The decline of the juvenile death penalty: scientific evidence of evolving norms.

• Author: Fagan, Jeffrey

1. INTRODUCTION

   Shortly after the U.S. Supreme Court issued its decision in Atkins v. Virginia (1) holding that the execution of mentally retarded persons violated the Eighth Amendment, legal scholars, advocates, and journalists began to speculate that the Court would next turn its attention to the question of the execution of persons who were juveniles--below eighteen years of age--fat the time they committed homicide. Following the Atkins decision, four Justices expressed the view that the rationale of Atkins also supported the conclusion that execution of juvenile offenders was unconstitutional. (2) A constitutional test of capital punishment for juveniles was inevitable.

   The Atkins Court held that capital punishment was an unconstitutionally cruel and unusual punishment for the mentally retarded for two reasons. First, the Court concluded that the impairments associated with mental retardation both reduced the culpability of the mentally retarded, making death a disproportionate punishment for them, and created a "special risk of wrongful execution." (3) Second, the Court found that a national consensus had emerged that death is an excessive punishment for the mentally retarded. (4)

   As evidence of that national consensus, the Court pointed to the growing number of states that expressly barred the imposition of the death penalty on the mentally retarded: since 1989, when the Court had last considered the constitutionality of executing the mentally retarded, (5) the number of states with such legislation had grown from two to eighteen. (6) In addition, the Court observed that, even in states where the death penalty was theoretically a permissible punishment for the mentally retarded, it was rarely imposed: since 1989, only five states had executed offenders known to be mentally retarded. (7)

   Like the question of execution of the mentally retarded, the question of the constitutionality of the death penalty for juveniles was last visited by the Supreme Court in 1989. That year, in Stanford v. Kentucky, (8) the Court concluded that the death penalty was not inherently disproportionate to the culpability of adolescents and that individualized assessments could reliably sort out which juveniles were sufficiently morally culpable. (9) And it held that no national consensus barred the imposition of capital punishment on sixteen- or seventeen-year-old juveniles. (10)

   The Supreme Court returned to the juvenile death penalty in January 2004 when it granted certiorari to review the Missouri Supreme Court's decision in Simmons v. Roper. (11) In Simmons, the Missouri Supreme Court relied on the logic of Atkins to hold that the execution of persons who committed homicide before reaching their eighteenth birthday is unconstitutional. (12) The Court cited the immaturity and consequent reduced culpability of juvenile offenders, (13) plus the special risk of wrongful execution for juvenile offenders, due in part to the risk of false confession. (14) In addition, the Simmons court concluded that, since Stanford was decided in 1989, a national consensus had emerged opposing the death penalty for juvenile offenders. (15) Evidence of this consensus was found in both the increasing number of states that ban the juvenile death penalty by statute and the infrequency with which juries now impose the punishment of death on juvenile offenders even in jurisdictions where it is legislatively authorized. (16) On March 1, 2005, the U.S. Supreme Court voted 5-4 to affirm the Missouri Supreme Court's ruling in Simmons. (17) The Court's decision relied on social science evidence of the reduced culpability of juveniles and the declining use of the juvenile death penalty to ban the use of the death penalty for persons who commit capital homicide before reaching the age of eighteen. (18)

   At the time of the Simmons decision, a growing body of research has addressed the issues of juveniles' lesser culpability and greater risk of wrongful execution. (19) In contrast, discussions of the declining use of the death penalty against juveniles have been largely descriptive. This article provides statistical analyses of the available data regarding changes in the use of the death penalty for juveniles over time, and analyzes data on the patterns of decisions by judges and juries to illustrate the Simmons Court's conclusions on the consensus opposing the execution of minors.

