Friday, March 04, 2005


The Supreme Court has just decided Roper v. Simmons, and held that the Eighth Amendment prohibits the execution of a convict who was under the age of eighteen at the time of the capital crime. Roper was Superintendent of the Missouri correctional center which presumably would carry out the sentence. The case was decided March 1, 2005; it was a 5-4 decision, and the majority opinion was written by Justice Kennedy. This case, and other Supreme Court cases, may be viewed free of charge at Findlaw (

The Eight Amendment provides, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Bill of Rights (first ten amendments) apply to the national legislature, Congress; and following the adoption of the Fourteenth Amendment, which expressly limits the powers of the States, the Supreme Court has taken portions of the Bill of Rights and made them applicable to the States also. The Eighth Amendment is one of those which the Supreme Courts says is binding on the States because of the adoption of the Fourteenth Amendment, with its due process clause.

Not all of the Bill of Rights is binding on the States. For example, the Fifth Amendment provides a privilege against self-incrimination ("He took the Fifth."); and the Fifth Amendment also provides that no one shall be prosecuted for a felony except upon indictment by a grand jury. The grand jury requirement is not binding on the States. You will see cases prosecuted by information (written charge by the District Attorney) after a preliminary hearing before a magistrate (the magistrate finds probable cause and binds the accused over for prosecution). Suffice it to say at this time, that the Eighth Amendment applies to the States, and now execution of convicts under 18 at the time of the capital crime, is forbidden as "cruel and unusual punishment." What is "cruel and unusual" depends in part on ". . . the evolving standards of decency that mark the progress of a maturing society."

In 1989, by a 5-4 decision, the opposite result was reached by the Supreme Court in Stanford v. Kentucky, 492 U.S. 361 (1989). In that case, the Court ruled that the Eighth Amendment did not prohibit the execution of convicts whose capital crime occurred when the offender was under 18 years of age (but over 15 years of age).

In this Roper case, over the objection of three of the dissenting justices, foreign attitudes were considered. The majority states that only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China.

For punishment of death to be cruel and unusual, it need not be inherently barbaric; it may also be excessive in relation to the crime. Excessive in relation to the killer. Here Simmons was 17 years old and five months; he planned a burglary and murder, enlisted other juveniles, stated that he would get away with it because he was a juvenile, committed the burglary, took the woman victim, tied and duct-taped, and threw her off a bridge into a river to drown, all as he planned (and related his intentions) in advance. In the Stanford case, now overruled, the crimes were worse but there was less planning.

One interesting analogy, by dissenting Justice Scalia. The majority had pointed out that so many States were against the death penalty for juveniles, and included in those States against such penalty, those States which had abolished the death penalty entirely. Justice Scalia found fault with that statistic. He said ". . . Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don't like it, but that sheds no light whatever on the point at issue. That 12 States favor no executions says something about consensus against the death penalty, but nothing -- absolutely nothing --about consensus that offenders under 18 deserve special immunity from such a penalty.

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