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SUPREME COURT OF THE UNITED STATES
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No. 87-5765
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1989.SCT.43271 <http://www.versuslaw.com>; 492 U.S. 361, 109
S. Ct. 2969, 106 L. Ed. 2d 306, 57 U.S.L.W. 4973
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decided*fn*: June 26, 1989.
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STANFORD
v.
KENTUCKY
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CERTIORARI TO THE SUPREME COURT OF KENTUCKY.
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Frank W. Heft, Jr., argued the cause for petitioner in No. 87-5765.
With him on the briefs were J. David Niehaus and Daniel T. Goyette. Nancy
A. McKerrow argued the cause and filed briefs for petitioner in No.
87-6026.
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Frederic J. Cowan, Attorney General of Kentucky, argued the cause for
respondent in No. 87-5765. With him on the brief were Elizabeth Ann
Myerscough and David A. Smith, Assistant Attorneys General. John M. Morris
III, Assistant Attorney General of Missouri, argued the cause for
respondent in No. 87-6026. With him on the brief was William L. Webster,
Attorney General.*fn**
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Scalia, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, III, and IV-A, in which
Rehnquist, C. J., and White, O'Connor, and Kennedy, JJ., joined, and an
opinion with respect to Parts IV-B and V, in which Rehnquist, C. J., and
White and Kennedy, JJ., joined. O'Connor, J., filed an opinion concurring
in part and concurring in the judgment, post, p. 380. Brennan, J., filed a
dissenting opinion, in which Marshall, Blackmun, and Stevens, JJ., joined,
post, p. 382.
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Author: Scalia
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JUSTICE SCALIA announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, III, and IV-A, and an
opinion with respect to Parts IV-B and V, in which THE CHIEF JUSTICE,
JUSTICE WHITE, and JUSTICE KENNEDY join.
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These two consolidated cases require us to decide whether the
imposition of capital punishment on an individual for a crime
committed at 16 or 17 years of age constitutes cruel and unusual
punishment under the Eighth Amendment.
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I
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The first case, No. 87-5765, involves the shooting death of
20-year-old Barbel Poore in Jefferson County, Kentucky. Petitioner Kevin
Stanford committed the murder on January 7, 1981, when he was
approximately 17 years and 4 months of age. Stanford and his accomplice
repeatedly raped and sodomized Poore during and after their commission of
a robbery at a gas station where she worked as an attendant. They then
drove her to a secluded area near the station, where Stanford shot her
point-blank in the face and then in the back of her head. The proceeds
from the robbery were roughly 300 cartons of cigarettes, two gallons of
fuel, and a small amount of cash. A corrections officer testified that
petitioner explained the murder as follows: "'He said, I had to shoot her,
[she] lived next door to me and she would recognize me. . . . I guess we
could have tied her up or something or beat [her up] . . . and tell her if
she tells, we would kill her. . . . Then after he said that he started
laughing.'" 734 S. W. 2d 781, 788 (Ky. 1987).
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After Stanford's arrest, a Kentucky juvenile court conducted hearings
to determine whether he should be transferred for trial as an adult under
Ky. Rev. Stat. Ann. § 208.170 (Michie 1982). That statute provided that
juvenile court jurisdiction could be waived and an offender tried as an
adult if he was either charged with a Class A felony or capital crime, or
was over 16 years of age and charged with a felony. Stressing the
seriousness of petitioner's offenses and the unsuccessful attempts of the
juvenile system to treat him for numerous instances of past delinquency,
the juvenile court found certification for trial as an adult to be in the
best interest of petitioner and the community. Stanford
was convicted of murder, first-degree sodomy, first-degree robbery, and
receiving stolen property, and was sentenced to death and 45 years in
prison. The Kentucky Supreme Court affirmed the death sentence, rejecting
Stanford's "demand that he has a constitutional right to treatment." 734
S. W. 2d, at 792. Finding that the record clearly demonstrated that "there
was no program or treatment appropriate for the appellant in the juvenile
justice system," the court held that the juvenile court did not err in
certifying petitioner for trial as an adult. The court also stated that
petitioner's "age and the possibility that he might be rehabilitated were
mitigating factors appropriately left to the consideration of the jury
that tried him." Ibid.
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The second case before us today, No. 87-6026, involves the stabbing
death of Nancy Allen, a 26-year-old mother of two who was working behind
the sales counter of the convenience store she and David Allen owned and
operated in Avondale, Missouri. Petitioner Heath Wilkins committed the
murder on July 27, 1985, when he was approximately 16 years and 6 months
of age. The record reflects that Wilkins' plan was to rob the store and
murder "whoever was behind the counter" because "a dead person can't
talk." While Wilkins' accomplice, Patrick Stevens, held Allen, Wilkins
stabbed her, causing her to fall to the floor. When Stevens had trouble
operating the cash register, Allen spoke up to assist him, leading Wilkins
to stab her three more times in her chest. Two of these wounds penetrated
the victim's heart. When Allen began to beg for her life, Wilkins stabbed
her four more times in the neck, opening her carotid artery. After helping
themselves to liquor, cigarettes, rolling papers, and approximately $450
in cash and checks, Wilkins and Stevens left Allen to die on the
floor.
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Because he was roughly six months short of the age of majority for
purposes of criminal prosecution, Mo. Rev. Stat. § 211.021(1) (1986),
Wilkins could not automatically be tried
as an adult under Missouri law. Before that could happen, the juvenile
court was required to terminate juvenile court jurisdiction and certify
Wilkins for trial as an adult under § 211.071, which permits individuals
between 14 and 17 years of age who have committed felonies to be tried as
adults. Relying on the "viciousness, force and violence" of the alleged
crime, petitioner's maturity, and the failure of the juvenile justice
system to rehabilitate him after previous delinquent acts, the juvenile
court made the necessary certification.
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Wilkins was charged with first-degree murder, armed criminal action,
and carrying a concealed weapon. After the court found him competent,
petitioner entered guilty pleas to all charges. A punishment hearing was
held, at which both the State and petitioner himself urged imposition of
the death sentence. Evidence at the hearing revealed that petitioner had
been in and out of juvenile facilities since the age of eight for various
acts of burglary, theft, and arson, had attempted to kill his mother by
putting insecticide into Tylenol capsules, and had killed several animals
in his neighborhood. Although psychiatric testimony indicated that Wilkins
had "personality disorders," the witnesses agreed that Wilkins was aware
of his actions and could distinguish right from wrong.
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Determining that the death penalty was appropriate, the trial court
entered the following order:
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"The court finds beyond reasonable doubt that the following
aggravating circumstances exist:
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"1. The murder in the first degree was committed while the defendant
was engaged in the perpetration of the felony of robbery,
and
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"2. The murder in the first degree involved depravity of mind and that
as a result thereof, it was outrageously or wantonly vile, horrible or
inhuman." App. in No. 87-6026, p. 77. On
mandatory review of Wilkins' death sentence, the Supreme Court of Missouri
affirmed, rejecting the argument that the punishment violated the Eighth
Amendment. 736 S. W. 2d 409 (1987).
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We granted certiorari in these cases, 488 U.S. 887 (1988) and 487 U.S. 1233 (1988), to
decide whether the Eighth Amendment precludes the death penalty for
individuals who commit crimes at 16 or 17 years of age.
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II
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The thrust of both Wilkins' and Stanford's arguments is that
imposition of the death penalty on those who were juveniles when they
committed their crimes falls within the Eighth Amendment's prohibition
against "cruel and unusual punishments." Wilkins would have us define
juveniles as individuals 16 years of age and under; Stanford would draw
the line at 17.
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Neither petitioner asserts that his sentence constitutes one of "those
modes or acts of punishment that had been considered cruel and unusual at
the time that the Bill of Rights was adopted." Ford v. Wainwright, 477 U.S. 399, 405 (1986). Nor could they support such
a contention. At that time, the common law set the rebuttable presumption
of incapacity to commit any felony at the age of 14, and theoretically
permitted capital punishment to be imposed on anyone over the age of 7.
See 4 W. Blackstone, Commentaries *23-24; 1 M. Hale, Pleas of the Crown
24-29 (1800). See also In re Gault, 387 U.S. 1, 16
(1967); Streib, Death Penalty for Children: The American Experience with
Capital Punishment for Crimes Committed While Under Age Eighteen, 36 Okla.
L. Rev. 613, 614-615 (1983); Kean, The History of the Criminal Liability
of Children, 53 L. Q. Rev. 364, 369-370 (1937). In accordance with the
standards of this common-law tradition, at least 281 offenders under the
age of 18 have been executed in this country, and at least 126 under the
age of 17. See V. Streib, Death Penalty for Juveniles 57 (1987). Thus
petitioners are left to argue that their punishment is contrary to the
"evolving standards of decency that mark the progress of a maturing
society," Trop v. Dulles, 356 U.S. 86, 101 (1958)
(plurality opinion). They are correct in asserting that this Court has
"not confined the prohibition embodied in the Eighth Amendment to
'barbarous' methods that were generally outlawed in the 18th century," but
instead has interpreted the Amendment "in a flexible and dynamic manner."
Gregg v. Georgia, 428 U.S. 153, 171 (1976) (opinion
of Stewart, Powell, and STEVENS, JJ.). In determining what standards have
"evolved," however, we have looked not to our own conceptions of decency,
but to those of modern American society as a whole.*fn1 As we have said, "Eighth Amendment
judgments should not be, or appear to be, merely the subjective views of
individual Justices; judgment should be informed by objective factors to
the maximum possible extent." Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion). See also Penry v. Lynaugh,
ante, at 331; Ford v. Wainwright, supra, at 406; Enmund v. Florida, 458 U.S. 782, 788-789 (1982); Furman v. Georgia, 408 U.S. 238, 277-279 (1972) (BRENNAN, J.,
concurring). This approach is dictated both by the language of the
Amendment -- which proscribes only those punishments that are both "cruel
and unusual" -- and by the "deference we owe to the decisions of
the state legislatures under our federal system," Gregg v. Georgia, supra,
at 176.
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III
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"First" among the "'objective indicia that reflect the public attitude
toward a given sanction'" are statutes passed by society's elected
representatives. McCleskey v. Kemp, 481 U.S. 279, 300
(1987), quoting Gregg v. Georgia, supra, at 173. Of the 37 States whose
laws permit capital punishment, 15 decline to impose it upon 16-year-old
offenders and 12 decline to impose it on 17-year-old offenders.*fn2 This does not
establish the degree of national consensus this Court has previously
thought sufficient to label a particular punishment cruel and unusual. In
invalidating the death penalty for rape of an adult woman, we stressed
that Georgia was the sole jurisdiction that authorized such a punishment.
