The National Pulse

Will Youth be Served?

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The U.S. Supreme Court’s re­cent ruling prohibiting the execution of juvenile offenders will likely affect how lawyers and judges view juvenile criminal behavior.

Children’s rights advocates say the decision, Roper v. Simmons, No. 03 633, raises the broader question of whether juveniles are less culpable than adults and less deserving of adult style treatment.

They contend the March 1 ruling raises the possibility that the Eighth Amendment prohibition on cruel and unusual punishment could also be applied to cases in which juvenile offenders are sentenced to life in prison without the possibility of parole. And they say the court’s consideration of international law opens the door to the possibility that courts might consider foreign authorities when examining other aspects of the juvenile justice system.

“This decision could help shift the thinking about the sentencing of juvenile offenders in courts throughout the country,” says Angela Vigil, a children’s law specialist and director of pro bono and public service at Chicago based Baker & McKenzie.

Nova Southeastern University law professor Michael Dale, who teaches and practices juvenile law, says he does not know if a lawyer could walk into court with the Simmons opinion and say to a judge that a disposition or a sentencing is unconstitutional.

“But I do think that some of what the court talks about in Simmons suggests that more attention should be paid to the issues of culpability and deterrence as they relate to juveniles,” he says.

A more immediate question, says Vigil, a member of the ABA Litigation Section’s Children’s Rights Litigation Committee, is what happens to the 72 juvenile offenders on death row in 12 states. It’s not clear, she says, whether those sentences automatically revert to mandatory alternative sentences or whether those inmates are entitled to new sentencing hearings. “Every state’s sentencing scheme is different,” she says.

‘Evolving Standards of Decency’

The unanswered questions stem from the court’s landmark 5-4 decision that the execution of juvenile offenders violates the Eighth Amendment ban on cruel and unusual punishment.

“The age of 18 is the point where society draws the line for many purposes between childhood and adulthood,” Justice Anthony M. Kennedy wrote for the majority. “It is, we conclude, the age at which the line for death eligibility ought to rest.” The decision marked an about face by the high court, which in 1989 found no reason to outlaw the execution of 16 and 17 year olds who commit capital crimes. Stanford v. Kentucky, 492 U.S. 361.

The majority based its decision on the “evolving standards of decency” analysis that has shaped the court’s view as to what constitutes cruel and unusual punishment under the Eighth Amendment for nearly 50 years.

In his opinion, Kennedy said the evidence of a new national consensus against the death penalty for juveniles is similar, and in some respects parallel, to the evidence the court held sufficient in 2002 to demonstrate a national consensus against the execution of the mentally retarded. Atkins v. Virginia, 536 U.S. 304.

Besides relying on that trend, the majority cited scientific and sociological studies on the differences between juveniles and adults. The research indicates juveniles have an underdeveloped sense of responsibility, have a greater susceptibility to negative influences and lack a fully formed character. The court also found that the two social purposes the death penalty serves with respect to adults–retribution and deterrence–have little or no effect on juveniles.

In finding a new consensus against the execution of juveniles, the majority also acknowledged what it called “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.” Since 1990, only seven other countries have executed juvenile offenders, the court said, and all seven have either abolished or publicly disavowed the practice.

A New View

For the past 15 to 20 years, state policy makers have been passing laws premised on the idea that teenagers are as responsible as adults are for their criminal behavior and should be punished accordingly. But Simmons suggests teenagers are less culpable than adults and less deserving of the most extreme punishment society has to offer, children’s law experts say.

“The court’s recognition that teenagers are not fully formed and that their criminal behavior is likely limited to their teenage years should lead to a wholesale re evaluation of the laws in every state that have made it easier to prosecute children as adults and bring rehabilitation back to the forefront of our sentencing policy concerning youthful offenders,” says Northwestern University law professor Steven Drizin, an authority on juvenile justice policy.

Mark Soler, president of the Youth Law Center, a public interest law firm based in Washington, D.C., that works on juvenile justice issues, says the court had previously issued conflicting opinions as to whether immaturity was a critical factor in assessing the culpability of juvenile offenders. But Simmons, he says, has made it clear that the majority believes it is.

“If you believe that juveniles are less mature and less responsible than adults, as the majority said in Simmons, that’s a strong argument for keeping them out of adult court,” he says.

Before Simmons, it also wasn’t clear how influential international laws and norms would be in how the courts look at the issues of immaturity and culpability, Soler says. But Simmons makes it possible for juveniles’ defense attorneys to use such evidence to try to influence what happens in juvenile court.

One example, Soler says, is a provision of the United Nations Convention on the Rights of the Child, which says juveniles should not be incarcerated alongside adults.

Drizin notes that a broad coalition of medical, religious, child welfare, human rights and juvenile justice organizations had come together to call for an end to the death penalty for juvenile offenders. If the same type of coalition can be put together around other juvenile justice issues, such as life imprisonment without the possibility of parole, he says, it could lead to the first real reform in juvenile justice policy in this country in 15 to 20 years.

“That means reaffirming the idea that children are different than adults, which makes them less culpable, and requiring that we invest our resources in rehabilitation rather than just locking up kids and throwing away the key,” he says.

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