   The number of juvenile death sentences has declined sharply since 1994, when eighteen juveniles were sentenced to death. (20) In 2003, only two juveniles were sentenced to death, and one of these was a re-sentence following a reversal of a previous sentence; in 2004, two juveniles were sentenced to death. (21) Adult death sentences have declined at a slower pace during this time, from a recent peak of 320 in 1996 to 143 in 2003. (22)

   The decline in the number of juvenile death sentences since Stanford may simply reflect a lower juvenile homicide arrest rate and a reduced supply of juvenile defendants eligible for death sentences. But the decline in juvenile death sentences may also signal the emergence of a societal norm against the imposition of capital punishment on juvenile offenders, expressed through juries' sentencing decisions, prosecutors' decisions not to seek death sentences for juvenile offenders, or both. (23)

   In order to evaluate these competing explanations for the decline in juvenile death sentences, we first conducted a descriptive analysis of trends over time, considering both the absolute number of death sentences imposed on juvenile offenders and the rate at which juvenile offenders are sentenced to death (indexed to the homicide rate and to the rate at which juveniles are arrested for homicide). We then performed a multivariate analysis to determine whether the decline in the use of the juvenile death penalty is statistically significant after controlling for other competing explanations. These analyses provide an empirical foundation for determining whether the striking decline in the use of the juvenile death penalty reflects an emerging societal norm opposing the punishment of death penalty for persons who committed their crimes before the age of eighteen.

2. THE JURISPRUDENCE OF EVOLVING NORMS IN THE JUVENILE DEATH PENALTY

   Evolving norms and standards are at the heart of Eighth Amendment jurisprudence. The Supreme Court has often stated that "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." (24) Accordingly, a punishment may be unconstitutionally cruel and unusual under the Eighth Amendment if there is a current societal consensus against the imposition of that punishment. Indicia of evolving standards were set forth in Coker v. Georgia, (25) where the Supreme Court charted future deliberations on this question by stating that evolving standards should be measured by "objective factors to the maximum possible extent." (26) Coker and subsequent cases have relied primarily on two objective factors to assess societal consensus with regard to the death penalty: (1) state legislation, and (2) sentencing decisions by juries. (27) We briefly consider the first factor and then turn to the second, which is the focus of this article.

   1. STATE LEGISLATION

      State legislation demonstrates that a growing number of states oppose capital punishment for juveniles. In the fifteen years since the Stanford decision, no state has lowered its age threshold for the juvenile death penalty from eighteen years of age to seventeen or sixteen, although Stanford set the lower boundary for a death sentence at sixteen. (28) Instead, during this period, six states prohibited capital punishment for juveniles by statute: Kansas (1994), (29) New York (1995), (30) Montana (1999), (31) Indiana (2002), (32) South Dakota (2004), (33) and Wyoming (2004). (34) In addition, the Washington Supreme Court's 1993 Furman decision interpreted Washington's death-penalty statute as excluding the death penalty for persons under eighteen. (35) Including the eleven states that had legislatively prohibited the juvenile death penalty prior to the Stanford decision, eighteen of the thirty-eight states that permit the death penalty now expressly bar its use for offenders under the age of eighteen. (36) Thirteen jurisdictions bar the death penalty altogether. (37)

      Other states have passed legislative bans on the juvenile death penalty in one or both houses of their state legislatures, a trend that the Supreme Court noted in Atkins as states moved to ban execution of mentally retarded defendants. (38) In 2004, New Hampshire passed legislation in both houses banning the juvenile death penalty, but the governor vetoed the legislation. And in two of the three most active juvenile death sentencing states, (39) Texas (2002) and Florida (2001, 2002, and again in 2004), one house of the state legislature voted to ban death sentences for juveniles. These legislative developments suggest a societal trend away from use of the death penalty for offenders under eighteen.

   2. JURY SENTENCING DECISIONS

      In addition to looking at state legislation, the Supreme Court has consistently examined data on jury sentencing decisions in order to ascertain the existence of a societal consensus against the use of the death penalty for a particular group.

      In Coker v. Georgia, (40) the Court explained:

      [T]he jury ... is a significant and reliable objective index of contemporary values because it is so directly involved." ... [I]t is thus important to look to the sentencing decisions that juries have made in the course of assessing whether capital punishment is an appropriate penalty for the crime being tried. (41) Accordingly, in support of its holding that the death penalty is an excessive punishment for the crime of rape of an adult woman, (42) the Court relied in part on the fact that between 1973 and 1977, Georgia juries had sentenced defendants to death for...