See Coker v. Georgia, supra, at 595-596. In striking down capital
punishment for participation in a robbery in which an accomplice takes a
life, we emphasized that only eight jurisdictions authorized similar
punishment. Enmund v. Florida, supra, at 792. In finding that the Eighth
Amendment precludes execution of the insane and thus requires an adequate
hearing on the issue of sanity, we relied upon (in addition to the
common-law rule) the fact that "no State in the Union" permitted such
punishment. Ford v. Wainwright, 477 U.S., at 408. And
in striking down a life sentence without parole under a recidivist
statute, we stressed that "it appears that [petitioner] was treated more
severely than he would have been in any other State." Solem v. Helm, 463 U.S. 277, 300 (1983).
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Since a majority of the States that permit capital punishment
authorize it for crimes committed at age 16 or above,*fn3 petitioners' cases are more analogous to
Tison v. Arizona, 481 U.S. 137 (1987), than Coker,
Enmund, Ford, and Solem. In Tison, which upheld Arizona's imposition of
the death penalty for major participation in a felony with reckless
indifference to human life, we noted that only 11 of those jurisdictions imposing
capital punishment rejected its use in such circumstances. Id., at 154. As
we noted earlier, here the number is 15 for offenders under 17, and 12 for
offenders under 18. We think the same conclusion as in Tison is required
in this case.
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Petitioners make much of the recently enacted federal statute
providing capital punishment for certain drug-related offenses, but
limiting that punishment to offenders 18 and over. The Anti-Drug Abuse Act
of 1988, Pub. L. 100-690, 102 Stat. 4390, § 7001(1), 21 U. S. C. § 848(l)
(1988 ed.). That reliance is entirely misplaced. To begin with, the
statute in question does not embody a judgment by the Federal Legislature
that no murder is heinous enough to warrant the execution of such a
youthful offender, but merely that the narrow class of offense it defines
is not. The congressional judgment on the broader question, if apparent at
all, is to be found in the law that permits 16- and 17-year-olds (after
appropriate findings) to be tried and punished as adults for all federal
offenses, including those bearing a capital penalty that is not limited to
18-year-olds.*fn4 See 18 U. S. C. § 5032 (1982 ed., Supp. V).
Moreover, even if it were true that no federal
statute permitted the execution of persons under 18, that would not
remotely establish -- in the face of a substantial number of state
statutes to the contrary -- a national consensus that such punishment is
inhumane, any more than the absence of a federal lottery establishes a
national consensus that lotteries are socially harmful. To be sure, the
absence of a federal death penalty for 16- or 17-year-olds (if it existed)
might be evidence that there is no national consensus in favor of such
punishment. It is not the burden of Kentucky and Missouri, however, to
establish a national consensus approving what their citizens have voted to
do; rather, it is the "heavy burden" of petitioners, Gregg v. Georgia, 428 U.S., at 175, to establish a national consensus
against it. As far as the primary and most reliable indication of
consensus is concerned -- the pattern of enacted laws -- petitioners have
failed to carry that burden.
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IV
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A
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Wilkins and Stanford argue, however, that even if the laws themselves
do not establish a settled consensus, the application of the laws does.
That contemporary society views capital punishment of 16- and 17-year-old
offenders as inappropriate is demonstrated, they say, by the reluctance of
juries to impose, and prosecutors to seek, such sentences. Petitioners are
quite correct that a far smaller number of offenders under 18 than over 18
have been sentenced to death in this country. From 1982 through 1988, for
example, out of 2,106 total death sentences, only 15 were imposed on
individuals who were 16 or under when they committed their crimes, and
only 30 on individuals who were 17 at the time of the crime. See Streib,
Imposition of Death Sentences For Juvenile Offenses, January 1, 1982,
Through April 1, 1989, p. 2 (paper for Cleveland-Marshall College of Law,
April 5, 1989). And it appears that actual executions for crimes committed
under age 18 accounted for only about two percent of the total number of
executions that occurred between 1642 and
1986. See Streib, Death Penalty for Juveniles, at 55, 57. As Wilkins
points out, the last execution of a person who committed a crime under 17
years of age occurred in 1959. These statistics, however, carry little
significance. Given the undisputed fact that a far smaller percentage of
capital crimes are committed by persons under 18 than over 18, the
discrepancy in treatment is much less than might seem. Granted, however,
that a substantial discrepancy exists, that does not establish the
requisite proposition that the death sentence for offenders under 18 is
categorically unacceptable to prosecutors and juries. To the contrary, it
is not only possible, but overwhelmingly probable, that the very
considerations which induce petitioners and their supporters to believe
that death should never be imposed on offenders under 18 cause prosecutors
and juries to believe that it should rarely be imposed.
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B
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This last point suggests why there is also no relevance to the laws
cited by petitioners and their amici which set 18 or more as the legal age
for engaging in various activities, ranging from driving to drinking
alcoholic beverages to voting. It is, to begin with, absurd to think that
one must be mature enough to drive carefully, to drink responsibly, or to
vote intelligently, in order to be mature enough to understand that
murdering another human being is profoundly wrong, and to conform one's
conduct to that most minimal of all civilized standards. But even if the
requisite degrees of maturity were comparable, the age statutes in
question would still not be relevant. They do not represent a social
judgment that all persons under the designated ages are not responsible
enough to drive, to drink, or to vote, but at most a judgment that the
vast majority are not. These laws set the appropriate ages for the
operation of a system that makes its determinations in gross, and that
does not conduct individualized maturity tests for each driver, drinker,
or voter. The criminal
justice system, however, does provide individualized testing. In the realm
of capital punishment in particular, "individualized consideration [is] a
constitutional requirement," Lockett v. Ohio, 438 U.S. 586, 605 (1978) (opinion of Burger, C. J.) (footnote omitted);
see also Zant v. Stephens, 462 U.S. 862, 879 (1983)
(collecting cases), and one of the individualized mitigating factors that
sentencers must be permitted to consider is the defendant's age, see
Eddings v. Oklahoma, 455 U.S. 104, 115-116 (1982).
Twenty-nine States, including both Kentucky and Missouri, have codified
this constitutional requirement in laws specifically designating the
defendant's age as a mitigating factor in capital cases.*fn5 Moreover, the determinations required by
juvenile transfer statutes to certify a juvenile for trial as an adult
ensure individualized consideration of the maturity and moral
responsibility of 16- and 17-year-old offenders before they are even held
to stand trial as adults.*fn6 The application of this particularized
system to the petitioners can be declared constitutionally inadequate only
if there is a consensus, not that 17 or 18 is the age at which most
persons, or even almost all persons, achieve sufficient maturity to be
held fully responsible for murder; but that 17 or 18 is the age before
which no one can reasonably be held fully responsible. What displays
society's views on this latter point are not the ages set forth in the
generalized system of driving, drinking, and voting laws cited by
petitioners and their amici, but the ages at which
the States permit their particularized capital punishment systems to be
applied.*fn7
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V
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Having failed to establish a consensus against capital punishment for
16- and 17-year-old offenders through state and federal statutes and the
behavior of prosecutors and juries, petitioners seek to demonstrate it
through other indicia, including public opinion polls, the views of
interest groups, and the positions adopted by various professional
associations. We decline the invitation to rest constitutional law upon
such uncertain foundations. A revised national consensus so broad, so
clear, and so enduring as to justify a permanent prohibition upon all
units of democratic government must appear in the operative acts (laws and
the application of laws) that the people have approved.
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We also reject petitioners' argument that we should invalidate capital
punishment of 16- and 17-year-old offenders on the ground that it fails to
serve the legitimate goals of penology. According to petitioners, it fails
to deter because juveniles, possessing less developed cognitive skills
than adults, are less likely to fear death; and it fails to exact just
retribution because juveniles, being less mature and responsible, are also
less morally blameworthy. In support of these claims, petitioners and
their supporting amici marshall an array of socioscientific
evidence concerning the psychological and emotional development of 16- and
17-year-olds.
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If such evidence could conclusively establish the entire lack of
deterrent effect and moral responsibility, resort to the Cruel and Unusual
Punishments Clause would be unnecessary; the Equal Protection Clause of
the Fourteenth Amendment would invalidate these laws for lack of rational
basis. See Dallas v. Stanglin, 490 U.S. 19 (1989).
But as the adjective "socioscientific" suggests (and insofar as evaluation
of moral responsibility is concerned perhaps the adjective
"ethicoscientific" would be more apt), it is not demonstrable that no
16-year-old is "adequately responsible" or significantly deterred. It is
rational, even if mistaken, to think the contrary. The battle must be
fought, then, on the field of the Eighth Amendment; and in that struggle
socioscientific, ethicoscientific, or even purely scientific evidence is
not an available weapon. The punishment is either "cruel and unusual" (i.
e., society has set its face against it) or it is not. The audience for
these arguments, in other words, is not this Court but the citizenry of
the United States. It is they, not we, who must be persuaded. For as we
stated earlier, our job is to identify the "evolving standards of
decency"; to determine, not what they should be, but what they are. We
have no power under the Eighth Amendment to substitute our belief in the
scientific evidence for the society's apparent skepticism. In short, we
emphatically reject petitioner's suggestion that the issues in this case
permit us to apply our "own informed judgment," Brief for Petitioner in
No. 87-6026, p. 23, regarding the desirability of permitting the death
penalty for crimes by 16- and 17-year-olds.
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We reject the dissent's contention that our approach, by "largely
return[ing] the task of defining the contours of Eighth Amendment
protection to political majorities," leaves "'constitutional doctrine [to]
be formulated by the acts of those institutions which the Constitution is
supposed to limit,'" post, at 391, 392 (citation omitted). When this Court
cast
loose from the historical moorings consisting of the original application
of the Eighth Amendment, it did not embark rudderless upon a wide-open
sea. Rather, it limited the Amendment's extension to those practices
contrary to the "evolving standards of decency that mark the progress of a
maturing society." Trop v. Dulles, 356 U.S., at 101
(plurality opinion) (emphasis added). It has never been thought that this
was a shorthand reference to the preferences of a majority of this Court.
