| [1] |
SUPREME COURT OF THE UNITED STATES
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| [2] |
No. 86-6169
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| [3] |
1988.SCT.43034 <http://www.versuslaw.com>; 487 U.S. 815, 108
S. Ct. 2687, 101 L. Ed. 2d 702, 56 U.S.L.W. 4892
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| [4] |
decided: June 29, 1988.
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| [5] |
THOMPSON
v.
OKLAHOMA
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CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF OKLAHOMA.
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Harry F. Tepker, Jr., by appointment of the Court, 480 U.S.
929, argued the cause for petitioner. With him on the briefs
was Victor L. Streib.
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| [8] |
David W. Lee argued the cause for respondent. With him on the brief
were Robert H. Henry, Attorney General of Oklahoma, and William H. Luker,
Susan Stewart Dickerson, Sandra D. Howard, and M. Caroline Emerson,
Assistant Attorneys General.*fn*
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| [9] |
Stevens, J., announced the judgment of the Court and delivered an
opinion in which Brennan, Marshall, and Blackmun, JJ., joined. O'Connor,
J., filed an opinion concurring in the judgment, post, p. 848. Scalia, J.,
filed a dissenting opinion, in which Rehnquist, C. J., and White, J.,
joined, post, p. 859. Kennedy. J., took no part in the consideration or
decision of the case.
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| [10] |
Author: Stevens
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JUSTICE STEVENS announced the judgment of the Court and delivered an
opinion in which JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN
join.
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| [12] |
Petitioner was convicted of first-degree murder and sentenced to
death. The principal question presented is whether the execution of that
sentence would violate the constitutional prohibition against the
infliction of "cruel and unusual punishments"*fn1 because
petitioner was only 15 years old at the time of his offense.
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| [13] |
I
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| [14] |
Because there is no claim that the punishment would be excessive if
the crime had been committed by an adult, only a brief statement of facts
is necessary. In concert with three older persons, petitioner actively
participated in the brutal murder of his former brother-in-law in the
early morning hours of January 23, 1983. The evidence disclosed that the
victim had been shot twice, and that his throat, chest, and abdomen had
been cut. He also had multiple bruises and a broken leg. His body had been
chained to a concrete block and thrown into a river where it remained for
almost four weeks. Each of the four participants was tried separately and
each was sentenced to death.
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| [15] |
Because petitioner was a "child" as a matter of Oklahoma law,*fn2 the District Attorney filed a statutory
petition, see Okla. Stat., Tit. 10, § 1112(b) (1981), seeking an order
finding "that said child is competent and had the mental capacity to know
and appreciate the wrongfulness of his [conduct]." App. 4. After a
hearing, the trial court concluded "that there are virtually no reasonable
prospects for rehabilitation of William Wayne Thompson within the juvenile
system and that
William Wayne Thompson should be held accountable for his acts as if he
were an adult and should be certified to stand trial as an adult." Id., at
8 (emphasis in original).
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| [16] |
At the guilt phase of petitioner's trial, the prosecutor introduced
three color photographs showing the condition of the victim's body when it
was removed from the river. Although the Court of Criminal Appeals held
that the use of two of those photographs was error,*fn3 it concluded that the error was harmless
because the evidence of petitioner's guilt was so convincing. However, the
prosecutor had also used the photographs in his closing argument during
the penalty phase. The Court of Criminal Appeals did not consider whether
this display was proper.
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| [17] |
At the penalty phase of the trial, the prosecutor asked the jury to
find two aggravating circumstances: that the murder was especially
heinous, atrocious, or cruel; and that there was a probability that the
defendant would commit criminal acts of violence that would constitute a
continuing threat to society. The jury found the first, but not the
second, and fixed petitioner's punishment at death.
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| [18] |
The Court of Criminal Appeals affirmed the conviction and sentence,
724 P. 2d 780 (1986), citing its earlier opinion in Eddings v. State, 616
P. 2d 1159 (1980), rev'd on other grounds, 455 U.S. 104 (1982), for the proposition that "once a minor is certified
to stand trial as an adult, he may also, without violating the
Constitution, be punished as an adult." 724 P. 2d, at 784. We granted
certiorari to consider whether a sentence of death is cruel and unusual
punishment for a crime committed by a 15-year-old child, as well as
whether photographic
evidence that a state court deems erroneously admitted but harmless at the
guilt phase nevertheless violates a capital defendant's constitutional
rights by virtue of its being considered at the penalty phase.
479 U.S. 1084 (1987).
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| [19] |
II
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The authors of the Eighth Amendment drafted a categorical prohibition
against the infliction of cruel and unusual punishments, but they made no
attempt to define the contours of that category. They delegated that task
to future generations of judges who have been guided by the "evolving
standards of decency that mark the progress of a maturing society." Trop
v. Dulles, 356 U.S. 86, 101 (1958) (plurality
opinion) (Warren, C. J.).*fn4 In performing that task the Court
has reviewed the work product of state legislatures and sentencing
juries,*fn5 and has carefully considered the reasons
why a civilized society may accept or reject the death penalty in certain
types of cases. Thus, in confronting the question whether the youth of the
defendant -- more specifically, the fact that he was less than 16 years
old at the time of his offense -- is a sufficient reason for denying the
State the power to sentence him to death, we first review relevant
legislative enactments,*fn6 then refer to jury determinations,*fn7 and finally
explain why these indicators of contemporary standards of decency confirm
our judgment that such a young person is not capable of acting with the
degree of culpability that can justify the ultimate penalty.*fn8
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III
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Justice Powell has repeatedly reminded us of the importance of "the
experience of mankind, as well as the long history of our law, recognizing
that there are differences which must be accommodated in determining the
rights and duties of children as compared with those of adults. Examples
of this distinction abound in our law: in contracts, in torts, in criminal
law and procedure, in criminal sanctions and rehabilitation, and in the
right to vote and to hold office." Goss v. Lopez, 419 U.S. 565, 590-591 (1975) (dissenting opinion).*fn9 Oklahoma recognizes this basic distinction
in a number of its statutes. Thus, a minor is not eligible to vote,*fn10 to sit on a jury,*fn11 to marry without parental consent,*fn12 or to purchase alcohol*fn13 or cigarettes.*fn14 Like all other States, Oklahoma has
developed a juvenile justice system in which most offenders under the age
of 18 are not held criminally responsible. Its statutes do provide,
however, that a 16- or 17-year-old charged with murder and other serious
felonies shall be considered an adult.*fn15 Other than the special certification
procedure that was used to authorize petitioner's trial in this case "as
an adult," apparently there are no Oklahoma statutes, either civil or
criminal, that treat a person under 16 years of age as anything but a
"child."
