Dismantling the felony-murder rule: juvenile deterrence and retribution post-Roper v. Simmons.

• Author: Flynn, Erin H.

INTRODUCTION

Juvenile offenders (1) no longer have a place on death row. (2) On March 1, 2005, the United States Supreme Court categorically abolished the juvenile death penalty, holding that the sentencing to death of an individual who was under the age of eighteen at the time of his offense violated both the Eighth and Fourteenth Amendments of the United States Constitution. (3) To distinguish between the culpability of a child and an adult, the Court in Roper v. Simmons relied on a growing national consensus against the juvenile death penalty, social science and neurodevelopmental research, and international legal standards. (5) Recognizing that developmental differences contribute to culpability, the Court differentiated between juveniles and adults based solely on chronological age and categorically safeguarded any juvenile convicted of a state or federal crime from a court's or legislature's (6) imposition of a death penalty sentence. (7)

Roper v. Simmons removed juvenile execution from the variety of sentences available to prosecutors and courts, but its broader implications for the juvenile justice system and juvenile sentencing schemes have yet to be realized. Although the Court, in fashioning its argument, relied on international standards and compacts that prohibited the juvenile death penalty, it conceded that juveniles could still be sentenced to life without the possibility of parole (LWOP)--a sentence that these same compacts denounced. (8) The Court affirmed the Missouri Supreme Court decision, which resentenced Simmons to "life imprisonment without eligibility for probation, parole, or release except by act of the Governor." (9) In doing so, the Court implied that it did not view such a sentence as cruel and unusual punishment under the Eighth and Fourteenth Amendments. Thus, in its decision to abolish the juvenile death penalty, the Court seemed to approve the use of LWOP sentences against juvenile offenders. (10)

Roper's legacy is questionable. What do the Court's broad findings, but rather limited holding, mean for the numerous post-Roper youth that encounter the criminal justice system? (11) Despite the magnitude of its effect on states' treatments of juveniles, Roper was warmly received. (12) The Court's reasoning, however, does not appear to have had ripple effects. States' treatment of juvenile offenders remains largely unaltered. Children deemed to be serious juvenile offenders are still thrust into adult courts and are subjected to adult sentencing schemes. Roper's reasoning raises questions as to why these children are treated differently than their juvenile court peers. (13) Some increased level of supervision or incapacitation may be necessary for more violent juvenile offenders, but Roper begs the question of whether unreformable, "superpredator" (14) children really exist. (15)

Although arguments exist for abolishing juvenile LWOP sentences as cruel and unusual punishment that violates the Eighth and Fourteenth Amendments, (16) I will not focus here on constitutional arguments. (17) The Court's dicta in Roper v. Simmons seem to foreclose immediate Eighth Amendment challenges to juvenile LWOP sentences. Instead, this Comment seeks to show that the Court's recognition of three main differences between juveniles and adults (18) leaves open to principled attack one of the major doctrinal hooks for gaining adult court jurisdiction over juveniles, and one of the main factors in lengthy juvenile incarcerations and juvenile LWOP sentences: prosecutors' use of felony-murder charges. (19)

Part I briefly describes the Court's reasoning in Roper. Part II then reviews the diminished scope of juvenile court jurisdiction and the historical trend toward treating juveniles as adults. It explains how, in the absence of a constitutional right to be tried as a juvenile, (20) three mechanisms have been employed to bring juveniles into adult court. (21) Part III critically examines the felony-murder rule and the assumptions underlying the doctrine. Part IV provides a vignette that illustrates the interaction among felony-murder charges, waiver provisions, mandatory sentencing schemes, and juvenile LWOP sentences. Finally, Part V argues that, in light of the Court's reasoning in Roper, felony-murder charges should be categorically excluded as applied to juveniles because they run afoul of Roper's findings and represent the antithesis of sound juvenile crime policy.