By reaching a decision supported neither by constitutional text nor by the
demonstrable current standards of our citizens, the dissent displays a
failure to appreciate that "those institutions which the Constitution is
supposed to limit" include the Court itself. To say, as the dissent says,
that "'it is for us ultimately to judge whether the Eighth Amendment
permits imposition of the death penalty,'" post, at 391 (emphasis added),
quoting Enmund v. Florida, 458 U.S., at 797 -- and to
mean that as the dissent means it, i. e., that it is for us to judge, not
on the basis of what we perceive the Eighth Amendment originally
prohibited, or on the basis of what we perceive the society through its
democratic processes now overwhelmingly disapproves, but on the basis of
what we think "proportionate" and "measurably contributory to acceptable
goals of punishment" -- to say and mean that, is to replace judges of the
law with a committee of philosopher-kings.
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While the dissent is correct that several of our cases have engaged in
so-called "proportionality" analysis, examining whether "there is a
disproportion 'between the punishment imposed and the defendant's
blameworthiness,'" and whether a punishment makes any "measurable
contribution to acceptable goals of punishment," see post, at 393, we have
never invalidated a punishment on this basis alone. All of our cases
condemning a punishment under this mode of analysis also found that the
objective indicators of state laws or jury determinations evidenced a
societal consensus against that penalty. See Solem v. Helm, 463 U.S., at
299-300; standard
today, I conclude that the death sentences for capital murder imposed by
Missouri and Kentucky on petitioners Wilkins and Stanford respectively
should not be set aside because it is sufficiently clear that no national
consensus forbids the imposition of capital punishment on 16- or
17-year-old capital murderers.
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In Thompson I noted that "the most salient statistic that bears on
this case is that every single American legislature that has expressly set
a minimum age for capital punishment has set that age at 16 or above."
Id., at 849. It is this difference between Thompson and these cases, more
than any other, that convinces me there is no national consensus for
bidding the imposition of capital punishment for crimes committed at the
age of 16 and older. See ante, at 370-372. As the Court indicates, "a
majority of the States that permit capital punishment authorize it for
crimes committed at age 16 or above . . . ." Ante, at 371. Three States,
including Kentucky, have specifically set the minimum age for capital
punishment at 16, see Ind. Code § 35-50-2-3(b) (1988); Ky. Rev. Stat. Ann.
§ 640.040(1) (Baldwin 1987); Nev. Rev. Stat. § 176.025 (1987), and a
fourth, Florida, clearly contemplates the imposition of capital punishment
on 16-year-olds in its juvenile transfer statute, see Fla. Stat. §
39.02(5)(c) (1987). Under these circumstances, unlike the "peculiar
circumstances" at work in Thompson, I do not think it necessary to require
a state legislature to specify that the commission of a capital crime can
lead to the execution of a 16- or 17-year-old offender. Because it is
sufficiently clear that today no national consensus forbids the imposition
of capital punishment in these circumstances, "the implicit nature of the
[Missouri] Legislature's decision [is] not . . . constitutionally
problematic." 487 U.S., at 857. This is true, a
fortiori, in the case of Kentucky, which has specified 16 as the minimum
age for the imposition of the death penalty. The day may come when there
is such general legislative rejection of the execution of 16- or
17-year-old capital murderers that a clear national consensus
can be said to have developed. Because I do not believe that day has yet
arrived, I concur in Parts I, II, III, and IV-A of the Court's opinion,
and I concur in its judgment.
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I am unable, however, to join the remainder of the plurality's opinion
for reasons I stated in Thompson. Part V of the plurality's opinion
"emphatically reject[s]," ante, at 378, the suggestion that, beyond an
assessment of the specific enactments of American legislatures, there
remains a constitutional obligation imposed upon this Court to judge
whether the "'nexus between the punishment imposed and the defendant's
blameworthiness'" is proportional. Thompson, supra, at 853, quoting Enmund
v. Florida, 458 U.S. 782, 825 (1982) (O'CONNOR, J.,
dissenting). Part IV-B of the plurality's opinion specifically rejects as
irrelevant to Eighth Amendment considerations state statutes that
distinguish juveniles from adults for a variety of other purposes. In my
view, this Court does have a constitutional obligation to conduct
proportionality analysis. See Penry v. Lynaugh, ante, at 335-340; Tison v.
Arizona, 481 U.S. 137, 155-158 (1987); Enmund, 458 U.S., at 797-801; id., at 825-826 (O'CONNOR, J.,
dissenting). In Thompson I specifically identified age-based statutory
classifications as "relevant to Eighth Amendment proportionality
analysis." 487 U.S., at 854 (opinion concurring in
judgment). Thus, although I do not believe that these particular cases can
be resolved through proportionality analysis, see Thompson, supra, at
853-854, I reject the suggestion that the use of such analysis is improper
as a matter of Eighth Amendment jurisprudence. Accordingly, I join all but
Parts IV-B and V of the Court's opinion.
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JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and
JUSTICE STEVENS join, dissenting.
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I believe that to take the life of a person as punishment for a crime
committed when below the age of 18 is cruel and unusual and hence is
prohibited by the Eighth Amendment. The
method by which this Court assesses a claim that a punishment is
unconstitutional because it is cruel and unusual is established by our
precedents, and it bears little resemblance to the method four Members of
the Court apply in this case. To be sure, we begin the task of deciding
whether a punishment is unconstitutional by reviewing legislative
enactments and the work of sentencing juries relating to the punishment in
question to determine whether our Nation has set its face against a
punishment to an extent that it can be concluded that the punishment
offends our "evolving standards of decency." Trop v. Dulles, 356
U.S. 86, 101 (1958) (plurality opinion). The Court undertakes
such an analysis in this case. Ante, at 370-373. But JUSTICE SCALIA, in
his plurality opinion on this point, ante, at 374-380, would treat the
Eighth Amendment inquiry as complete with this investigation. I agree with
JUSTICE O'CONNOR, ante, at 382, that a more searching inquiry is mandated
by our precedents interpreting the Cruel and Unusual Punishment Clause. In
my view, that inquiry must in this case go beyond age-based statutory
classifications relating to matters other than capital punishment, cf.
ante, at 382 (O'CONNOR, J., concurring in part and concurring in
judgment), and must also encompass what JUSTICE SCALIA calls, with evident
but misplaced disdain, "ethicoscientific" evidence. Only then can we be in
a position to judge, as our cases require, whether a punishment is
unconstitutionally excessive, either because it is disproportionate given
the culpability of the offender, or because it serves no legitimate penal
goal.
|
| [46] |
I
|
| [47] |
Our judgment about the constitutionality of a punishment under the
Eighth Amendment is informed, though not determined, see infra, at 391, by
an examination of contemporary attitudes toward the punishment, as
evidenced in the actions of legislatures and of juries. McCleskey v. Kemp,
481 U.S. 279, 300 (1987); Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality
opinion). The views of organizations with expertise in relevant fields and
the choices of governments elsewhere in the world also merit our attention
as indicators whether a punishment is acceptable in a civilized
society.
|
| [48] |
A
|
| [49] |
The Court's discussion of state laws concerning capital sentencing,
ante, at 370-372, gives a distorted view of the evidence of contemporary
standards that these legislative determinations provide. Currently, 12 of
the States whose statutes permit capital punishment specifically mandate
that offenders under age 18 not be sentenced to death. Ante, at 370-371,
n. 2. When one adds to these 12 States the 15 (including the District of
Columbia) in which capital punishment is not authorized at all,*fn1 it appears that the governments in fully 27
of the States have concluded that no one under 18 should face the death
penalty. A further three States explicitly refuse to authorize sentences
of death for those who committed their offense when under 17, ante, at
370, n. 2, making a total of 30 States that would not tolerate the
execution of petitioner Wilkins. Congress' most recent enactment of a
death penalty statute also excludes those under 18. Pub.
L. 100-690, § 7001(l), 102 Stat. 4390, 21 U. S. C. § 848(l) (1988
ed.).
|
| [50] |
In 19 States that have a death penalty, no minimum age for capital
sentences is set in the death penalty statute. See Thompson v. Oklahoma, 487 U.S. 815, 826-827, and n. 26 (1988), and n. 1,
supra. The notion that these States have consciously authorized the
execution of juveniles derives from the congruence in those jurisdictions
of laws permitting state courts to hand down death sentences, on the one
hand, and, on the other, statutes permitting the transfer of offenders
under 18 from the juvenile to state court systems for trial in certain
circumstances. See Thompson, supra, at 867-868, and n. 3 (SCALIA, J.,
dissenting). I would not assume, however, in considering how the States
stand on the moral issue that underlies the constitutional question with
which we are presented, that a legislature that has never specifically
considered the issue has made a conscious moral choice to permit the
execution of juveniles. See 487 U.S., at 826-827, n.
24 (plurality opinion). On a matter of such moment that most States have
expressed an explicit and contrary judgment, the decisions of legislatures
that are only implicit, and that lack the "earmarks of careful
consideration that we have required for other kinds of decisions leading
to the death penalty," id., at 857 (O'CONNOR, J., concurring in judgment),
must count for little. I do not suggest, of course, that laws of these
States cut against the constitutionality of the juvenile death penalty --
only that accuracy demands that the baseline for our deliberations should
be that 27 States refuse to authorize a sentence of death in the
circumstances of petitioner Stanford's case, and 30 would not permit
Wilkins' execution; that 19 States have not squarely faced the question;
and that only the few remaining jurisdictions have explicitly set an age
below 18 at which a person may be sentenced to death.
|
| [51] |
B
|
| [52] |
The application of these laws is another indicator the Court agrees to
be relevant. The fact that juries have on occasion sentenced
a minor to death shows, the Court says, that the death penalty for
adolescents is not categorically unacceptable to juries. Ante, at 374.
