook’s body was found, Simmons was taken into custody, and he confessed immediately and was sentenced to death.  After going through the lower courts, Simmons’ appeal finally came to fruition in the Supreme Court of Missouri.  The Court found that since Simmons was a juvenile, his Eighth Amendment rights (the right to avoid cruel and unusual punishment) had been violated, and thus commuted his sentence to life without parole.  At this point, the State of Missouri appealed to the U.S. Supreme Court, who took on the case.  Roper v. Simmons did not present a debate on the morality of capital punishment itself.  Rather, at issue was whether or not a juvenile can be executed for a death-penalty level offence after receiving due process.  To use a term coined during the oral argument of James R. Layton, at issue was whether youth is a mitigating factor in a capital punishment case.

Layton, in his twenty minutes of oral argument, tried to paint the picture of a corrupted youth who deserved to pay for his crime.  He pointed out that the Missouri Supreme Court “jumped beyond the question of maturity to the arbitrary distinction of age”[5], speaking in relation to the Supreme Court’s decision in Atkins v. Virginia Layton argued that while Atkins was directly related to “a component of culpability”[6] in mental retardation, the bright line drawn by the Missouri Supreme Court in Simmons was arbitrary.  Layton chided the state for “depriving legislators and juries of the ability to evaluate the maturity of 17-year old defenders”[7].  The greater part of his argument can be summed up in his response to Justice Scalia that “there are 17-year-olds who are equally culpable with those who are 18…years of age”[8].  Layton attempted to show that age was an arbitrary factor when considered in a capital punishment case.  He clearly believed that Christopher Simmons’ age had been used as a crutch by his counsel, and that his maturity should be the true determining factor.  Further attacking the term “adolescence”[9], Layton claims that it in itself is arbitrary, and thus cannot be used as a determining factor in a capital punishment case.  To sum up, Layton’s argument is based upon the notion that while age can be a mitigating factor (he cites Stanford v. Kentucky[10] as creating a baseline guide for execution without establishing a rigid bright-line), it is much more important to analyze culpability and maturity on a case by case basis, rather than to adhere to a strict and potentially arbitrary bright line created in a court room.

The oral argument of Seth Waxman was predicated on a very different notion.  Waxman attempted to show that, though the age of 18 may be an arbitrary bright-line, that it’s necessary to implement some arbitrary bright-line in order to ensure that the Eighth Amendment is upheld.  Waxman began by noting that America was one of only two counties in the world that allowed the execution of minors (Somalia being the other), saying that “we are literally alone in the world even though 110 countries in the world permit capital punishment…. every one of them renounces it for juvenile offenders”[11].  This, he warrants, is not “game, set, and match”[12], but he claims that it is a relevant fact, if for no other reason simply to demonstrate the moral dubiousness associated with the execution of minors.  Waxman goes on to discuss scientific evidence filed in amicus briefs by such bodies as the American Medical Association, the American Psychiatric Association, and the American Psychological Association.  This evidence, he claims, shows that there is “no way to identify them [juveniles as the ‘worst of the worst’] and there’s no way reliably to exclude them”[13].  Amidst some banter about whether the evidence could have been introduced at trial, Waxman’s scientific argument finds its main point:  That no scientific means exist to discover whether an offence committed by a minor is indicative of an overarching character flaw, or simply of juvenile transience.  He says, in response to a question by Justice Kennedy, “there is no way, even for a psychologist or a psychiatrist, much less a juror, to be confident [that the defendant is ‘the worst of the worst’] because of the inherent, documented transiency of the adolescent personality.[14]”  Waxman essentially contends that a jury cannot know for sure if a crime is motivated out of the type of hateful spite that usually garners the death penalty or simply by the kind of juvenile delinquency that merits a lesser response.  Of particular importance to this argument is the amount of time separating the offence from the trial.  Often, Waxman claims, adolescence will have changed the defendant such that an accurate gauge of his character at the time of the offence will be impossible.  He describes this as his “key point”[15], saying that it is impossible to determine if a crime “proceeded from enduring qualities of that person’s character as opposed to the transient aspects of youth”.  In this respect, Waxman says, the execution of juveniles is comparable to the execution of the mentally retarded addressed in Atkins. What Waxman’s argument boils down to is this:  It is impossible to know whether a juvenile is actually one of “the worst of the worst”, or if that individual is simply acting in an exacerbated manner of what one typically expects of adolescents.  Moreover, the isolation of the United States with regards to the issue of juvenile execution suggests a general consensus towards a feeling of moral repugnance towards applying the death penalty to those under eighteen, and thus the statutes should be amended to create a bright-line.  This bright-line may be arbitrary, but it is better than not having a bright-line at all.