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The line between childhood and adulthood is drawn in different ways by
various States. There is, however, complete or near unanimity among all 50
States and the District of Columbia*fn16 in treating a person under 16 as a minor
for several important purposes. In no State may a 15-year-old vote or
serve on a jury.*fn17 Further, in all but one State a
15-year-old may not drive without parental consent,*fn18 and in all but four States a 15-year-old
may not marry without parental consent.*fn19 Additionally, in those States that have
legislated on the subject, no one under age 16 may purchase pornographic
materials (50 States),*fn20 and in most States that have some form of
legalized gambling, minors are not permitted to participate without
parental consent (42 States).*fn21 Most relevant, however, is the fact that
all States have enacted legislation designating the maximum age for
juvenile court jurisdiction at no less than 16.*fn22 All of this legislation is consistent with
the experience of mankind, as well as the long history of our law, that
the normal 15-year-old is not prepared to assume the full responsibilities
of an adult.*fn23 Most
state legislatures have not expressly confronted the question of
establishing a minimum age for imposition of the death penalty.*fn24 In 14 States, capital punishment is not
authorized at all,*fn25 and in 19 others capital punishment is
authorized but
no minimum age is expressly stated in the death penalty statute.*fn26 One might argue on the basis of this body
of legislation that there is no chronological age at which the imposition
of the death penalty is unconstitutional and that our current standards of
decency would still tolerate the execution of 10-year-old children.*fn27 We think it self-evident that such an
argument is unacceptable: indeed, no such argument has been advanced in
this case.*fn28 If, therefore, we accept the premise
that some offenders are simply too young to be put to death, it is
reasonable to put this group of statutes to one side because they do not
focus on the question of where the chronological age line should be
drawn.*fn29 When we confine our attention to the 18
States that have expressly established a minimum age in their death
penalty statutes, we find that all of them require that the defendant have
attained at least the age of 16 at the time of the capital offense.*fn30 The
conclusion that it would offend civilized standards of decency to execute
a person who was less than 16 years old at the time of his or her offense
is consistent with the views that have been expressed by respected
professional organizations, by other nations that share our Anglo-American
heritage, and by the leading members of the Western European community.*fn31 Thus, the American Bar Association*fn32 and the American Law Institute*fn33 have formally expressed their opposition
to the death penalty for juveniles. Although the death penalty has not
been entirely abolished in the United Kingdom or New Zealand (it has been
abolished in Australia, except in the State of New South Wales, where it
is available for
treason and piracy), in neither of those countries may a juvenile be
executed. The death penalty has been abolished in West Germany, France,
Portugal, The Netherlands, and all of the Scandinavian countries, and is
available only for exceptional crimes such as treason in Canada, Italy,
Spain, and Switzerland. Juvenile executions are also prohibited in the
Soviet Union.*fn34
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| [24] |
IV
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| [25] |
The second societal factor the Court has examined in determining the
acceptability of capital punishment to the American sensibility is the
behavior of juries. In fact, the infrequent and haphazard handing out of
death sentences by capital juries was a prime factor underlying our
judgment in Furman v. Georgia, 408 U.S. 238 (1972),
that the death penalty, as then administered in unguided fashion, was
unconstitutional.*fn35 While
it is not known precisely how many persons have been executed during the
20th century for crimes committed under the age of 16, a scholar has
recently compiled a table revealing this number to be between 18 and 20.*fn36 All of these occurred during the first
half of the century, with the last such execution taking place apparently
in 1948.*fn37 In the following year this Court observed
that this "whole country has traveled far from the period in which the
death sentence was an automatic and commonplace result of convictions . .
. ." Williams v. New York, 337 U.S. 241, 247 (1949).
The road we have traveled during the past four decades -- in which
thousands of juries have tried murder cases -- leads to the unambiguous
conclusion that the imposition of the death penalty on a 15-year-old
offender is now generally abhorrent to the conscience of the
community.
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| [26] |
Department of Justice statistics indicate that during the years 1982
through 1986 an average of over 16,000 persons were arrested for willful
criminal homicide (murder and nonnegligent manslaughter) each year. Of
that group of 82,094 persons, 1,393 were sentenced to death. Only 5 of
them, including the petitioner in this case, were less than 16 years old at
the time of the offense.*fn38 Statistics of this kind can, of course,
be interpreted in different ways,*fn39 but they do suggest that these five young
offenders have received sentences that are "cruel and unusual in the same
way that being struck by lightning is cruel and unusual." Furman v.
Georgia, 408 U.S., at 309 (Stewart, J.,
concurring).
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V
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"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" on one such as
petitioner who committed a heinous murder when he was only 15 years old.
Enmund v. Florida, 458 U.S. 782, 797 (1982).*fn40 In making that judgment, we first ask
whether the juvenile's culpability should be measured by the same standard
as that of an adult, and then consider whether the application of the
death penalty to this class of offenders "measurably contributes" to the
social purposes that are served by the death penalty. Id., at 798. It
is generally agreed "that punishment should be directly related to the
personal culpability of the criminal defendant." California v. Brown, 479 U.S. 538, 545 (1987) (O'CONNOR, J., concurring).