This, of course, is true; but it is not a conclusion that takes Eighth
Amendment analysis very far. Just as we have never insisted that a
punishment have been rejected unanimously by the States before we may
judge it cruel and unusual, so we have never adopted the extraordinary
view that a punishment is beyond Eighth Amendment challenge if it is
sometimes handed down by a jury. See, e. g., Enmund v. Florida,
458 U.S. 782, 792 (1982) (holding the death penalty
cruel and unusual punishment for participation in a felony in which an
accomplice commits murder, though about a third of American jurisdictions
authorized such punishment, and at least six nontriggerman felony
murderers had been executed, and three others were on death rows); Coker
v. Georgia, 433 U.S. 584, 596-597 (1977) (holding
capital punishment unconstitutional for the rape of an adult woman, though
72 persons had been executed for rape in this country since 1955, see
Enmund, supra, at 795, and though Georgia juries handed down six death
sentences for rape between 1973 and 1977). Enmund and Coker amply
demonstrate that it is no "requisite" of finding an Eighth Amendment
violation that the punishment in issue be "categorically unacceptable to
prosecutors and juries," ante, at 374 -- and, evidently, resort to the
Cruel and Unusual Punishment Clause would not be necessary to test a
sentence never imposed because categorically unacceptable to
juries.
|
| [53] |
Both in absolute and in relative terms, imposition of the death
penalty on adolescents is distinctly unusual. Adolescent offenders make up
only a small proportion of the current death-row population: 30 out of a
total of 2,186 inmates, or 1.37 percent. NAACP Legal Defense and
Educational Fund, Inc. (LDF), Death Row, U. S. A. (Mar. 1, 1989).*fn2 Eleven
minors were sentenced to die in 1982; 9 in 1983; 6 in 1984; 5 in 1985; 7
in 1986; and 2 in 1987. App. N to Brief for the Office of the Capital
Collateral Representative for the State of Florida as Amicus Curiae
(hereafter OCCR Brief). Forty-one, or 2.3 percent, of the 1,813 death
sentences imposed between January 1, 1982, and June 30, 1988, were for
juvenile crimes. Id., at 15, and App. R. And juvenile offenders are
significantly less likely to receive the death penalty than adults. During
the same period, there were 97,086 arrests of adults for homicide, and
1,772 adult death sentences, or 1.8 percent; and 8,911 arrests of minors
for homicide, compared to 41 juvenile death sentences, or 0.5 percent.
Ibid., and Apps. Q and R.*fn3
|
| [54] |
The Court speculates that this very small number of capital sentences
imposed on adolescents indicates that juries have considered the youth of
the offender when determining sentence, and have reserved the punishment
for rare cases in which it is nevertheless appropriate. Ante, at 374. The
State of Georgia made a very similar and equally conjectural argument in
Coker -- that "as a practical matter juries simply reserve the extreme
sanction for extreme cases of rape, and that recent experience . . . does
not prove that jurors consider the death penalty to be a disproportionate
punishment for every conceivable instance of rape." 433 U.S., at
597. This Court, however, summarily rejected this claim, noting
simply that in the vast majority of cases, Georgia juries had not imposed
the death sentence for rape. It is certainly true that in the vast
majority of cases, juries have not sentenced juveniles to death, and it
seems to me perfectly proper to conclude that a sentence so rarely imposed
is "unusual." C
|
| [55] |
Further indicators of contemporary standards of decency that should
inform our consideration of the Eighth Amendment question are the opinions
of respected organizations. Thompson, 487 U.S., at 830 (plurality opinion). Where organizations with expertise is
a relevant area have given careful consideration to the question of a
punishment's appropriateness, there is no reason why that judgment should
not be entitled to attention as an indicator of contemporary standards.
There is no dearth of opinion from such groups that the state-sanctioned
killing of minors is unjustified. A number, indeed, have filed briefs
amicus curiae in these cases, in support of petitioners.*fn4 The American Bar Association has adopted a
resolution opposing the imposition of capital punishment upon any person
for an offense committed while under age 18,*fn5 as has the National Council of Juvenile and
Family Court Judges.*fn6 The American Law Institute's Model Penal
Code similarly includes a lower age limit of 18 for the death sentence.*fn7 And the National Commission on Reform of
the Federal Criminal Laws also recommended that 18 be the minimum age.*fn8
|
| [56] |
Our cases recognize that objective indicators of contemporary
standards of decency in the form of legislation in other countries is also
of relevance to Eighth Amendment analysis. Thompson, supra, at 830-831;
Enmund, 458 U.S., at 796, n. 22; Coker, 433
U.S., at 596, n. 10; Trop v. Dulles, 356 U.S., at
102, and n. 35. Many countries, of course -- over 50, including
nearly all in Western Europe -- have formally abolished the death penalty,
or have limited its use to exceptional crimes such as treason. App. to
Brief for Amnesty International as Amicus Curiae. Twenty-seven others do
not in practice impose the penalty. Ibid. Of the nations that retain
capital punishment, a majority -- 65 -- prohibit the execution of
juveniles. Ibid. Sixty-one countries retain capital punishment and have no
statutory provision exempting juveniles, though some of these nations are
ratifiers of international treaties that do prohibit the execution of
juveniles. Ibid. Since 1979, Amnesty International has recorded only eight
executions of offenders under 18 throughout the world, three of these in
the United States. The other five executions were carried out in Pakistan,
Bangladesh, Rwanda, and Barbados.*fn9 In addition to national laws, three
leading human rights treaties ratified or signed by the United States explicitly
prohibit juvenile death penalties.*fn10 Within the world community, the
imposition of the death penalty for juvenile crimes appears to be
overwhelmingly disapproved.
|
| [57] |
D
|
| [58] |
Together, the rejection of the death penalty for juveniles by a
majority of the States, the rarity of the sentence for juveniles, both as
an absolute and a comparative matter, the decisions of respected
organizations in relevant fields that this punishment is unacceptable, and
its rejection generally throughout the world, provide to my mind a strong
grounding for the view that it is not constitutionally tolerable that
certain States persist in authorizing the execution of adolescent
offenders. It is unnecessary, however, to rest a view that the Eighth
Amendment prohibits the execution of minors solely upon a judgment as to
the meaning to be attached to the evidence of contemporary values outlined
above, for the execution of juveniles fails to satisfy two
well-established and independent Eighth Amendment requirements -- that a punishment
not be disproportionate, and that it make a contribution to acceptable
goals of punishment.
|
| [59] |
II
|
| [60] |
JUSTICE SCALIA forthrightly states in his plurality opinion that
Eighth Amendment analysis is at an end once legislation and jury verdicts
relating to the punishment in question are analyzed as indicators of
contemporary values. A majority of the Court rejected this revisionist
view as recently as last Term, see Thompson, 487 U.S., at
833-838 (plurality opinion); id., at 853-854 (opinion of
O'CONNOR, J.), and does so again in this case and in Penry v. Lynaugh,
ante, p. 302. We need not and should not treat this narrow range of
factors as determinative of our decision whether a punishment violates the
Constitution because it is excessive.
|
| [61] |
The Court has explicitly stated that "the attitude of state
legislatures and sentencing juries do not wholly determine" a controversy
arising under the Eighth Amendment, Coker, 433 U.S., at 597 (plurality opinion) (emphasis added), because "the
Constitution contemplates that in the end our own judgment will be brought
to bear on the question of the [constitutional] acceptability of" a
punishment, ibid. See also id., at 603-604, n. 2 (Powell, J., concurring
in judgment) ("The ultimate decision as to the appropriateness of the
death penalty under the Eighth Amendment . . . must be decided on the
basis of our own judgment in light of the precedents of this Court");
Enmund, 458 U.S., at 797 ("Although the judgments of
legislatures, juries, and prosecutors weigh heavily in the balance, it is
for us ultimately to judge whether the Eighth Amendment permits imposition
of the death penalty" in a particular class of cases).
|
| [62] |
JUSTICE SCALIA's approach would largely return the task of defining
the contours of Eighth Amendment protection to political majorities.
But
|
| [63] |
"the very purpose of a Bill of Rights was to withdraw certain subjects
from the vicissitudes of political controversy, to place them beyond the
reach of majorities and officials
and to establish them as legal principles to be applied by the courts.
One's right to life, liberty, and property, to free speech, a free press,
freedom of worship and assembly, and other fundamental rights may not be
submitted to vote; they depend on the outcome of no elections." West
Virginia Board of Education v. Barnette, 319 U.S. 624, 638 (1943).
|
| [64] |
Compare ante, at 375-377, with Whitley v. Albers, 475 U.S.
312, 318 (1986) ("The language of the Eighth Amendment . . .
manifests 'an intention to limit the power of those entrusted with the
criminal-law function of government'"). The promise of the Bill of Rights
goes unfulfilled when we leave "constitutional doctrine [to] be formulated
by the acts of those institutions which the Constitution is supposed to
limit," Radin, The Jurisprudence of Death, 126 U. Pa. L. Rev. 989, 1036
(1978), as is the case under JUSTICE SCALIA's positivist approach to the
definition of citizens' rights. This Court abandons its proven and proper
role in our constitutional system when it hands back to the very
majorities the Framers distrusted the power to define the precise scope of
protection afforded by the Bill of Rights, rather than bringing its own
judgment to bear on that question, after complete analysis.
|
| [65] |
Despite JUSTICE SCALIA's view to the contrary, however,
|
| [66] |
"our cases . . . make clear that public perceptions of standards of
decency with respect to criminal sanctions are not conclusive. A penalty
also must accord with 'the dignity of man,' which is the 'basic concept
underlying the Eighth Amendment.' . . . This means, at least, that the
punishment not be 'excessive.' . . . The inquiry into 'excessiveness' has
two aspects. First, the punishment must not involve the unnecessary and
wanton infliction of pain. . . . Second, the punishment must not be
grossly out of proportion to the severity of the crime." Gregg v. Georgia,
428 U.S. 153, 173 (1976) (opinion of Stewart, Powell,
and STEVENS, JJ.). Thus,
in addition to asking whether legislative or jury rejection of a penalty
shows that "society has set its face against it," ante, at 378, the Court
asks whether "a punishment is 'excessive' and unconstitutional" because
there is disproportion "between the punishment imposed and the defendant's
blameworthiness," ante, at 382 (opinion of O'CONNOR, J.), or because it
"makes no measurable contribution to acceptable goals of punishment and
hence is nothing more than the purposeless and needless imposition of pain
and suffering," Coker, supra, at 592 (plurality opinion). See, e. g.,
Penry, ante, at 335 (opinion of O'CONNOR, J.); ante, at 342-343 (BRENNAN,
J., concurring in part and dissenting in part).
|
| [67] |
III
|
| [68] |
There can be no doubt at this point in our constitutional history that
the Eighth Amendment forbids punishment that is wholly disproportionate to
the blameworthiness of the offender. "The constitutional principle of
proportionality has been recognized explicitly in this Court for almost a
century." Solem v. Helm, 463 U.S. 277, 286 (1983). Usually formulated as a requirement that
sentences not be "disproportionate to the crime committed," id., at 284;
see, e. g., Weems v. United States, 217 U.S. 349
(1910); O'Neil v. Vermont, 144 U.S. 323, 339-340
(1892) (Field, J., dissenting), the proportionality principle takes
account not only of the "injury to the person and to the public" caused by
a crime, but also of the "moral depravity" of the offender. Coker, supra,
at 598. The offender's culpability for his criminal acts -- "the degree of
the defendant's blameworthiness," Enmund, supra, at 815 (O'CONNOR, J.,
dissenting); see also id., at 798 (opinion of the Court) -- is thus of
central importance to the constitutionality of the sentence imposed.