Mr. Waxman’s argument is not only inadequate but also not effectively substantiated.  When pressed on a number of issues, among them the general use of eighteen as a bright-line for adulthood (Justice Scalia cites the driving age in 41 states, with no meaningful response from Waxman), the potential for abuse of a decision in his favor (Justice Kennedy quite rightly mentions that gangs would turn to juveniles as “hit-men”[16], in lieu of an adult who would be subject to the death penalty), and whether his scientific evidence holds up to strict scrutiny (it clearly did, since they won the case, but his oral argument was rather lacking, and his scientific arguments did not stand up to questioning by Justices Scalia and Rehnquist).  He relies too heavily on what he deems a societal consensus (an argument which, curiously, has several pages dedicated to it in Layton’s brief, but comes up only briefly in his oral argument) against the execution of minors, citing this, along with the scientific evidence, as one of the main reasons to rule in favor of his client.  However, this argument is lacking, for two reasons:  One, he presents no evidence to support his notion of the so-called societal consensus, none in the form of statistics, citations, or otherwise.  This actually becomes quite important because Layton argues that there is a consensus to the sixteen-year old age line, which he claims results from the Court’s decision in Stanford (which did not explicitly create a bright-line, but, according to Layton, created a “16-year old line”[17]).  But the more important reason is that society does not always chose the best or even the most moral option.  For example, until the 1860s, there was a societal consensus that enslaving Africans was acceptable.  Until the Supreme Court decision Loving v. Virginia, there was a societal consensus that interracial marriages were wrong[18].  Until 1964, there was a societal consensus that it was acceptable to fire someone simply based on his race.  Society has, throughout history, consented to countless immoral activities.  Thus, a societal consensus is not enough proof to rule in favor of Christopher Simmons.  To his credit, Mr. Waxman does have one fantastic argument, one that, had he presented it correctly, ought have won him the case, but he addresses it only in vague terms, without delving into the deeper implications.  This argument is regarding the period of time separating the murder and the trial.  This argument is solid, because it can undermine any kind of psychological testimony taken at trial simply by asserting that the significant transience of adolescence had turned the juvenile offender into a more mature individual since the act.  To disprove that line of argumentation is impossible, and at that point, the state would risk a tremendous uprising if they went ahead with the execution, as the potential execution of an immature adolescent would be abhorrent in every sense of the word.  Mr. Waxman hardly skims the surface with this argument though, leaving out the vital third step of any solid argument:  the impact.  Though he does, in response to a question by Chief Justice Rehnquist, assert that the person on trial two years later is, essentially, not the same person, he does not spend nearly adequate time exploring the impact of this contention.  Why does it matter if the person has changed since committing the crime?  Didn’t he still commit a horrible crime, and should he not still receive punishment?  It could be argued that he should not, since clearly one cannot identify the aggravating psychosocial factors two years after the fact, but if Mr. Waxman does not explain explicitly, he cannot possibly win the case .  Based solely upon the contentions presented in oral argument, Mr. Layton ought to have won the case.  He gives clear justification for his arguments, explaining why an arbitrary bright-line actually denigrates the capital punishment system, and indeed the entire judicial system as a whole.  If it is decided that a certain demographic of the population is exempt from one particular punishment, who is to say that they should not also be exempt from others?  Of course, it could be said that death is a particularly horrible affair, and that it is only for that reason that minors are exempt, but is life without parole not also a particularly horrible affair?  At that point, another arbitrary (albeit less arbitrary) bright-line is drawn:  that addressing the types of punishments to which minors can and cannot be subject.

It must be said, of course, that the death penalty is fundamentally wrong, for reasons too numerous to be elaborated on here.  However, as addressed above, the morality of capital punishment is not at issue here.  Neither side is arguing against the death penalty on principle.  Rather, we are arguing the specific implementation of capital punishment, and the morality thereof.  In a world in which the death penalty is moral (for instance, the world of the United States Supreme Court, where all law is taken from the Constitution), minors who can be proven to exhibit adult-like maturity and vicious intent behind their crimes ought be executed.  Mr. Layton is absolutely correct when he expresses discomfort with a system by which an “individual who murders at age 17, 364 days is somehow treated differently than…a less mature individual who is two days older”[19].