There is also broad agreement on the proposition that adolescents as a
class are less mature and responsible than adults. We stressed this
difference in explaining the importance of treating the defendant's youth
as a mitigating factor in capital cases:
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"But youth is more than a chronological fact. It is a time and
condition of life when a person may be most susceptible to influence and
to psychological damage. Our history is replete with laws and judicial
recognition that minors, especially in their earlier years, generally are
less mature and responsible than adults. Particularly 'during the
formative years of childhood and adolescence, minors often lack the
experience, perspective, and judgment' expected of adults. Bellotti v.
Baird, 443 U.S. 622, 635 (1979)." Eddings v.
Oklahoma, 455 U.S. 104, 115-116 (1982) (footnotes
omitted).
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To add further emphasis to the special mitigating force of youth,
Justice Powell quoted the following passage from the 1978 Report of the
Twentieth Century Fund Task Force on Sentencing Policy Toward Young
Offenders:
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"'[A]dolescents, particularly in the early and middle teen years, are
more vulnerable, more impulsive, and less self-disciplined than adults.
Crimes committed by youths may be just as harmful to victims as those
committed by older persons, but they deserve less punishment because
adolescents may have less capacity to control their conduct and to think
in long-range terms than adults. Moreover, youth crime as such is not
exclusively the offender's fault; offenses by the young also represent a
failure of family, school, and the social system, which share
responsibility for the development of America's youth.'" 455
U.S., at 115, n. 11. Thus,
the Court has already endorsed the proposition that less culpability
should attach to a crime committed by a juvenile than to a comparable
crime committed by an adult.*fn41 The basis for this conclusion is too
obvious to require extended explanation.*fn42 Inexperience, less education, and less
intelligence make the teenager less able to evaluate the consequences of
his or her conduct while at the same time he or she is much more apt to be
motivated by mere emotion or peer pressure than is an adult. 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.*fn43 "The
death penalty is said to serve two principal social purposes: retribution
and deterrence of capital crimes by prospective offenders." Gregg v.
Georgia, 428 U.S. 153, 183 (1976) (joint opinion of
Stewart, Powell, and STEVENS, JJ.). In Gregg we concluded that as "an
expression of society's moral outrage at particularly offensive conduct,"
retribution was not "inconsistent with our respect for the dignity of
men." Ibid.*fn44 Given the lesser culpability of the
juvenile offender,
the teenager's capacity for growth, and society's fiduciary obligations to
its children, this conclusion is simply inapplicable to the execution of a
15-year-old offender.
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For such a young offender, the deterrence rationale is equally
unacceptable.*fn45 The Department of Justice statistics
indicate that about 98% of the arrests for willful homicide involved
persons who were over 16 at the time of the offense.*fn46 Thus, excluding younger persons from the
class that is eligible for the death penalty will not diminish the
deterrent value of capital punishment for the vast majority of potential
offenders. And even with respect to those under 16 years of age, it is
obvious that the potential deterrent value of the death sentence is
insignificant for two reasons. 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. And,
even if one posits such a cold-blooded calculation by a 15-year-old, it is
fanciful to believe that he would be deterred by the knowledge that a
small number of persons his age have been executed during the 20th
century. In short, we are not persuaded that the imposition of the death
penalty for offenses committed by persons under 16 years of age has made,
or can be expected to make, any measurable contribution to the goals that
capital punishment is intended to achieve. It is, therefore, "nothing more
than the purposeless and needless imposition of pain and suffering," Coker v.
Georgia, 433 U.S., at 592, and thus an
unconstitutional punishment.*fn47
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VI
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Petitioner's counsel and various amici curiae have asked us to "draw a
line" that would prohibit the execution of any person who was under the
age of 18 at the time of the offense. Our task today, however, is to
decide the case before us; we do so by concluding that the Eighth and
Fourteenth Amendments prohibit the execution of a person who was under 16
years of age at the time of his or her offense.*fn48
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The judgment of the Court of Criminal Appeals is vacated, and the case
is remanded with instructions to enter an appropriate order vacating
petitioner's death sentence.
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It is so ordered. APPENDICES*fn*
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APPENDIX A
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Right to Vote
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The United States Constitution, Amendment 26, requires States to
permit 18-year-olds to vote. No State has lowered its voting age below 18.
The following chart assembles the various provisions from state
constitutions and statutes that provide an 18-year-old voting
age.
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| [40] |
Ala. [No provisions beyond reference to U.S. Const.,
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| [41] |
Amdt. 26]
|
| [42] |
Alaska Alaska Const., Art. V. § 1
|
| [43] |
Ariz. Ariz. Rev. Stat. Ann. § 16-121 (Supp. 1987)
|
| [44] |
Ark. Ark. Code Ann. § 7-8-401 (1987)
|
| [45] |
Cal. Cal. Const., Art. 2, § 2
|
| [46] |
Colo. Colo. Rev. Stat. § 1-2-101 (1980)
|
| [47] |
Conn. Conn. Const., Art. 9; Conn. Gen. Stat. § 9-12 (Supp.
1988)
|
| [48] |
Del. Del. Code Ann., Tit. 15, § 1701 (1981)
|
| [49] |
D.C. D.C. Code § 1-1311(b)(1) (1987)
|
| [50] |
Fla. Fla. Stat. § 97.041 (1987)
|
| [51] |
Ga. Ga. Code Ann. § 21-2-219 (1987)
|
| [52] |
Haw. Haw. Rev. Stat. § 11-12 (1985)
|
| [53] |
Idaho Idaho Code § 34-402 (Supp. 1988)
|
| [54] |
Ill. Ill. Rev. Stat., ch. 46, para. 3-1 (1987)
|
| [55] |
Ind. Ind. Code § 3-7-1-1 (Supp. 1987)
|
| [56] |
Iowa Iowa Code § 47.4 (1987)
|
| [57] |
Kan. Kan. Const., Art. 5, § 1
|
| [58] |
Ky. Ky. Const. § 145
|
| [59] |
La. La. Const., Art. 1, § 10; La. Rev. Stat. Ann.
|
| [60] |
§ 18:101(A) (West 1979)
|
| [61] |
Me. Me. Rev. Stat. Ann., Tit. 21A, § 111(2) (Supp.