Indeed, this focus on a defendant's blameworthiness runs throughout our
constitutional jurisprudence relating to capital sentencing. See, e. g.,
Booth v. Maryland, 482 U.S. 496, 502 (1987) (striking
down state statute requiring consideration by sentencer of evidence other
than defendant's record and characteristics and the circumstances of
the crime, which had no "bearing on the defendant's 'personal
responsibility and moral guilt'"); California v. Brown, 479 U.S.
538, 545 (1987) (an "emphasis on culpability in sentencing
decisions has long been reflected in Anglo-American jurisprudence. . . .
Lockett and Eddings reflect the belief that punishment should be directly
related to the personal culpability of the criminal defendant") (O'CONNOR,
J., concurring).
|
| [69] |
Proportionality analysis requires that we compare "the gravity of the
offense," understood to include not only the injury caused, but also the
defendant's culpability, with "the harshness of the penalty." Solem,
supra, at 292. In my view, juveniles so generally lack the degree of
responsibility for their crimes that is a predicate for the constitutional
imposition of the death penalty that the Eighth Amendment forbids that
they receive that punishment.
|
| [70] |
A
|
| [71] |
Legislative determinations distinguishing juveniles from adults
abound. These age-based classifications reveal much about how our society
regards juveniles as a class, and about societal beliefs regarding
adolescent levels of responsibility. See Thompson, 487 U.S., at
823-825 (plurality opinion).
|
| [72] |
The participation of juveniles in a substantial number of activities
open to adults is either barred completely or significantly restricted by
legislation. All States but two have a uniform age of majority, and have
set that age at 18 or above. OCCR Brief, App. A. No State has lowered its
voting age below 18. Id., App. C; see Thompson, supra, at 839, App. A. Nor
does any State permit a person under 18 to serve on a jury. OCCR Brief,
App. B; see Thompson, supra, at 840, App. B. Only four States ever permit
persons below 18 to marry without parental consent. OCCR Brief, App. D;
see Thompson, supra, at 843, App. D. Thirty-seven States have specific
enactments requiring that a patient have attained 18 before she may
validly consent to medical treatment. OCCR Brief, App. E. Thirty-four States
require parental consent before a person below 18 may drive a motor car.
Id., App. F; see Thompson, supra, at 842, App. C. Legislation in 42 States
prohibits those under 18 from purchasing pornographic materials. OCCR
Brief, App. G; see Thompson, supra, at 845, App. E. Where gambling is
legal, adolescents under 18 are generally not permitted to participate in
it, in some or all of its forms. OCCR Brief, App. H; see Thompson, supra,
at 847, App. F. In these and a host of other ways, minors are treated
differently from adults in our laws, which reflects the simple truth
derived from communal experience that juveniles as a class have not the
level of maturation and responsibility that we presume in adults and
consider desirable for full participation in the rights and duties of
modern life.
|
| [73] |
"The reasons why juveniles are not trusted with the privileges and
responsibilities of an adult also explain why their irresponsible conduct
is not as morally reprehensible as that of an adult." Thompson, supra, at
835 (plurality opinion). Adolescents "are more vulnerable, more impulsive,
and less self-disciplined than adults," and are without the same "capacity
to control their conduct and to think in long-range terms." Twentieth
Century Fund Task Force on Sentencing Policy Toward Young Offenders,
Confronting Youth Crime 7 (1978) (hereafter Task Force). They are
particularly impressionable and subject to peer pressure, see Eddings v.
Oklahoma, 455 U.S. 104, 115 (1982), and prone to
"experiment, risk-taking and bravado," Task Force 3. They lack
"experience, perspective, and judgment." Bellotti v. Baird, 443
U.S. 622, 635 (1979). See generally Thompson, supra, at 43-44,
n. 43; Brief for American Society for Adolescent Psychiatry et al. as
Amici Curiae (reviewing scientific evidence). Moreover, the very
paternalism that our society shows toward youths and the dependency it
forces upon them mean that society bears a responsibility for the actions
of juveniles that it does not for the actions of adults who are at least
theoretically free to make their own choices: "youth crime . . . is not
exclusively the offender's fault; offenses by the
young represent a failure of family, school, and the social system, which
share responsibility for the development of America's youth." Task Force
7.
|
| [74] |
To be sure, the development of cognitive and reasoning abilities and
of empathy, the acquisition of experience upon which these abilities
operate and upon which the capacity to make sound value judgments depends,
and in general the process of maturation into a self-directed individual
fully responsible for his or her actions, occur by degrees. See, e. g., G.
Manaster, Adolescent Development and the Life Tasks (1977). But the
factors discussed above indicate that 18 is the dividing line that society
has generally drawn, the point at which it is thought reasonable to assume
that persons have an ability to make, and a duty to bear responsibility
for their, judgments. Insofar as age 18 is a necessarily arbitrary social
choice as a point at which to acknowledge a person's maturity and
responsibility, given the different developmental rates of individuals, it
is in fact "a conservative estimate of the dividing line between
adolescence and adulthood. Many of the psychological and emotional changes
that an adolescent experiences in maturing do not actually occur until the
early 20s." Brief for American Society for Adolescent Psychiatry et al. as
Amici Curiae 4 (citing social scientific studies).
|
| [75] |
B
|
| [76] |
There may be exceptional individuals who mature more quickly than
their peers, and who might be considered fully responsible for their
actions prior to the age of 18, despite their lack of the experience upon
which judgment depends.*fn11 In my view, however, it is not sufficient
to accommodate the facts
about juveniles that an individual youth's culpability may be taken into
account in the decision to transfer him or her from the juvenile to the
adult court system for trial, or that a capital sentencing jury is
instructed to consider youth and other mitigating factors. I believe that
the Eighth Amendment requires that a person who lacks that full degree of
responsibility for his or her actions associated with adulthood not be
sentenced to death. Hence it is constitutionally inadequate that a
juvenile offender's level of responsibility be taken into account only
along with a host of other factors that the court or jury may decide
outweigh that want of responsibility.
|
| [77] |
Immaturity that constitutionally should operate as a bar to a
disproportionate death sentence does not guarantee that a minor will not
be transferred for trial to the adult court system. Rather, the most
important considerations in the decision to transfer a juvenile offender
are the seriousness of the offense, the extent of prior delinquency, and
the response to prior treatment within the juvenile justice system.
National Institute for Juvenile Justice and Delinquency, United States
Dept. of Justice, Major Issues in Juvenile Justice Information and
Training, Youth in Adult Courts: Between Two Worlds 211 (1982).
Psychological, intellectual, and other personal characteristics of
juvenile offenders receive little attention at the transfer stage, and
cannot account for differences between those transferred and those who
remain in the juvenile court system. See Solway, Hays, Schreiner, &
Cansler, Clinical Study of Youths Petitioned for Certification as Adults,
46 Psychological Rep. 1067 (1980). Nor is an adolescent's lack of full
culpability isolated at the sentencing stage as a factor that
determinatively bars a death sentence. A jury is free to weigh a juvenile
offender's youth and lack of full responsibility against the heinousness
of the crime and other aggravating factors -- and, finding the aggravating
factors weightier, to sentence even the most immature of 16- or 17-year
olds to be killed. By no stretch of the imagination, then,
are the transfer and sentencing decisions designed to isolate those
juvenile offenders who are exceptionally mature and responsible, and who
thus stand out from their peers as a class.
|
| [78] |
It is thus unsurprising that individualized consideration at transfer
and sentencing has not in fact ensured that juvenile offenders lacking an
adult's culpability are not sentenced to die. Quite the contrary.
Adolescents on death row appear typically to have a battery of
psychological, emotional, and other problems going to their likely
capacity for judgment and level of blameworthiness. A recent diagnostic
evaluation of all 14 juveniles on death rows in four States is
instructive. Lewis et al., Neuropsychiatric, Psychoeducational, and Family
Characteristics of 14 Juveniles Condemned to Death in the United States,
145 Am. J. Psychiatry 584 (1988). Seven of the adolescents sentenced to
die were psychotic when evaluated, or had been so diagnosed in earlier
childhood; four others had histories consistent with diagnoses of severe
mood disorders; and the remaining three experienced periodic paranoid
episodes, during which they would assault perceived enemies. Id., at 585,
and Table 3. Eight had suffered severe head injuries during childhood,
id., at 585, and Table 1, and nine suffered from neurological
abnormalities, id., at 585, and Table 2. Psychoeducational testing showed
that only 2 of these death-row inmates had IQ scores above 90 (that is, in
the normal range) -- and both individuals suffered from psychiatric
disorders -- while 10 offenders showed impaired abstract reasoning on at
least some tests. Id., at 585-586, and Tables 3 and 4. All but two of the
adolescents had been physically abused, and five sexually abused. Id., at
586-587, and Table 5. Within the families of these children, violence,
alcoholism, drug abuse, and psychiatric disorders were commonplace. Id.,
at 587, and Table 5.
|
| [79] |
The cases under consideration today certainly do not suggest that
individualized consideration at transfer and sentencing ensure
that only exceptionally mature juveniles, as blameworthy for their crimes
as an adult, are sentenced to death. Transferring jurisdiction over Kevin
Stanford to Circuit Court, the Juvenile Division of the Jefferson,
Kentucky, District Court nevertheless found that Stanford, who was 17 at
the time of his crime,
|
| [80] |
"has a low internalization of the values and morals of society and
lacks social skills. That he does possess an institutionalized personality
and has, in effect, because of his chaotic family life and lack of
treatment, become socialized in delinquent behavior. That he is
emotionally immature and could be amenable to treatment if properly done
on a long term basis of psychotherapeutic intervention and reality based
therapy for socialization and drug therapy in a residential facility."
