Steven J. Wernick, Constitutional Law: Elimination of the Juvenile Death Penalty- Substituting Moral Judgment for a True National Consensus

58 Fla. L. Rev. 471 (2006) | | | |

TEXT :: Respondent was convicted of first-degree murder for the torturous abduction and drowning of a woman and was sentenced to death upon the recommendation of the jury. Respondent committed these brutal acts as a seventeen year-old high school student. Despite his age, Respondent was tried as an adult for his crimes. Respondent challenged the ruling, contending that recent Supreme Court jurisprudence established that execution of juvenile offenders amounted to cruel and unusual punishment under the Eighth Amendment. The Missouri Supreme Court set aside the sentence, holding that a national consensus had developed in opposition to the execution of juvenile offenders. The Supreme Court granted certiorari, and in affirming the decision, HELD, that the Eighth Amendment prohibits the imposition of capital punishment on offenders under the age of eighteen at the time of offense.

The Eighth Amendment explicitly prohibits the imposition of cruel and unusual punishment on criminal offenders. In addition to those acts considered cruel and unusual at the time of adoption of the Bill of Rights, the Supreme Court measures the challenged punishment against “the evolving standards of decency that mark the progress of a maturing society.” The Court relies foremost on well-established, objective indicia of consensus. While the Court has ruled that the death penalty itself is not unconstitutional on a number of occasions, the Court has found the death penalty to be cruel and unusual punishment for certain crimes or as imposed on particular offenders. As more challenges to the use of capital punishment have arisen, the Court has increasingly shown its willingness to introduce its own moral judgment in interpreting contemporary standards of decency.

In Coker v. Georgia, the Court first articulated its reliance on independent moral judgment in addressing the suitability of the death penalty. In Coker, the Court considered whether the death penalty is cruel and unusual punishment for the rape of an adult woman. Petitioner, having escaped from a local correctional facility, entered the home of an adult woman and forcibly raped her at knifepoint. Petitioner was convicted and sentenced to death by electrocution. On appeal, the Court reversed, holding that the death penalty for the crime of rape of an adult woman is a disproportionate and excessive punishment and is prohibited under the Eighth Amendment.

A plurality of the Court determined that broad legislative rejection of imposition of the death penalty for rape confirmed the independent judgment of the plurality. The plurality reasoned that rape should not be punished by death because, unlike murder, it does not involve “the unjustified taking of human life.” The dissent argued that the Court, in considering its own moral judgment, extended its traditionally limited role. While recognizing the primacy of objective factors, the plurality insisted on giving credence to its own judgment in determining when a punishment is cruel and unusual under the Eighth Amendment.


In Stanford v. Kentucky, a plurality of the Court explicitly rejected the idea that its own independent judgment was relevant in the acceptability of the imposition of capital punishment on juvenile offenders who were sixteen and seventeen years of age at the time of the offense. In two separate instances, petitioners committed brutal killings while participating in a robbery. Both petitioners were tried as adults, convicted of murder, and sentenced to death. Petitioners appealed the conviction, arguing that “‘evolving standards of decency’” prohibited the death penalty for all juvenile offenders. In denying the appeals, the plurality refused to consider its own judgment and held that petitioners failed to establish a national consensus against imposition of the death penalty.

The plurality in Stanford strongly rejected any notion that its job involved shaping the contours of contemporary standards of decency. Rather, the Court suggested that the best evidence of American societal conceptions of what constitutes cruel and unusual punishment lies in state statutes and, to a lesser degree, the sentencing practices of juries. The dissent argued that the Eighth Amendment was designed to protect fundamental rights from the power of popular decision-making, and it called on the Court to employ its own judgment as ultimate arbiter. The Court disagreed, stating that the Eighth Amendment was intended to protect individuals from the will of the Court as well as majoritarian politics. Thus, in Stanford, the Court declined to rely on its own judgment and upheld petitioners’ convictions and sentences.

Thirteen years later in Atkins v. Virginia, the Court once again leaned on its own moral judgment to determine whether the execution of mentally retarded offenders amounted to cruel and unusual punishment under the Eighth Amendment. Petitioner had robbed and killed a man for no apparent reason. Despite expert testimony regarding lack of mental capacity, petitioner was convicted of capital murder and sentenced to death. The Supreme Court of Virginia affirmed the imposition of the death penalty. However, on certiorari, the Court reversed, concluding that “‘evolving standards of decency’” had turned against imposition of the death penalty for mentally retarded criminals.

The Court in Atkins stated that in cases in which there exists objective evidence of a national consensus against the death penalty, the Court imparts its own judgment to determine whether there may be reason to deviate from the judgment of state legislatures. Despite argument from the dissent that prisoners could easily feign mental retardation, the Court reasoned that because of inherent mental deficiencies, imposing the death penalty on mentally retarded offenders serves neither of the social goals of deterrence and retribution. Thus, as in Coker, the Court considered its own moral judgment in abolishing the death penalty for mentally retarded offenders.

Explicitly rejecting Stanford, the instant Court applied the Atkins analysis for determining whether the Eighth Amendment precludes imposition of the death penalty on juvenile offenders. In proclaiming that “penological justifications for the death penalty” do not apply to juvenile offenders, the instant Court held that execution of juvenile offenders was inconsistent with evolving standards of decency. Unlike the Court in Stanford, the instant Court embraced its role in defining contemporary standards and reaffirmed the notion that cruel and unusual punishment is a concept subject to re- interpretation.

The instant Court began its analysis by evaluating the current status of juvenile offenders within state statutes and courtrooms. The instant Court identified thirty states that precluded the death penalty for juvenile offenders, including twelve states that explicitly rejected the death penalty altogether and eighteen of thirty-eight states that authorized the death penalty by statute. Even in the states that had not abolished the death penalty by statute, the instant Court found evidence that juries rarely imposed the death sentence on juvenile offenders. The instant Court stated that while only five states had taken affirmative action to abolish the juvenile death penalty since Stanford, the consistent direction of the change is significant.

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