1987-1988)
|
| [62] |
Md. Md. Ann. Code, Art. 33, § 3-4(b)(2) (1986)
|
| [63] |
Mass. Mass. Gen. Laws § 51:1 (1986)
|
| [64] |
Mich. Mich. Comp. Laws § 168.492 (1979)
|
| [65] |
Minn. Minn. Stat. § 201.014 (1986)
|
| [66] |
Miss. Miss. Const., Art. 12, § 241
|
| [67] |
Mo. Mo. Const., Art. VIII, § 2
|
| [68] |
Mont. Mont. Const., Art. IV, § 2; Mont. Code Ann.
|
| [69] |
§ 13-1-111 (1987)
|
| [70] |
Neb. Neb. Const., Art. VI, § 1; Neb. Rev. Stat.
|
| [71] |
§ 32-223 (1984)
|
| [72] |
Nev. Nev. Rev. Stat. § 293.485 (1987)
|
| [73] |
N. H. N. H. Const., Pt. 1, Art. 11
|
| [74] |
N. J. N. J. Const., Art. 2, para. 3
|
| [75] |
N. M. [No provisions beyond reference to U.S. Const.,
|
| [76] |
Amdt. 26]
|
| [77] |
N. Y. N. Y. Elec. Law § 5-102 (McKinney 1978)
|
| [78] |
N. C. N. C. Gen. Stat. § 163-55 (1987)
|
| [79] |
N. D. N. D. Const., Art. II, § 1
|
| [80] |
Ohio Ohio Const., Art. V, § 1; Ohio Rev. Code Ann.
|
| [81] |
§§ 3503.01, 3503.011 (1982)
|
| [82] |
Okla. Okla. Const., Art. 3, § 1
|
| [83] |
Ore. Ore. Const., Art. II, § 2
|
| [84] |
Pa. Pa. Stat. Ann., Tit. 25, § 2811 (Purdon Supp.
1988-1889)
|
| [85] |
R. I. R. I. Gen. Laws § 17-1-3 (Supp. 1987)
|
| [86] |
S. C. S. C. Code § 7-5-610 (Supp. 1987)
|
| [87] |
S. D. S. D. Const., Art. VII, § 2; S. D. Codified Laws
|
| [88] |
§ 12-3-1 (1982)
|
| [89] |
Tenn. Tenn. Code Ann. § 2-2-102 (1985)
|
| [90] |
Tex. Tex. Elec. Code Ann. § 11.002 (Supp. 1988)
|
| [91] |
Utah Utah Code Ann. § 20-1-17 (1984)
|
| [92] |
Vt. Vt. Stat. Ann., Tit. 17, § 2121 (1982)
|
| [93] |
Va. Va. Const., Art. II, § 1
|
| [94] |
Wash. Wash. Const., Art. VI, § 1, Amdt. 63
|
| [95] |
W. Va. W. Va. Code § 3-1-3 (1987)
|
| [96] |
Wis. Wis. Const., Art. 3, § 1; Wis. Stat.
|
| [97] |
§§ 6.02, 6.05 (1985-1986)
|
| [98] |
Wyo. Wyo. Stat. § 22-1-102(k) (Supp. 1988) APPENDIX
B
|
| [99] |
Right to Serve on a Jury
|
| [100] |
In no State may anyone below the age of 18 serve on a jury. The
following chart assembles the various state provisions relating to minimum
age for jury service.
|
| [101] |
Ala. Ala. Code § 12-16-60(a)(1) (1986)
|
| [102] |
Alaska Alaska Stat. Ann. § 09.20.010(a)(3) (Supp. 1987)
|
| [103] |
Ariz. Ariz. Rev. Stat. Ann. § 21-301(D) (Supp. 1987)
|
| [104] |
Ark. Ark. Code Ann. § 16-31-101 (1987)
|
| [105] |
Cal. Cal. Civ. Proc. Code Ann. § 198(a)(1) (West Supp.
1988)
|
| [106] |
Colo. Colo. Rev. Stat. § 13-71-109(2)(a) (1973)
|
| [107] |
Conn. Conn. Gen. Stat. § 51-217 (Supp. 1988)
|
| [108] |
Del. Del. Code Ann., Tit. 10, § 4506(b)(1) (Supp. 1986)
|
| [109] |
D.C. D.C. Code § 11-1906(b)(1)(C) (Supp. 1988)
|
| [110] |
Fla. Fla. Stat. § 40.01 (1987)
|
| [111] |
Ga. Ga. Code Ann. § 15-12-40 (Supp. 1988)
|
| [112] |
Haw. Haw. Rev. Stat. § 612-4 (1985)
|
| [113] |
Idaho Idaho Code § 2-209(2)(a) (Supp. 1988)
|
| [114] |
Ill. Ill. Rev. Stat., ch. 78, para. 2 (1987)
|
| [115] |
Ind. Ind. Code § 33-4-5-2 (Supp. 1987)
|
| [116] |
Iowa Iowa Code § 607A.4(1)(a) (1987)
|
| [117] |
Kan. Kan. Stat. Ann. § 43-156 (1986)
|
| [118] |
Ky. Ky. Rev. Stat. § 29A.080(2)(a) (1985)
|
| [119] |
La. La. Code Crim. Proc. Ann., Art. 401(A)(2)
|
| [120] |
(West Supp. 1988)
|
| [121] |
Me. Me. Rev. Stat. Ann., Tit. 14, § 1211 (Supp.
1987-1988)
|
| [122] |
Md. Md. Cts. & Jud. Proc. Code Ann. § 8-104 (1984)
|
| [123] |
Mass. Mass. Gen. Laws § 234:1 (1986)
|
| [124] |
Mich. Mich. Comp. Laws § 600.1307a(1)(a) (Supp.