App. in No. 87-5765, p. 9.
|
| [81] |
At the penalty phase of Stanford's trial, witnesses testified that
Stanford, who lived with various relatives, had used drugs from the age of
about 13, and that his drug use had caused changes in his personality and
behavior. 10 Record in No. 87-5765, pp. 1383-1392, 1432. Stanford had been
placed at times in juvenile treatment facilities, and a witness who had
assessed him upon his admission to an employment skills project found that
he lacked age-appropriate social interaction skills; had a history of drug
abuse; and wanted for family support or supervision. Id., at 1408; see
also id., at 1440-1442.
|
| [82] |
Heath Wilkins was 16 when he committed the crime for which Missouri
intends to kill him. The juvenile court, in ordering him transferred for
trial to adult court, focused upon the viciousness of Wilkins' crime, the
juvenile system's inability to rehabilitate him in the 17 months of
juvenile confinement available, and the need to protect the public, though
it also mentioned that Wilkins was, in its view, "an experienced person,
and mature in his appearance and habits." App. in No. 87-6026, p. 5. The
Circuit Court found Wilkins competent
to stand trial.*fn12 Record in No. 87-6026, p. 42. Wilkins
then waived counsel, with the avowed intention of pleading guilty and
seeking the death penalty, id., at 42, 55, and the Circuit Court accepted
the waiver, id., at 84, and later Wilkins' guilty plea, id., at 144-145.
Wilkins was not represented by counsel at sentencing. See id., at 188-190.
Presenting no mitigating evidence, he told the court he would prefer the
death penalty to life in prison, id., at 186-187 -- "one I fear, the other
one I don't," id., at 295 -- and after hearing evidence from the State,
the Court sentenced Wilkins to die. Wilkins took no steps to appeal and
objected to an amicus ' efforts on his behalf. The Missouri Supreme Court,
however, ordered an evaluation to determine whether Wilkins was competent
to waive his right to appellate counsel. Concluding that Wilkins was
incompetent to waive his rights,*fn13 the state-appointed forensic psychiatrist
found that Wilkins
" suffers from a mental disorder" that affects his "reasoning and impairs
his behavior." App. in No. 87-6026, p. 74. It would be incredible to
suppose, given this psychiatrist's conclusion and his summary of Wilkins'
past, set out in the margin,*fn14 that Missouri's transfer and sentencing
schemes had
operated to identify in Wilkins a 16-year old mature and culpable beyond
his years.
|
| [83] |
C
|
| [84] |
Juveniles very generally lack that degree of blameworthiness that is,
in my view, a constitutional prerequisite for the imposition
of capital punishment under our precedents concerning the Eighth Amendment
proportionality principle. The individualized consideration of an
offender's youth and culpability at the transfer stage and at sentencing
has not operated to ensure that the only offenders under 18 singled out
for the ultimate penalty are exceptional individuals whose level of
responsibility is more developed than that of their peers. In that
circumstance, I believe that the same categorical assumption that
juveniles as a class are insufficiently mature to be regarded as fully
responsible that we make in so many other areas is appropriately made in
determining whether minors may be subjected to the death penalty. As we
noted in Thompson, 487 U.S., at 825-826, n. 23, it
would be ironic if the assumptions we so readily make about minors as a
class were suddenly unavailable in conducting proportionality analysis. I
would hold that the Eighth Amendment prohibits the execution of any person
for a crime committed below the age of 18.
|
| [85] |
IV
|
| [86] |
Under a second strand of Eighth Amendment inquiry into whether a
particular sentence is excessive and hence unconstitutional, we ask
whether the sentence makes a measurable contribution to acceptable goals
of punishment. Thompson, supra, at 833; Enmund v. Florida, 458
U.S., at 798; Coker v. Georgia, 433 U.S., at 592; Gregg v. Georgia, 428 U.S., at 173.
The two "principal social purposes" of capital punishment are said to be
"retribution and the deterrence of capital crimes by prospective
offenders." Gregg, supra, at 183; see Enmund, supra, at 798. Unless the
death penalty applied to persons for offenses committed under 18
measurably contributes to one of these goals, the Eighth Amendment
prohibits it. See ibid.
|
| [87] |
"Retribution as a justification for executing [offenders] very much
depends on the degree of [their] culpability." Id., at 800. I have
explained in Part III, supra, why I believe juveniles lack the culpability
that makes a crime so extreme that
it may warrant, according to this Court's cases, the death penalty; and
why we should treat juveniles as a class as exempt from the ultimate
penalty. These same considerations persuade me that executing juveniles
"does not measurably contribute to the retributive end of ensuring that
the criminal gets his just deserts." Id., at 801. See Thompson, supra, at
836-837. A punishment that fails the Eighth Amendment test of
proportionality because disproportionate to the offender's blameworthiness
by definition is not justly deserved.
|
| [88] |
Nor does the execution of juvenile offenders measurably contribute to
the goal of deterrence. Excluding juveniles from the class of persons
eligible to receive the death penalty will have little effect on any
deterrent value capital punishment may have for potential offenders who
are over 18: these adult offenders may of course remain eligible for a
death sentence. The potential deterrent effect of juvenile executions on
adolescent offenders is also insignificant. The deterrent value of capital
punishment rests "on the assumption that we are rational beings who always
think before we act, and then base our actions on a careful calculation of
the gains and losses involved." Gardiner, The Purposes of Criminal
Punishment, 21 Mod. L. Rev. 117, 122 (1958). As the plurality noted in
Thompson, supra, at 837, "the likelihood that the teenage offender has
made the kind of cost-benefit analysis that attaches any weight to the
possibility of execution is so remote as to be virtually nonexistent."
First, juveniles "have less capacity . . . to think in long-range terms
than adults," Task Force 7, and their careful weighing of a distant,
uncertain, and indeed highly unlikely consequence prior to action is most
improbable.*fn15 In addition, juveniles have little fear
of death, because they have "a profound conviction of their own
omnipotence and immortality." Miller, Adolescent Suicide: Etiology and
Treatment, in 9 Adolescent Psychiatry 327, 329 (S. Feinstein, J. Looney,
A. Schwartzberg, & A. Sorosky eds. 1981). See also, e. g., Gordon, The
Tattered Cloak of Immortality, in Adolescence and Death 16, 27 (C. Corr
& J. McNeil eds. 1986) (noting prevalence of adolescent risk taking);
Brief for American Society for Adolescent Psychiatry et al. as Amici
Curiae 5-6 (citing research). Because imposition of the death penalty on
persons for offenses committed under the age of 18 makes no measurable
contribution to the goals of either retribution or deterrence, it is
"nothing more than the purposeless and needless imposition of pain and
suffering," Coker, supra, at 592, and is thus excessive and
unconstitutional.
|
| [89] |
V
|
| [90] |
There are strong indications that the execution of juvenile offenders
violates contemporary standards of decency: a majority of States decline
to permit juveniles to be sentenced to death; imposition of the sentence
upon minors is very unusual even in those States that permit it; and
respected organizations with expertise in relevant areas regard the
execution of juveniles as unacceptable, as does international opinion.
These indicators serve to confirm in my view my conclusion that the Eighth
Amendment prohibits the execution of persons for offenses they committed
while below the age of 18, because the death penalty is disproportionate
when applied to such young offenders and fails measurably to serve the
goals of capital punishment. I dissent.
|
| |
|
| |
General Footnotes
|
| |
|
| [91] |
*fn* Together with No. 87-6026, Wilkins v.
Missouri, on certiorari to the Supreme Court of Missouri.
|
| |
|
| |
Counsel Footnotes
|
| |
|
| [92] |
*fn** Briefs of amici curiae urging reversal in
both cases were filed for the American Baptist Churches et al. by Mark
Evan Olive; for the Child Welfare League of America et al. by Randy Hertz
and Martin Guggenheim; and for the West Virginia Council of Churches by
Paul R. Stone. A brief of amici curiae urging affirmance in No. 87-6026
was filed for the State of Kentucky et al. by Frederic J. Cowan, Attorney
General of Kentucky, Elizabeth Ann Myerscough and David A. Smith,
Assistant Attorneys General, Don Siegelman, Attorney General of Alabama,
Robert K. Corbin, Attorney General of Arizona, John Steven Clark, Attorney
General of Arkansas, John J. Kelly, Chief State's Attorney of Connecticut,
Robert A. Butterworth, Attorney General of Florida, Linley E. Pearson,
Attorney General of Indiana, Michael C. Moore, Attorney General of
Mississippi, Michael T. Greely, Attorney General of Montana, Brian McKay,
Attorney General of Nevada, Robert H. Henry, Attorney General of Oklahoma,
LeRoy S. Zimmerman, Attorney General of Pennsylvania, T. Travis Medlock,
Attorney General of South Carolina, Roger A. Tellinghuisen, Attorney
General of South Dakota, Mary Sue Terry, Attorney General of Virginia, and
Joseph B. Meyer, Attorney General of Wyoming. Briefs of amici curiae were
filed in both cases for the American Bar Association by Robert D. Raven
and Andrew J. Shookhoff; for the American Society for Adolescent
Psychiatry et al. by Joseph T. McLaughlin, Jeremy G. Epstein, and Henry
Weisburg; for Amnesty International by Paul L. Hoffman, Joan W. Howarth,
Mary E. McClymont, David Weissbrodt, and John E. Osborn; for Defense for
Children International-USA by Anna Mamalakis Pappas; for the International
Human Rights Law Group by Robert H. Kapp; and for the National Legal Aid
and Defender Association et al. by Charles Ogletree and John H. Blume.
Susan Apel and Michael Mello filed a brief for the Capital Collateral
Representative for the State of Florida as amicus curiae in No.
87-5765.
|
| |
|
| |
Opinion Footnotes
|
| |
|
| [93] |
*fn1 We emphasize that it is American
conceptions of decency that are dispositive, rejecting the contention of
petitioners and their various amici (accepted by the dissent, see post, at
389-390) that the sentencing practices of other countries are relevant.
While "the practices of other nations, particularly other democracies, can
be relevant to determining whether a practice uniform among our people is
not merely an historical accident, but rather so 'implicit in the concept
of ordered liberty' that it occupies a place not merely in our mores, but,
text permitting, in our Constitution as well," Thompson v. Oklahoma, 487 U.S. 815, 868-869, n. 4 (1988) (SCALIA, J.,
dissenting), quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937) (Cardozo, J.), they cannot serve to establish
the first Eighth Amendment prerequisite, that the practice is accepted
among our people.
|
| [94] |
*fn2 The following States preclude capital
punishment of offenders under 18: California (Cal. Penal Code Ann. § 190.5
(West 1988)); Colorado (Colo. Rev. Stat. § 16-11-103(1)(a) (1986));
Connecticut (Conn. Gen. Stat. § 53a-46a(g)(1) (1989)); Illinois (Ill. Rev.
