Roper v. Simmons: the collision of national consensus and proportionality review.

Author:Myers, Wayne
 
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  1. INTRODUCTION

    In 1989, the Supreme Court held in Stanford v. Kentucky that imposing the death penalty on criminals who were under the age of eighteen at the time of their crime did not violate the Eighth Amendment's prohibition against cruel and unusual punishment. (1) The Court ruled that determining whether a punishment was cruel or unusual demanded an inquiry into the "evolving standards of decency" in society at that particular moment in time toward the punishment in question. (2) Thus, for example, while drawing and quartering, beheading, or burning people alive were not always considered cruel and unusual punishments, today our standards of decency hold such sentences are no longer a socially acceptable form of punishment. (3) In Stanford, the Court found that the standards of decency in 1989 did not indicate a clear national consensus against executing capital offenders for crimes committed while the offender was under the age of eighteen. (4) Accordingly, the Stanford Court held that the individual states retained discretion whether to permit the death penalty for juvenile capital offenders. (5) However, the Court's framework implicitly left open the possibility that an evolution in American society's standards of decency could render its 1989 determinations moot, thereby triggering Eighth Amendment protections for juvenile offenders facing a death sentence if such a punishment were found to be cruel and unusual in light of American society's ever-evolving standards of decency. (6)

    In 2004, Christopher Simmons, sentenced to death for a first degree murder committed at age seventeen, challenged his death sentence on precisely those grounds, arguing that the standards of decency in American society had evolved to the point that a national consensus existed against executing a criminal for crimes he committed while under the age of eighteen, and that therefore his death sentence was cruel and unusual punishment in violation of the Eighth Amendment. (7) Simmons relied upon the Supreme Court's 2002 decision in Atkins v. Virginia that the Eighth Amendment prohibits the execution of mentally retarded persons because such persons categorically lack the mental culpability to be held fully accountable for their criminal actions, and, therefore, imposing the death penalty, the punishment reserved only for the most culpable of offenders, is cruel and unusual. (8) Analogously, Simmons argued that minors under the age of eighteen should not be held fully accountable for their crimes because, like mentally retarded persons, they had not reached full intellectual maturity and therefore did not possess the requisite culpability necessary to justify the imposition of the death penalty.

    Undoubtedly, the Roper decision is a logical outgrowth of the Supreme Court's landmark decision in Atkins. Atkins restricted the autonomy of the states to make individualized determinations of culpability for mentally retarded persons, instead declaring that mentally retarded persons, as a class, were entitled to the presumption that they lacked the necessary level of criminal culpability for a state to impose the death penalty. The Court's decision was rooted in two central findings. First, the Court found that the indicia of national consensus indicated that the majority of American society did not approve of executing the mentally retarded. (9) Second, the Court found that the death penalty was inherently disproportionate for mentally retarded persons because their cognitive impairments made them less than fully accountable for their actions. (10) Unsurprisingly, Roper extends this line of reasoning to the juvenile death penalty, holding that the immaturity and imperfect intellectual development of sixteen and seventeen-year-olds, similar to the cognitive impairments of mentally retarded persons in Atkins, prevents them from having sufficient responsibility for their actions to warrant the death penalty. (11) Roper also contends that the indicia of national consensus show that American society no longer approves of the death penalty for juvenile offenders. (12) Accordingly, the Roper decision is consistent with the reasoning of Atkins.

    However, although Roper follows in the footsteps of Atkins, it does not mean the precedent set in Atkins ought to have been continued. In deciding Roper, the Court once again undermines the legitimacy and competency of the American jury system and continues to tread on state autonomy by making broad prohibitions against the death penalty for entire classes of citizens. Exceeding the scope of Atkins, the Roper court delves into the comparatively murkier issues regarding the culpability of mentally astute seventeen-year-olds, and permanently removes the question of a juvenile's ultimate accountability from the dominion of the states.

    In addition to usurping state autonomy, the Roper decision is problematic because it is based on an unconvincing measure of what constitutes a national consensus. Moreover, the Court forwardly adopts the view that its independent judgment is essential to determine the acceptability of a particular punishment under the Eighth Amendment. (13) These developments are a fundamental alteration of Eighth Amendment jurisprudence, undercutting the centrality of a national consensus established in Stanford and reaffirmed in Atkins. This Note argues that Roper, while internally consistent with Atkins, illustrates the Court's willingness to continue chipping away at the role of states and juries in criminal sentencing proceedings by reducing the threshold necessary to establish a national consensus and focusing Eighth Amendment jurisprudence on the Justices' subjective judgment regarding the bounds of acceptable punishment.

  2. HISTORICAL EVOLUTION OF THE EIGHTH AMENDMENT

    1. THE BEGINNING OF MODERN EIGHTH AMENDMENT JURISPRUDENCE: WEEMS V. UNITED STATES

      The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (14) The origins of modern Eighth Amendment jurisprudence can be traced to Weems v. United States, where the Supreme Court held it was cruel and unusual punishment to punish a man convicted of falsifying government documents to a sentence of "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." (15) The Court speculated that because of the Eighth Amendment's vagueness, it "may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice." (16) The Court further explained that the Eighth Amendment reflected an underlying belief that a punishment must be "graduated and proportioned to the offense." (17) The Court ultimately concluded that the fact that there was no difference in the punishment for falsifying public documents resulting in small thefts and the punishment for falsifying public documents resulting in large thefts made the twelve-year sentence excessive and unusually severe, because the sentence did not proportionally serve the government's interest in preventing the falsification of documents. (18)

    2. EVOLVING STANDARDS OF DECENCY: TROP K DULLES

      Several decades later, the Supreme Court held in Trop v. Dulles that it was cruel and unusual punishment to revoke the citizenship of military deserters. (19) The majority explained:

      While the state has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. (20) Coining a phrase that continues to dominate today's Eighth Amendment jurisprudence, the Court declared, "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." (21) The Court determined that revoking an individual's citizenship would subject that individual to a lifetime of banishment and statelessness, a fate that was universally condemned by the views of the civilized nations of the world and permitted only in two other nations. (22) Based on these findings, the Court concluded that the Eighth Amendment prohibited Congress from revoking a person's citizenship. (23)

    3. A TWO-PRONG TEST EMERGES: GREGG V. GEORGIA

      A more definitive framework evolved several years later in Gregg v. Georgia, where the Court affirmed the death sentence of a man convicted of first-degree murder. (24) A two-pronged test was announced to determine whether a punishment was acceptable under the Eighth Amendment. (25) First, the Court examined modern standards of decency to evaluate whether there was a national consensus against the death penalty. (26) The Court explained that the Eighth Amendment's prohibition of cruel and unusual punishment did not apply only to punishments prohibited in the eighteenth century, but that the "[a]mendment has been interpreted in a flexible and dynamic manner." (27) Recycling language from Trop, the Court stated that the "Eighth Amendment must draw its meaning from the evolving standards of decency which mark the progress of a maturing society." (28) This determination "requires that the court look to the objective indicia which reflect the public attitude toward a given sanction." (29) The Court found that contemporary society had endorsed the death penalty as illustrated by thirty-five state laws that provided for it. (30)

      Second, the Court declared that a penalty must "accord with the dignity of man" which was construed to prohibit excessive punishments. (31) An excessive punishment is one that leads to "unnecessary and wanton infliction of pain" or is "grossly out...

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