1988-1989)
|
| [125] |
Minn. Minn. Stat. § 593.41, subd. 2(2) (1986)
|
| [126] |
Miss. Miss. Code Ann. § 13-5-1 (1972)
|
| [127] |
Mo. Mo. Rev. Stat. § 494.010 (1986)
|
| [128] |
Mont. Mont. Code Ann. § 3-15-301 (1987)
|
| [129] |
Neb. Neb. Rev. Stat. § 25-1601 (1985)
|
| [130] |
Nev. Nev. Rev. Stat. § 6.010 (1987)
|
| [131] |
N. H. N. H. Rev. Stat. Ann. § 500-A:3 (1983)
|
| [132] |
N. J. N. J. Stat. Ann. § 9:17B-1 (West Supp. 1988)
|
| [133] |
N. M. N. M. Stat. Ann. § 38-5-1 (1987)
|
| [134] |
N. Y. N. Y. Jud. Law § 510(2) (McKinney Supp. 1988)
|
| [135] |
N. C. N. C. Gen. Stat. § 9-3 (1986)
|
| [136] |
N. D. N. D. Cent. Code § 27-09.1-08(2)(b) (Supp. 1987)
|
| [137] |
Ohio Ohio Rev. Code Ann. § 2313.42 (1984)
|
| [138] |
Okla. Okla. Stat., Tit. 38, § 28 (1981)
|
| [139] |
Ore. Ore. Rev. Stat. § 10.030(2)(c) (1987)
|
| [140] |
Pa. Pa. Cons. Stat. § 4521 (1982)
|
| [141] |
R. I. R. I. Gen. Laws § 9-9-1 (1985)
|
| [142] |
S. C. S. C. Code § 14-7-130 (1987)
|
| [143] |
S. D. S. D. Codified Laws § 16-13-10 (1987)
|
| [144] |
Tenn. Tenn. Code Ann. § 22-1-101 (1980)
|
| [145] |
Tex. Tex. Govt. Code Ann. § 62.102 (1988)
|
| [146] |
Utah Utah Code Ann. § 78-46-7(1)(b) (1987)
|
| [147] |
Vt. Vt. Stat. Ann. -- Administrative Orders and Rules:
Quali-
|
| [148] |
fication, List, Selection and Summoning of All Jurors --
|
| [149] |
Rule 25 (1986)
|
| [150] |
Va. Va. Code § 8.01-337 (Supp. 1988)
|
| [151] |
Wash. Wash. Rev. Code § 2.36.070 (1987)
|
| [152] |
W. Va. W. Va. Code § 52-1-8(b)(1) (Supp. 1988)
|
| [153] |
Wis. Wis. Stat. § 756.01 (1985-1986)
|
| [154] |
Wyo. Wyo. Stat. § 1-11-101 (1988) APPENDIX
C
|
| [155] |
Right to Drive Without Parental Consent
|
| [156] |
Most States have various provisions regulating driving age, from
learner's permits through driver's licenses. In all States but one,
15-year-olds either may not drive, or may drive only with parental consent
or accompaniment.
|
| [157] |
Ala. Ala. Code § 32-6-7(1) (1983)
|
| [158] |
Alaska Alaska Stat. Ann. § 28.15.071 (Supp. 1987)
|
| [159] |
Ariz. Ariz. Rev. Stat. Ann. § 28-413(A)(1) (Supp. 1987)
|
| [160] |
Ark. Ark. Code Ann. § 27-16-604(a)(1) (1987)
|
| [161] |
Cal. Cal. Veh. Code Ann. § 12507 (West 1987)
|
| [162] |
Colo. Colo. Rev. Stat. § 42-2-107(1) (1984)
|
| [163] |
Conn. Conn. Gen. Stat. § 14-36 (1985)
|
| [164] |
Del. Del. Code Ann., Tit. 21, § 2707 (1985)
|
| [165] |
D.C. D.C. Code § 40-301 (1981)
|
| [166] |
Fla. Fla. Stat. § 322.09 (1987)
|
| [167] |
Ga. Ga. Code Ann. § 40-5-26 (1985)
|
| [168] |
Haw. Haw. Rev. Stat. § 286-112 (1985)
|
| [169] |
Idaho Idaho Code § 49-313 (Supp. 1987)
|
| [170] |
Ill. Ill. Rev. Stat., ch. 95 1/2, para. 6-103 (1987)
|
| [171] |
Ind. Ind. Code § 9-1-4-32 (1982)
|
| [172] |
Iowa Iowa Code § 321.177 (1987)
|
| [173] |
Kan. Kan. Stat. Ann. § 8-237 (1982)
|
| [174] |
Ky. Ky. Rev. Stat. Ann. § 186.470 (1980)
|
| [175] |
La. La. Rev. Stat. Ann. § 32:407 (West Supp. 1988)
|
| [176] |
Me. Me. Rev. Stat. Ann., Tit. 29, § 585 (Supp.