Stat., ch. 38, para. 9-1(b) (1987)); Maryland (Md. Ann. Code, Art. 27, §
412(f) (Supp. 1988)); Nebraska (Neb. Rev. Stat. § 28-105.01 (1985)); New
Jersey (N. J. Stat. Ann. § 2A:4A-22(a) (West 1987) and 2C:11-3(g) (West
Supp. 1988)); New Hampshire (N. H. Rev. Stat. Ann. § 630:5(XIII) (Supp.
1988)); New Mexico (N. M. Stat. Ann. §§ 28-6-1(A), 31-18-14(A) (1987));
Ohio (Ohio Rev. Code Ann. § 2929.02(A) (1987)); Oregon (Ore. Rev. Stat. §§
161.620 and 419.476(1) (1987)); Tennessee (Tenn. Code Ann. §§ 37-1-102(3),
37-1-102(4), 37-1-103, 37-1-134(a)(1) (1984 and Supp. 1988)). Three more
States preclude the death penalty for offenders under 17: Georgia (Ga.
Code Ann. § 17-9-3 (1982)); North Carolina (N. C. Gen. Stat. § 14-17
(Supp. 1988)); Texas (Tex. Penal Code Ann. § 8.07(d) (Supp. 1989)).
The dissent takes issue with our failure to include, among those States
evidencing a consensus against executing 16- and 17-year-old offenders,
the District of Columbia and the 14 States that do not authorize capital
punishment. Post, at 384-385. It seems to us, however, that while the
number of those jurisdictions bears upon the question whether there is a
consensus against capital punishment altogether, it is quite irrelevant to
the specific inquiry in this case: whether there is a settled consensus in
favor of punishing offenders under 18 differently from those over 18
insofar as capital punishment is concerned. The dissent's position is
rather like discerning a national consensus that wagering on cockfights is
inhumane by counting within that consensus those States that bar all
wagering. The issue in the present case is not whether capital punishment
is thought to be desirable but whether persons under 18 are thought to be
specially exempt from it. With respect to that inquiry, it is no more
logical to say that the capital-punishment laws of those States which
prohibit capital punishment (and thus do not address age) support the
dissent's position, than it would be to say that the
age-of-adult-criminal-responsibility laws of those same States (which do
not address capital punishment) support our position.
|
| [95] |
*fn3 The dissent again works its statistical
magic by refusing to count among the States that authorize capital
punishment of 16- and 17-year-old offenders those 19 States that set no
minimum age in their death penalty statute, and specifically permit 16-
and 17-year-olds to be sentenced as adults. Post, at 385. We think that
describing this position is adequate response.
|
| [96] |
*fn4 See 10 U. S. C. § 906a (1982 ed., Supp. V)
(peacetime espionage); § 918 (murder by persons subject to Uniform Code of
Military Justice); 18 U. S. C. §§ 32, 33, and 34 (1982 ed. and Supp. V)
(destruction of aircraft, motor vehicles, or related facilities resulting
in death); § 115(b)(3) (1982 ed., Supp. V) (retaliatory murder of member
of immediate family of law enforcement officials) (by cross reference to §
1111 (1982 ed. and Supp. V)); § 351 (1982 ed. and Supp. V) (murder of
Member of Congress, high-ranking executive official, or Supreme Court
Justice) (by cross reference to § 1111); § 794 (1982 ed. and Supp. V)
(espionage); § 844(f) (1982 ed., Supp. V) (destruction of Government
property resulting in death); § 1111 (first-degree murder within federal
jurisdiction); § 1716 (1982 ed. and Supp. V) (mailing of injurious
articles resulting in death); § 1751 (assassination or kidnaping resulting
in death of President or Vice President); § 1992 (willful wrecking of
train resulting in death); § 2113 (1982 ed. and Supp. V) (bank
robbery-related murder or kidnaping); § 2381 (treason); 49 U. S. C. App.
§§ 1472 and 1473 (1982 ed. and Supp. V) (death resulting from aircraft
hijacking).
|
| [97] |
*fn5 See Ala. Code § 13A-5-51(7) (1982); Ariz.
Rev. Stat. Ann. § 13-703(G)(5) (Supp. 1988); Ark. Code Ann. § 5-4-605(4)
(1987); Cal. Penal Code Ann. § 190.3(i) (West 1988); Colo. Rev. Stat. §
16-11-103(5)(a) (1986); Conn. Gen. Stat. § 53a-46a(g)(1) (1989); Fla.
Stat. § 921.141(6)(g) (1987); Ind. Code § 35-50-2-9(c)(7) (1988); Ky. Rev.
Stat. Ann. § 532.025(2)(b)(8) (Baldwin 1988); La. Code Crim. Proc. Ann.,
Art. 905.5(f) (West 1984); Md. Ann. Code, Art. 27, § 413(g)(5) (1988);
Miss. Code Ann. § 99-19-101(6)(g) (Supp. 1988); Mo. Rev. Stat. §
565.032(3)(7) (1986); Mont. Code Ann. § 46-18-304(7) (1987); Neb. Rev.
Stat. § 29-2523(2)(d) (1985); Nev. Rev. Stat. § 200.035(6) (1987); N. H.
Rev. Stat. Ann. § 630:5(II)(b)(5) (1986); N. J. Stat. Ann. §
2C:11-3(c)(5)(c) (West Supp. 1988); N. M. Stat. Ann. § 31-20A-6(I) (1987);
N. C. Gen. Stat. § 15A-2000(f)(7) (1988); Ohio Rev. Code Ann. §
2929.04(B)(4) (1987); Ore. Rev. Stat. § 163.150(2)(b)(B) (1987); 42 Pa.
Cons. Stat. § 9711(e)(4) (1982); S. C. Code § 16-3-20(C)(b)(9) (Supp.
1988); Tenn. Code Ann. § 39-2-203(j)(7) (1982); Utah Code Ann. §
76-3-307(2)(e) (Supp. 1988); Va. Code § 19.2-264.4(B)(v) (1983); Wash.
Rev. Code § 10.95.070(7) (Supp. 1989); Wyo. Stat. § 6-2-102(j)(vii)
(1988).
|
| [98] |
*fn6 The Kentucky statute under which Stanford
was certified to be tried as an adult provides in relevant part:
"(3) If the court determines that probable cause exists [to believe
that a person 16 years old or older committed a felony or that a person
under 16 years of age committed a Class A felony or a capital offense], it
shall then determine if it is in the best interest of the child and the
community to order such a transfer based upon the seriousness of the
alleged offense; whether the offense was against person or property, with
greater weight being given to offenses against persons; the maturity of
the child as determined by his environment; the child's prior record; and
the prospects for adequate protection of the public and the likelihood of
reasonable rehabilitation of the child by the use of procedures, services,
and facilities currently available to the juvenile justice system." Ky.
Rev. Stat. Ann. § 208.170 (Michie 1982) (repealed effective July 15,
1984). The Missouri statute under which Wilkins was certified provides
that in determining whether to transfer a juvenile the court must
consider: "(1) The seriousness of the offense alleged and whether the
protection of the community requires transfer to the court of general
jurisdiction; "(2) Whether the offense alleged involved viciousness, force
and violence; "(3) Whether the offense alleged was against persons or
property with greater weight being given to the offense against persons,
especially if personal injury resulted; "(4) Whether the offense alleged
is a part of a repetitive pattern of offenses which indicates that the
child may be beyond rehabilitation under the juvenile code; "(5) The
record and history of the child, including experience with the juvenile
justice system, other courts, supervision, commitments to juvenile
institutions and other placements; "(6) The sophistication and maturity of
the child as determined by consideration of his home and environmental
situation, emotional condition and pattern of living; "(7) The program and
facilities available to the juvenile court in considering disposition; and
"(8) Whether or not the child can benefit from the treatment or
rehabilitative programs available to the juvenile court." Mo. Rev. Stat. §
211.071(6) (1986).
|
| [99] |
*fn7 The dissent believes that individualized
consideration is no solution, because "the Eighth Amendment requires that
a person who lacks that full degree of responsibility for his or her
actions associated with adulthood not be sentenced to death," and this
absolute cannot be assured if "a juvenile offender's level of
responsibility [is] taken into account only along with a host of other
factors that the court or jury may decide outweigh that want of
responsibility." Post, at 397. But it is equally true that individualized
consideration will not absolutely assure immunity from the death penalty
to the nonjuvenile who happens to be immature. If individualized
consideration is constitutionally inadequate, then, the only logical
conclusion is that everyone is exempt from the death
penalty.
|
| |
|
| |
Dissent Footnotes
|
| |
|
| [100] |
*fn1 See Thompson v. Oklahoma, 487
U.S. 815, 826, and n. 25 (1988), listing 14 States. The 15th
State to have rejected capital punishment altogether is Vermont. Vermont
repealed a statute that had allowed capital punishment for some murders.
See Vt. Stat. Ann., Tit. 13, § 2303 (1974 and Supp. 1988). The State now
provides for the death penalty only for kidnaping with intent to extort
money. § 2403. Insofar as it permits a sentence of death, § 2403 was
rendered unconstitutional by our decision in Furman v. Georgia,
408 U.S. 238 (1972), because Vermont's sentencing
scheme does not guide jury discretion, see Vt. Stat. Ann., Tit. 13, §§
7101-7107 (1974). Vermont's decision not to amend its only law allowing
the death penalty in light of Furman and its progeny, in combination with
its repeal of its statute permitting capital punishment for murder, leads
to the conclusion that the State rejects capital punishment.