1. THE ABOLITION OF THE JUVENILE DEATH PENALTY

   In Roper v. Simmons, the Court addressed the fate of Christopher Simmons, a seventeen-year-old who had resolved to kill a woman by throwing her off of a bridge. (22) Despite the heinous nature of the act, Simmons's direct involvement in the murder, his enlistment of younger friends, and his late-minor age of seventeen, the Court still expanded the principles it first developed in Thompson v. Oklahoma (23) and held that imposition of the death penalty against any offender under the age of eighteen is unconstitutional. (24) The Court could have waited for and granted certiorari in a case with a more sympathetic defendant; it chose, however, to take Simmons's case--the gruesome crime, the defendant-instigator, the direct actor, and the older adolescent--and thereby signaled that its abolition of the juvenile death penalty was unqualified.

   In Thompson, a case of a fifteen-year-old sentenced to death, the plurality supported the constitutionality of its holding by emphasizing "civilized standards of decency"; "the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European Community"; (25) and the rarity of imposing juvenile death penalties on offenders under the age of sixteen. The Court stressed that the lack of privileges and responsibilities afforded to juveniles "also explain [s] why their irresponsible conduct is not as morally reprehensible as that of an adult." (26) In addition to juveniles' lesser culpability, the Court also noted their inability to be deterred by the harshest punishments, because youth fail to engage in "the kind of cost-benefit analysis that attaches any weight to the possibility of execution." (27)

   The Court's reasoning in Roper reaffirms its recognition of adolescents' evolving personhood. The Court acknowledged three main differences between adults and children as a basis for holding that the death penalty is a disproportionate punishment when applied to juveniles. The Court found that juveniles (1) "lack ... maturity and [have] an underdeveloped sense of responsibility," which results in "ill-considered actions and decisions"; (28) (2) are "more vulnerable or susceptible to negative influences and outside pressures"; (29) and (3) have characters that are "not as well formed as [those] of ... adult[s]" and traits that are "more transitory, less fixed" (30) in nature.

   The implication of the first difference, lack of maturity and an underdeveloped sense of responsibility, is that children are less likely to foresee the consequences of their actions and process the potential effects of their actions on others. (31) Because they fail to engage in such thought processes, children are more reckless than adults (32) and are also less likely to be deterred by punishment. The second difference, susceptibility to negative influences, recognizes that children are likely to engage in negative activities with their peers and, once involved in those activities, will have difficulty extricating themselves from a problematic situation. (33) The implication of the last difference, the transitory nature of juvenile character traits, is that children and adolescents have a greater propensity for rehabilitation than adults. Despite any actions to the contrary, they have not yet developed an "irretrievably depraved character." (34)

   In expanding the principles first enunciated in Thompson and reaching its holding that the juvenile death penalty is constitutionally impermissible cruel and unusual punishment, the Roper Court departed from legal precedent and largely supported its decision with both international norms denouncing harsh juvenile sentences and scientific findings addressing juveniles' developing characters. (35) Although some scholars have focused on Roper's significance for constitutional analysis, (36) Roper is important for other reasons. A narrow reading of Roper limits the case merely to abolishing the juvenile death penalty. A broader reading of the case, however, should alter juvenile crime policy as a whole.

   The Roper Court recognized juveniles' lesser culpability, their inability to anticipate the consequences of their actions, and their potential for change. These findings directly impact juvenile deterrence and retribution. Given the Court's findings about adolescent culpability and development, the next sections present the inconsistencies between current juvenile crime policy and the Roper findings, and address the plight of post-Rope," youth who kill. More specifically, this Comment argues against the continued use of juvenile felony-murder charges--which can subject juveniles to the harshest sentences still permitted by the Roper Court--in a post-Roper landscape. First, however, I explain how juveniles end up being tried in adult courts, in which they are subjected to harsh penalties.

2. THE RISE OF "ADULT CRIME, ADULT TIME" AND THE JUVENILE "SUPERPREDATOR" (37)

   The nationwide existence of separate juvenile courts signifies a difference in our treatment of juveniles and adults. (38) Traditionally, juvenile courts were developed as a nonpunitive system that valued rehabilitation over retribution. (39) What, then, removes children from the realm of a nonpunitive system and thrusts them into the adult criminal system, potentially exposing them to long--and even lifetime--prison sentences?

   Both pre- and post-Roper, prosecutors, courts...