1987-1988)
|
| [177] |
Md. Md. Transp. Code Ann. § 16-103 (1987)
|
| [178] |
Mass. Mass. Gen. Laws § 90:8 (1986)
|
| [179] |
Mich. Mich. Comp. Laws § 257.308 (1979)
|
| [180] |
Minn. Minn. Stat. § 171.04 (1986)
|
| [181] |
Miss. Miss. Code Ann. § 63-1-23 (Supp. 1987)
|
| [182] |
Mo. Mo. Rev. Stat. § 302.060 (Supp. 1987)
|
| [183] |
Mont. Mont. Code Ann. § 61-5-105 (1987) (15-year-olds
may
|
| [184] |
drive without parental consent if they pass a driver's
edu-
|
| [185] |
cation course)
|
| [186] |
Neb. Neb. Rev. Stat. § 60-407 (1984)
|
| [187] |
Nev. Nev. Rev. Stat. § 483.250 (1987)
|
| [188] |
N. H. N. H. Rev. Stat. Ann. § 263:17 (Supp. 1987)
|
| [189] |
N. J. N. J. Stat. Ann. § 39:3-10 (West Supp. 1988)
|
| [190] |
N. M. N. M. Stat. Ann. § 66-5-11 (1984)
|
| [191] |
N. Y. N. Y. Veh. & Traf. Law § 502(2) (McKinney
1986)
|
| [192] |
N. C. N. C. Gen. Stat. § 20-11 (1983)
|
| [193] |
N. D. N. D. Cent. Code § 39-06-08 (1987)
|
| [194] |
Ohio Ohio Rev. Code Ann. § 4507.07 (Supp. 1987)
|
| [195] |
Okla. Okla. Stat., Tit. 47, § 6-107 (Supp. 1987)
|
| [196] |
Ore. Ore. Rev. Stat. § 807.060 (1987)
|
| [197] |
Pa. Pa. Cons. Stat., § 1503 (1987)
|
| [198] |
R. I. R. I. Gen. Laws § 31-10-3 (Supp. 1987)
|
| [199] |
S. C. S. C. Code § 56-1-100 (1976)
|
| [200] |
S. D. S. D. Codified Laws § 32-12-6 (1984)
|
| [201] |
Tenn. Tenn. Code Ann. § 55-7-104 (Supp. 1987)
|
| [202] |
Tex. Tex. Rev. Civ. Stat. Ann., Art. 6687b(4) (Vernon
|
| [203] |
Supp. 1988)
|
| [204] |
Utah Utah Code Ann. § 41-2-109 (Supp. 1987)
|
| [205] |
Vt. Vt. Stat. Ann., Tit. 23, § 607 (1987)
|
| [206] |
Va. Va. Code § 46.1-357 (Supp. 1988)
|
| [207] |
Wash. Wash. Rev. Code § 46.20.031 (1987)
|
| [208] |
W. Va. W. Va. Code § 17B-2-3 (1986)
|
| [209] |
Wis. Wis. Stat. § 343.15 (1985-1986)
|
| [210] |
Wyo. Wyo. Stat. § 31-7-112 (Supp. 1988) APPENDIX
D
|
| [211] |
Right to Marry Without Parental Consent
|
| [212] |
In all States but four, 15-year-olds may not marry without parental
consent.
|
| [213] |
Ala. Ala. Code § 30-1-5 (1983)
|
| [214] |
Alaska Alaska Stat. Ann. § 25.05.171 (1983) (judge may
permit
|
| [215] |
minor to marry without parental consent, even in the
face
|
| [216] |
of parental opposition, in certain circumstances)
|
| [217] |
Ariz. Ariz. Rev. Stat. Ann. § 25-102(A) (1976)
|
| [218] |
Ark. Ark. Code Ann. § 9-11-102 (1987)
|
| [219] |
Cal. Cal. Civ. Code Ann. § 4101 (West 1983)
|
| [220] |
Colo. Colo. Rev. Stat. § 14-2-106(1)(a)(I) (1987)
|
| [221] |
Conn. Conn. Gen. Stat. § 46b-30 (1986)
|
| [222] |
Del. Del. Code Ann., Tit. 13, § 123 (1981)
|
| [223] |
D.C. D.C. Code § 30-111 (1981)
|
| [224] |
Fla. Fla. Stat. § 741.04 (1987)
|
| [225] |
Ga. Ga. Code Ann. § 19-3-37 (1982)
|
| [226] |
Haw. Haw. Rev. Stat. § 572-2 (1985)
|
| [227] |
Idaho Idaho Code § 32-202 (1983)
|
| [228] |
Ill. Ill. Rev. Stat., ch. 40, para. 203(1) (1987)
|
| [229] |
Ind. Ind. Code § 31-7-1-6 (Supp. 1987)
|
| [230] |
Iowa Iowa Code § 595.2 (1987)
|
| [231] |
Kan. Kan. Stat. Ann. § 23-106 (1981)
|
| [232] |
Ky. Ky. Rev. Stat. § 402.210 (1984)
|
| [233] |
La. La. Civ. Code Ann., Art. 87 (West Supp. 1988)
(minors
|
| [234] |
not legally prohibited from marrying, even without
paren-
|
| [235] |
tal consent, but marriage ceremony required); La. Rev.
|
| [236] |
Stat. Ann. § 9:211 (West Supp. 1988) (official may not
per-
|
| [237] |
form marriage ceremony in which a minor is a party with-
|
| [238] |
out parental consent; comments to Civ. Code Ann., Art.
|
| [239] |
87, suggest that such a marriage is valid but that
official
|
| [240] |
may face sanctions)
|
| [241] |
Me. Me. Rev. Stat. Ann., Tit. 19, § 62 (Supp. 1987-1988)
|
| [242] |
Md. Md. Fam. Law Code Ann. § 2-301 (1984) (either party
|
| [243] |
under 16 may marry without parental consent if "the
|
| [244] |
woman to be married . . . is pregnant or has given birth
to
|
| [245] |
a child")
|
| [246] |
Mass. Mass. Gen. Laws § 207:7 (1988)
|
| [247] |
Mich. Mich. Comp. Laws § 551.103 (1988)
|
| [248] |
Minn. Minn. Stat. § 517.02 (1986)
|
| [249] |
Miss. Miss. Code Ann. § 93-1-5(d) (Supp. 1987) (female
may
|
| [250] |
marry at 15 without parental consent)
|
| [251] |
Mo. Mo. Rev. Stat. § 451.090 (1986)
|
| [252] |
Mont. Mont. Code Ann. § 40-1-202 (1987)
|
| [253] |
Neb. Neb. Rev. Stat. § 42-105 (1984)
|
| [254] |
Nev. Nev. Rev. Stat. § 122.020 (1987)
|
| [255] |
N. H. N. H. Rev. Stat. Ann. § 457:5 (1983)
|
| [256] |
N. J. N. J. Stat. Ann. § 9:17B-1 (West Supp. 1988)
|
| [257] |
N. M. N. M. Stat. Ann. § 40-1-6 (1986)
|
| [258] |
N. Y. N. Y. Dom. Rel. Law § 15 (McKinney 1988)
|
| [259] |
N. C. N. C. Gen. Stat. § 51-2 (Supp. 1987)
|
| [260] |
N. D. N. D. Cent. Code § 14-03-02 (1981)
|
| [261] |
Ohio Ohio Rev. Code Ann. § 3101.01 (Supp. 1987)
|
| [262] |
Okla. Okla. Stat., Tit. 43, § 3 (1981)
|
| [263] |
Ore. Ore. Rev. Stat. § 106.060 (1987)
|
| [264] |
Pa. Pa. Stat. Ann., Tit. 48, § 1-5(c) (Purdon Supp.