In addition, South Dakota, though it statutorily provides for a death
penalty, has sentenced no one to death since Furman, arguably making a
28th State that has abandoned the death penalty.
|
| [101] |
*fn2 One person currently on death row for
juvenile crimes was sentenced in Maryland, which has since set 18 as the
minimum age for its death penalty.
|
| [102] |
*fn3 Capital sentences for juveniles would
presumably be more unusual still were capital juries drawn from a cross
section of our society, rather than excluding many who oppose capital
punishment, see Lockhart v. McCree, 476 U.S. 162
(1986) -- a fact that renders capital jury sentences a distinctly weighted
measure of contemporary standards.
|
| [103] |
*fn4 Briefs for American Bar Association; Child
Welfare League of America, National Parents and Teachers Association,
National Council on Crime and Delinquency, Children's Defense Fund,
National Association of Social Workers, National Black Child Development
Institute, National Network of Runaway and Youth Services, National Youth
Advocate Program, and American Youth Work Center; American Society for
Adolescent Psychiatry and American Orthopsychiatric Association; Defense
for Children International-USA; National Legal Aid and Defender
Association, and National Association of Criminal Defense Lawyers; Office
of Capital Collateral Representative for the State of Florida; and
International Human Rights Law Group, as Amici Curiae. See also Briefs for
American Baptist Churches, American Friends Service Committee, American
Jewish Committee, American Jewish Congress, Christian Church (Disciples of
Christ), Mennonite Central Committee, General Conference Mennonite Church,
National Council of Churches, General Assembly of the Presbyterian Church,
Southern Christian Leadership Conference, Union of American Hebrew
Congregations, United Church of Christ Commission for Racial Justice,
United Methodist Church General Board of Church and Society, and United
States Catholic Conference; West Virginia Council of Churches; and Amnesty
International as Amici Curiae.
|
| [104] |
*fn5 American Bar Association, Summary of
Action of the House of Delegates 17 (1983 Annual Meeting).
|
| [105] |
*fn6 National Council of Juvenile and Family
Court Judges, Juvenile and Family Court Newsletter, Vol. 19, No. 1, p. 4
(Oct. 1988).
|
| [106] |
*fn7 American Law Institute, Model Penal Code §
210.6(1)(d) (Proposed Official Draft 1962); American Law Institute, Model
Penal Code and Commentaries § 210.6, Commentary, p. 133 (1980) ("Civilized
societies will not tolerate the spectacle of execution of
children").
|
| [107] |
*fn8 National Commission on Reform of Federal
Criminal Laws, Final Report of the Proposed New Federal Criminal Code §
3603 (1971).
|
| [108] |
*fn9 Brief for Amnesty International as Amicus
Curiae in Thompson v. Oklahoma, O. T. 1987, No. 86-6169, p.
6.
|
| [109] |
*fn10 Article 6(5) of the International
Covenant on Civil and Political Rights, Annex to G. A. Res. 2200, 21 U. N.
GAOR Res. Supp. (No. 16) 53, U. N. Doc. A/6316 (1966) (signed but not
ratified by the United States), reprinted in 6 International Legal
Material 368, 370 (1967); Article 4(5) of the American Convention on Human
Rights, O. A. S. Official Records, OEA/Ser. K/XVI/1.1, Doc. 65, Rev. 1,
Corr. 2 (1970) (same), reprinted in 9 International Legal Material 673,
676 (1970); Article 68 of the Geneva Convention Relative to the Protection
of Civilian Persons in Time of War, August 12, 1949, 6 U. S. T. 3516, T.
I. A. S. No. 3365, (ratified by the United States). See also Resolutions
and Decisions of the United Nations Economic and Social Council, Res.
1984/50, U. N. ESCOR Supp. (No. 1), p. 33, U. N. Doc. E/1984/84 (1984)
(adopting "safeguards guaranteeing protection of the rights of those
facing the death penalty," including the safeguard that "persons below 18
years of age at the time of the commission of the crime shall not be
sentenced to death"), endorsed by the United Nations General Assembly, U.
N. GAOR Res. 39/118, U. N. Doc. A/39/51, p. 211, paras. 2, 5 (1985), and
adopted by the Seventh United Nations Congress on the Prevention of Crime
and the Treatment of Offenders, p. 83, U. N. Doc. A/Conf. 121/22, U. N.
Sales No. E.86.IV.1 (1986).
|
| [110] |
*fn11 Delinquent juveniles are unlikely to be
among these few. Instead, they will typically be among those persons for
whom society's presumption of a capacity for mature judgment at 18 is much
too generous. See, e. g., Scharf, Law and the Child's Evolving Legal
Conscience, in 1 Advances in Law and Child Development 1, 16 (R. Sprague
ed. 1982) (discussing study of delinquents aged 15 to 17, suggesting that
the group's mean moral maturity level was below that of average
middle-class 10- to 12-year-olds).
|
| [111] |
*fn12 Two psychological reports were prepared
concerning Wilkins when the issue of his competency to stand trial arose.
Neither suggests that Wilkins was exceptionally mature for his age. One
found his intellectual functioning "within the average range," App. in No.
87-6026, p. 10, and his "higher order processes," such as reasoning and
judgment, to be "within the approximate normal range," id., at 11. The
other concluded:
"[Wilkins'] capacity to manage and control affect is tenuous and
inconsistent, leaving him a subject to impulsive actions as well as
arbitrary and capricious thinking which is prone to skirt over details,
and considerations for logical systematic thought. He is intolerant of
intense affects such as anxiety, depression, or anger, in that such
feelings are overwhelming, interfere with his ability to think clearly,
and gives rise to impulsive action. He is vulnerable to massive infusions
of intense rage which leads to spasms of destructive action. His rage
co-mingles with a profound depressive experience generated by an
excruciating sense of lonely alienation whereby he experiences both
himself and other people as being lifeless and empty. . . . "He barely
experiences ties to others or empathetic attunement . . . ." Id., at
22.
|
| [112] |
*fn13 Wilkins was diagnosed as being of a
"Conduct Disorder, Undersocialized-Aggressive Type," with a borderline
personality disorder that left him with "difficulty in establishing a
pattern of predictable response to stressful situations vacillating
between aggression towards others or self-destructive activity." Id., at
67-68. He had been "exhibiting bizarre behavior, paranoid ideation, and
idiosyncratic thinking" since 1982. Id., at 68.
|
| [113] |
*fn14 The state-appointed psychiatrist
summarized Wilkins' past in his report:
"Mr. Wilkins . . . was raised in a rather poor socioeconomic
environment [and] reportedly had extremely chaotic upbringing during his
childhood. He was physically abused by his mother, sometimes the beatings
would last for two hours. . . . As a child, he started robbing houses for
knives and money and loved to set fires. Mr. Wilkins' mother worked at
night and slept during the day, thus the children were left alone at night
by themselves. He claims that he was started on drugs by his uncle [at age
six; see id., at 67]. Apparently he used to shoot BB guns at passing cars.
Mr. Wilkins indicated that his mother's boyfriend had a quick temper and
that he hated him. He also started disliking his mother, not only because
she punished [him], but also because she stood up for her boyfriend who
was unkind towards [him]. He then decided to poison his mother and
boyfriend by placing rat poison in Tylenol capsules. They were informed by
his brother about the situation. They secretly emptied the capsules and
made him eat them. He was afraid of death and attempted vomiting by
placing [his] fingers in his throat. Then he ended up getting a beating
from his mother and boyfriend. At the age of ten, Mr. Wilkins was
evaluated at Tri-County Mental Health Center and Western Missouri Mental
Health Center. He stayed there for a period of six months. He was then
sent to Butterfield Youth's Home and then to East Range, a residential
facility for boys. He started using drugs quite heavily. . . . He also
started drinking hard liquor. . . . "At Butterfield, he was very angry at
the teachers because they considered him to be 'dumb.' He showed rather
strange behavior there. When he became depressed he would dance with a net
over his head. On another occasion he cut his wrist and claimed to have
had frequent thoughts of suicide. Prior to going to Butterfield, he had
jumped off a bridge but the car swerved before he was hit. At Butterfield,
he attempted to overdose with alcohol and drugs and another time with
antipsychotic medication, Mellaril. Mr. Wilkins was placed on Mellaril
because he was 'too active.' He stayed at . . . Butterfield . . . for
three and one half years between the ages of 10 through 13 1/2. After
that, he was transferred to Crittenton Center since it was closer to his
mother's residence. He stayed there only for four or five months and was
then kicked out. The court gave him permission to go home on probation. At
this time his mother had started seeing another boyfriend and Mr. Wilkins
apparently liked him. He continued the usage of alcohol and drugs while at
school, continued to break into houses stealing money, jewelry, and
knives, and generally stole money to spend at the arcade. On one occasion
he ran away to Southern California. He was introduced to amphetamines
there and spent all his money. . . . After his return [home, he] was
charged with a stolen knife and was sent to [a] Detention Center. . . . At
age 15, he was sent to the Northwest Regional Youth Services in Kansas
City. There, an attempt at prescribing Thorazine (major tranquilizer) was
made. After this, Mr. Wilkins was placed in a foster home. He ran away
from the foster home . . . . Beginning in May of 1985 he lived on the
streets . . . . . . . . "Records from Butterfield . . . indicated that Mr.
Wilkins' natural father was committed to a mental institution in Arkansas,
and there was considerable amount of physical abuse that existed in the
family. . . . In the educational testing, he gave rather unusual
responses. For example, when asked the reasons why we need policemen, he
replied, 'To get rid of people like me.' He also revealed plans to blow up
a large building in Kansas City [and] made bizarre derogatory sexual
comments towards women prior to visits with his mother. He had episodes of
hyperventilation and passed out by fainting or chest squeezing. . . . On
one occasion in September of 1981, he put gasoline into a toilet and set
fire to it, causing an explosion. Mr. Wilkins' brother was diagnosed to be
suffering from schizophrenia when he was admitted along with Mr. Wilkins
in 1982 at Crittenton Center. Mr. Wilkins was often noticed to be
fantasizing about outer space and supernatural powers. In the fall of
1982, [the Crittenton psychiatrist] recommended placement on Mellaril
because of a 'disoriented thinking pattern and high anxiety.' In 1983, his
condition started deteriorating. . . . His final diagnoses in November of
1983 when he was discharged from Crittenton were Borderline Personality
and Passive-Aggressive Personality. Psychological testing at Crittenton
indicated isolated episodes of paranoid functioning." Id., at
57-61.
|
| [114] |
*fn15 See, e. g., Kastenbaum, Time and Death in
Adolescence, in The Meaning of Death 99, 104 (H. Feifel ed. 1959). Among
the conclusions Kastenbaum drew from his study were that "the adolescent
lives in an intense present; 'now' is so real to him that both past and
future seem pallid by comparison. Everything that is important and
valuable in life lies either in the immediate life situation or in the
rather close future." Ibid.
|