For mice or men or children? Will the expansion of the Eighth Amendment in Atkins v. Virginia force the Supreme Court to re-examine the minimum age for the death penalty?

AuthorHughes, Jamie
PositionCase Note

Atkins v. Virginia, 536 U.S. 304 (2002)

  1. INTRODUCTION

    In May 2003, the United States Supreme Court removed mentally retarded criminals from eligibility for the death penalty during sentencing proceedings. Basing its decision upon the recent trend of legislation in various states removing retarded offenders from their sentencing schemes, the Court in Atkins v. Virginia expanded the Court's Eighth Amendment "cruel and unusual punishment" jurisprudence. The phrase "cruel and unusual" evolves along with society's values and the Court looks to objective indicia such as legislation and jury verdicts to determine when a "national consensus" has developed against a practice. When the Court finds that such a "consensus" exists, the practice is determined to be "cruel and unusual punishment" and thus unconstitutional. In Atkins, the Court continued their policy of looking outside of its walls and into society to final that the combination of recently enacted legislation, jury verdicts, the statements of international, religious and professional organizations, and polling data indicated a "national consensus" against executing mentally retarded offenders. While the Court's method follows precedent, the result does hot. The "national consensus" in Atkins is far weaker than any that has been previously relied upon to strike down a sentencing scheme under the Eighth Amendment. The Court has lowered its standards for defining a "national consensus," and this decision will have substantial future implications. With this new lower standard, the Court should accept certiorari for an age-related appeal and re-examine the minimum age of eligibility for the death penalty.

  2. BACKGROUND: THE EVOLVING STANDARD OF THE EIGHTH AMENDMENT'S PROHIBITION ON CRUEL AND UNUSUAL PUNISHMENT

    1. THE BEGINNING OF THE COURT'S MODERN ANALYSIS OF THE EIGHT AMENDMENT

      1. Weems v. United States

        In Weems v. United States, (1) the Court found that it was "cruel and unusual punishment" under the Eighth Amendment (2) to sentence a man convicted of falsifying two public documents to "twelve years and one day, a chain at the ankle and wrist of the offender, hard and painful labor, no assistance from friend or relative, no marital authority or parental rights or rights of property, no participation even in the family council." (3) The Court wrote that such a punishment offended Americans' belief that "it is a precept of justice that punishment for crime should be graduated and proportioned to offense." (4) The Court acknowledged that the Framers of the Bill of Rights and the members of Congress who passed the Bill explicitly left the term "cruel and unusual punishment" without a strict definition. (5) The lack of a confined definition has allowed the Court to look beyond the original intent of the drafters and has forced the Constitution to evolve. "Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth." (6) Constitutions are '"designed to approach immortality as nearly as human institutions can approach it.' ... In the application of a constitution, therefore, our contemplation cannot be only of what has been but of what may be." (7) By allowing the Constitution to evolve along with society and demonstrating the battle between the legislative and judicial branches, this decision set the tone for the development of Eighth Amendment "cruel and unusual" jurisprudence.

      2. Trop v. Dulles

        In Trop v. Dulles, (8) the Court decided that Section 401(g) of the Nationality Act of 1940 violated the Eighth Amendment as "cruel and unusual punishment." (9) The Act allowed for the citizenship rights to be revoked from a deserter of the armed forces who was court-martialed and dishonorably discharged. (10) Chief Justice Warren recognized the inherent vagueness of the terms "cruel and unusual," but instead of inserting a rigid definition, the Court stated that the meaning must be found in the "evolving standards of decency that mark the progress of a maturing society." (11) In deciding what constituted "evolving standards of decency," the Court looked to international law. (12) The reality of a punishment such as loss of citizenship was not physical, but instead, stripped the offender of all political rights and left him stateless. (13) At the rime of this decision, denationalization was the punishment for desertion in only two other countries, the Philippines and Turkey. (14) These statistics led the Court to declare denationalization "a fate universally decried by civilized people," thereby establishing that it did not fall within the "standard of decency." (15)