1988-1989)
|
| [265] |
R. I. R. I. Gen. Laws § 15-2-11 (1981)
|
| [266] |
S. C. S. C. Code § 20-1-250 (1985)
|
| [267] |
S. D. S. D. Codified Laws § 25-1-9 (1984)
|
| [268] |
Tenn. Tenn. Code Ann. § 36-3-106 (Supp. 1987)
|
| [269] |
Tex. Tex. Fam. Code Ann. § 1.51 (Supp. 1987-1988)
|
| [270] |
Utah Utah Code Ann. § 30-1-9 (1984)
|
| [271] |
Vt. Vt. Stat. Ann., Tit. 18, § 5142 (1987)
|
| [272] |
Va. Va. Code § 20-48 (1983)
|
| [273] |
Wash. Wash. Rev. Code § 26.04.210 (1987)
|
| [274] |
W. Va. W. Va. Code § 48-1-1 (1986)
|
| [275] |
Wis. Wis. Stat. § 765.02 (1985-1986)
|
| [276] |
Wyo. Wyo. Stat. § 20-1-102 (1987) APPENDIX
E
|
| [277] |
Right to Purchase Pornographic Materials
|
| [278] |
No minor may purchase pornography in the 50 States that have
legislation dealing with obscenity.
|
| [279] |
Ala. Ala. Code § 13A-12-170(1) (Supp. 1987)
|
| [280] |
Alaska [No legislation]
|
| [281] |
Ariz. Ariz. Rev. Stat. Ann. § 13-3506 (Supp. 1987)
|
| [282] |
Ark. Ark. Code Ann. §§ 5-68-501, 5-68-502 (1987)
|
| [283] |
Cal. Cal. Penal Code Ann. § 313.1 (West 1988)
|
| [284] |
Colo. Colo. Rev. Stat. § 18-7-502 (1986)
|
| [285] |
Conn. Conn. Gen. Stat. § 53a-196 (1985)
|
| [286] |
Del. Del. Code Ann., Tit. 11, § 1361(b) (1987)
|
| [287] |
D.C. D.C. Code § 22-2001(b) (1981)
|
| [288] |
Fla. Fla. Stat. § 847.012 (1987)
|
| [289] |
Ga. Ga. Code Ann. § 16-12-103 (1984)
|
| [290] |
Haw. Haw. Rev. Stat. § 712-1215 (1985)
|
| [291] |
Idaho Idaho Code § 18-1513 (1987)
|
| [292] |
Ill. Ill. Rev. Stat., ch. 38, para. 11-21 (1987)
|
| [293] |
Ind. Ind. Code § 35-49-3-3 (Supp. 1987)
|
| [294] |
Iowa Iowa Code § 728.2 (1987)
|
| [295] |
Kan. Kan. Stat. Ann. § 21-4301a (Supp. 1987)
|
| [296] |
Ky. Ky. Rev. Stat. § 531-030 (1985)
|
| [297] |
La. La. Rev. Stat. Ann. § 14:91.11 (West 1986)
|
| [298] |
Me. Me. Rev. Stat. Ann., Tit. 17, § 2911 (1983 and
|
| [299] |
Supp. 1987-1988)
|
| [300] |
Md. Md. Ann. Code, Art. 27, § 419 (1987)
|
| [301] |
Mass. Mass. Gen. Laws § 272:28 (1986)
|
| [302] |
Mich. Mich. Comp. Laws § 750.142 (1979)
|
| [303] |
Minn. Minn. Stat. § 617.293 (1986)
|
| [304] |
Miss. Miss. Code Ann. § 97-5-27 (Supp. 1987)
|
| [305] |
Mo. Mo. Rev. Stat. § 573.040 (Supp. 1987)
|
| [306] |
Mont. Mont. Code Ann. § 45-8-201 (1987)
|
| [307] |
Neb. Neb. Rev. Stat. § 28-808 (1985)
|
| [308] |
Nev. Nev. Rev. Stat. § 201.265 (1987)
|
| [309] |
N. H. N. H. Rev. Stat. Ann. § 571-B:2 (1986)
|
| [310] |
N. J. N. J. Stat. Ann. §§ 2C:34-2, 2C:34-3 (West 1982
and
|
| [311] |
Supp. 1988)
|
| [312] |
N. M. N. M. Stat. Ann. § 30-37-2 (1980)
|
| [313] |
N. Y. N. Y. Penal Law § 235.21 (McKinney 1980)
|
| [314] |
N. C. N. C. Gen. Stat. § 19-13 (1983)
|
| [315] |
N. D. N. D. Cent. Code § 12.1-27.1-03 (1985)
|
| [316] |
Ohio Ohio Rev. Code Ann. § 2907.31 (1986)
|
| [317] |
Okla. Okla. Stat., Tit. 21, § 1040.8 (Supp. 1987)
|
| [318] |
Ore. Ore. Rev. Stat. § 167.065 (1987)
|
| [319] |
Pa. Pa. Cons. Stat. § 5903 (1982)
|
| [320] |
R. I. R. I. Gen. Laws § 11-31-10 (Supp. 1987)
|
| [321] |
S. C. S. C. Code § 16-15-385 (Supp. 1987)
|
| [322] |
S. D. S. D. Codified Laws § 22-24-28 (1988)
|
| [323] |
Tenn. Tenn. Code Ann. § 39-6-1132 (1982)
|
| [324] |
Tex. Tex. Penal Code Ann. § 43.24 (1974)
|
| [325] |
Utah Utah Code Ann. § 76-10-1206 (1978)
|
| [326] |
Vt. Vt. Stat. Ann., Tit. 13, § 2802 (1974)
|
| [327] |
Va. Va. Code § 18.2-391 (1988)
|
| [328] |
Wash. Wash. Rev. Code § 9.68.060 (1987)
|
| [329] |
W. Va. W. Va. Code § 61-8A-2 (1984)
|
| [330] |
Wis. Wis. Stat. § 944.21 (1985-1986)
|
| [331] |
Wyo. Wyo. Stat. § 6-4-302 (1988) APPENDIX
F
|
| [332] |
Right to Participate in Legalized Gambling Without Parental
Consent
|
| [333] |
In 39 of the 48 States in which some form of legalized gambling is
permitted, minors are absolutely prohibited from participating in some or
all forms of such gambling. In three States parental consent vitiates such
prohibition; in six States, no age restrictions are expressed in the
statutory provisions authorizing gambling.