The Supreme Court, in the majority opinion written by Justice Kennedy, held that “the State cannot extinguish his [a juvenile defendant’s] life and his potential to attain a mature understanding of his maturity”[20].  Further, the Court found that executing juveniles was in direct contradiction to the United Nations Convention on the Rights of the Child, and the International Covenant of Civil and Political Rights.  But there are two main problems with this.  The first is that the purpose of the CCRC is not to protect heinous murderers who completely aware of their actions, but rather to protect those children whose crimes are clearly motivated by the “adolescent transience” described by Mr. Waxman.  Moreover, the United States had not ratified Article 37 (the death penalty clause) of the Convention on the Rights of the Child, and indeed still has not ratified the CRC. The second is that the ICCPR’s regulation on the death penalty in Article 6, Paragraph 2 is irrelevant here, given that the United States, in ratifying the ICCPR, did so with a reservation declaring their continued right to administer the death penalty according to their laws.  So one can clearly see that those two UN treatises are not relevant in this issue from a legal standpoint.

To again reiterate, the death penalty is immoral and ought not be allowed in this country.  However, that is not the issue here.  The issue is whether anyone who commits a heinous murder with a malicious intent and clear cognitive recognition of their actions and the implications therein should be punished to the fullest extent of the law, even if that individual is a juvenile.  Exactly what the fullest extent of the law should be is irrelevant in this case.  Given the philosophical justifications of punishment itself and the arguments presented in this case by Messrs. Layton and Waxman, it is altogether evident that the Supreme Court wrongly decided this case, and that the decision of the Supreme Court of Missouri ought be reversed.



















Additional Sources Used

“International Covenant of Civil and Political Rights.” Office of the United Nations High Commission on Human Rights. Available from http://www2.ohchr.org/english/law/ccpr.htm. Internet; accessed 15 February 2010.


“American Reservations to the International Covenant on Civil and Political Rights.” International Justice Project. Available from http://www.internationaljusticeproject.org/juvICCPR.cfm. Internet; accessed 15 February 2010.


Roper v. Simmons Case Summary.” Death Penalty Information Center. Available from http://www.deathpenaltyinfo.org/u-s-supreme-court-roper-v-simmons-no-03-633. Internet; accessed 15 February 2010


[1] “Oyez.” Furman V. Georgia (1972). Available from http://www.oyez.org/cases/1970-1979/1971/1971_69_5003/. Internet; accessed 15 February 201

[2] “Oyez.” Gregg v. Georgia (1976). Available from http://www.oyez.org/cases/1970-1979/1975/1975_74_6257. Internet; accessed 15 February 2010.

[3] “Oyez.” Atkins v. Virginia (2002). Available from http://www.oyez.org/cases/2000-2009/2001/2001_00_8452/. Internet; accessed 15 February 2010.

[4]Roper v. Simmons: Brief for Petitioner.” Available from http://supreme.lp.findlaw.com/Supreme_Court/briefs/03-633/03-633.mer.pet.pdf. Internet; accessed 15 February 2010

[5]Roper v. Simmons: Oral Argument of James R. Layton.” Oyez. Available from http://www.oyez.org/cases/2000-2009/2004/2004_03_633/argument. Internet; accessed 15 February 2010.

[6] Ibid

[7] Ibid

[8] Ibid

[9] Ibid

[10] Ibid

[11]Roper v. Simmons: Oral Argument of Seth P. Waxman.” Oyez. Available from http://www.oyez.org/cases/2000-2009/2004/2004_03_633/argument. Internet; accessed 15 February 2010.

[12] Ibid

[13] Ibid

[14] Ibid

[15] Ibid

[16] Ibid

[17] Ibid

[18]Loving v. Virginia (1964).” Oyez. Available from http://www.oyez.org/cases/1960-1969/1966/1966_395. Internet; accessed 15 February 201

[19] Ibid

[20] “Opinion of Roper v. Simmons.” Cornell University Law School. Available from http://www.law.cornell.edu/supct/html/03-633.ZS.html. Internet; accessed 15 February 2010



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