    2. DEATH PENALTY AND THE EIGHTH AMENDMENT--THE CONSENSUS ANALYSIS

      1. Coker v. Georgia--Death Penalty for a Crime less than Murder

        In Coker v. Georgia, (16) the Court struck down a Georgia statute that allowed persons convicted of rape to be sentenced to death. (17) The Court found that there was a consensus against the proportionality of this punishment within the United States and around the world. (18) Following Furman v. Georgia, (19) only three out of sixteen states that had revised their death penalty sentencing schemes to ensure constitutionality included death as an available sentence for a rape conviction. (20) No state that had previously excluded death for a rape conviction imposed the penalty in their new statute. (21) Nineteen states had recently enacted death penalty statutes and none of them had included rape as a capital offense. (22) Overall, at the time of this decision, Georgia was the only jurisdiction that allowed a death sentence to be imposed upon an individual convicted of the rape of an adult woman. (23)

        Beyond the legislation relating to rape and the death penalty, the Court considered jury verdicts persuasive in finding a national consensus against imposing a death sentence for rape. (24) In Georgia, nine out of ten juries had not imposed death on a convicted rapist. (25) These two considerations led the Court to find that death was a "grossly disproportionate and excessive punishment for the crime of rape and ... therefore forbidden by the Eighth Amendment as cruel and unusual punishment." (26)

      2. Enmund v. Florida--Culpability and the Death Penalty

        In Enmund v. Florida, (27) the Court declared unconstitutional a Florida statute that allowed persons who had been convicted of felony murder but had "neither [taken] life, attempted to take lire, nor intended to take life" to be sentenced to death. (28) The Court followed the pattern of reasoning established in Coker. (29) The Court first analyzed various state laws with respect to punishment of an offender such as Enmund. (30) It found that only eight states expressly permitted such an offender to be given a sentence of death. (31) The Court recognized that the legislation did not reflect a unanimous condemnation of such punishment and as such was not dispositive; instead it found the state laws to be a factor of substantial weight. (32) The Court then looked to the sentencing patterns of juries to shed light on society's reaction to the death penalty in the case of felony murder. (33) It found that only six people (all executed prior to 1955) out of the 362 executed since 1954 had been convicted as a non-triggerman felony murderer. (34) These two factors combined to establish a consensus against the death penalty for an offender who did not kill nor contemplate death during the offense. (35)

      3. Thompson v. Oklahoma--Age and the Death Penalty

        In Thompson v. Oklahoma,36 the Court held that a national consensus existed against the execution of an offender who was under the age of sixteen at the time of the offense. (37) In 1988, fourteen states did not allow any kinds of executions and nineteen states did not specify a minimum age in their death penalty statutes. (38) The remaining eighteen states had established a minimum age and "all of them require[d] that the defendant have attained at least the age of 16 at the time of the capital offense." (39) The Court also stated that professional organizations and the international community decried such punishment. (40)

        In this case, the Court did not hold that a national consensus against the punishment was enough to be "cruel and unusual punishment'; instead they looked beyond the objective indicia to the culpability of juvenile offenders. (41) Prior court precedent stated that, based on juveniles' "[i]nexperience, less education, and less intelligence," they were inherently less culpable than adults for crimes of similar magnitude. (42) This diminished culpability led the Court to conclude that the principle of retribution was not served by sentencing an offender under the age of sixteen to death. (43)

      4. Stanford v. Kentucky--Age and the Death Penalty Revisited

        In Stanford v. Kentucky, (44) the Court again confronted the issue of a minimum age of eligibility for the death penalty. (45) The plurality opinion, written by Justice Scalia, determined that there was not a national consensus against the execution of sixteen or seventeen-year-old offenders. (46) The fact that fifteen states did not impose death upon anyone under the age of seventeen and twelve states set the bar at eighteen did not meet the Court's requirement for a national consensus. (47) The individualized consideration given to age as a mitigating circumstance was enough to ensure that an offender was properly culpable for the death penalty. (48) The lack of a national consensus was enough to preclude the Court from looking at outside sources such as public interest polls and the views of professional organizations. (49) "[O]ur job is to identify the 'evolving standards of decency'; to determine, not what they should be, but what they are." (50)

      5. Penry v. Lynaugh--Mental Retardation and the Death Penalty

        Prior to the Court's decision in Atkins, Penry v. Lynaugh (51) set the standard for the treatment...

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