|
| [334] |
Ala. Ala. Code § 11-65-44 (1985)
|
| [335] |
Alaska Alaska Stat. Ann. § 43.35.040(a)(1) (1983)
|
| [336] |
Ariz. Ariz. Rev. Stat. Ann. § 5-112(E) (Supp. 1987)
|
| [337] |
Ark. Ark. Code Ann. § 23-110-405(c) (Supp. 1987)
|
| [338] |
Cal. Cal. Penal Code Ann. § 326.5(e) (West 1988)
|
| [339] |
Colo. Colo. Rev. Stat. § 24-35-214(1)(c) (1982)
|
| [340] |
Conn. Conn. Gen. Stat. § 7-186a (Supp. 1988)
|
| [341] |
Del. Del. Code Ann., Tit. 29, § 4810(a) (1983)
|
| [342] |
D.C. D.C. Code § 2-2534 (1988)
|
| [343] |
Fla. Fla. Stat. § 849.093(9)(a) (1987)
|
| [344] |
Ga. Ga. Code Ann. § 16-12-58 (1984)
|
| [345] |
Haw. Haw. Rev. Stat. § 712-1231 (1985)
|
| [346] |
Idaho Idaho Code § 67-7415 (Supp. 1988)
|
| [347] |
Ill. Ill. Rev. Stat., ch. 120, para. 1102(9) (1988)
|
| [348] |
Ind. [Gambling not permitted by statute]
|
| [349] |
Iowa Iowa Code § 233.1(2)(c) (1987)
|
| [350] |
Kan. Kan. Stat. Ann. § 79-4706(m) (1984)
|
| [351] |
Ky. [No age restrictions]
|
| [352] |
La. La. Rev. Stat. Ann. § 14:92(A)(4) (West 1986)
|
| [353] |
Me. Me. Rev. Stat. Ann., Tit. 17, § 319 (1983)
|
| [354] |
Md. [No age restrictions]
|
| [355] |
Mass. Mass. Gen. Laws § 128A:10 (1986)
|
| [356] |
Mich. Mich. Comp. Laws Ann. § 432.110a(a) (Supp.
1988-1989)
|
| [357] |
Minn. [No age restrictions]
|
| [358] |
Miss. Miss. Code Ann. § 97-33-21 (1972)
|
| [359] |
Mo. Mo. Rev. Stat. § 313.280 (1986)
|
| [360] |
Mont. Mont. Code Ann. § 23-5-506 (1987)
|
| [361] |
Neb. Neb. Rev. Stat. § 9-250 (Supp. 1986)
|
| [362] |
Nev. Nev. Rev. Stat. § 463.350 (1987)
|
| [363] |
N. H. N. H. Rev. Stat. Ann. §§ 287-A:4, 287-E:7(III),
and
|
| [364] |
287-E:21(V) (1987)
|
| [365] |
N. J. N. J. Stat. Ann. § 9:17B-1 (West Supp. 1988)
|
| [366] |
N. M. [No age restrictions]
|
| [367] |
N. Y. N. Y. Tax Law § 1610 (McKinney 1987)
|
| [368] |
N. C. [No age restrictions]
|
| [369] |
N. D. N. D. Cent. Code § 53-06.1-07.1 (Supp. 1987)
|
| [370] |
Ohio Ohio Rev. Code Ann. § 3770.07 (Supp. 1987)
|
| [371] |
Okla. Okla. Stat., Tit. 21, § 995.13 (1981) (permitted
with
|
| [372] |
parental consent)
|
| [373] |
Ore. Ore. Rev. Stat. § 163.575(1)(c) (1987)
|
| [374] |
Pa. Pa. Stat. Ann., Tit. 10, § 305 (Purdon Supp.
1988-1989)
|
| [375] |
(permitted with parental consent)
|
| [376] |
R. I. R. I. Gen. Laws § 11-19-32(l) (Supp. 1987)
|
| [377] |
S. C. [Gambling not permitted by statute]
|
| [378] |
S. D. S. D. Codified Laws § 42-7A-32 (Supp. 1988)
|
| [379] |
Tenn. Tenn. Code Ann. § 39-6-609(f) (Supp. 1987)
|
| [380] |
Tex. Tex. Rev. Civ. Stat. Ann., Art. 179d, § 17 (Vernon
Supp.
|
| [381] |
1987-1988) (permitted with parental consent)
|
| [382] |
Utah [Gambling not permitted by statute]
|
| [383] |
Vt. Vt. Stat. Ann., Tit. 31, § 674(J) (1986)
|
| [384] |
Va. [No age restrictions]
|
| [385] |
Wash. Wash. Rev. Code § 67.70.120 (1987)
|
| [386] |
W. Va. W. Va. Code § 19-23-9(e) (Supp. 1988)
|
| [387] |
Wis. Wis. Stat. § 163.51(13) (1985-1986)
|
| [388] |
Wyo. Wyo. Stat. § 11-25-109(c) (Supp. 1988)
|
| [389] |
Disposition
|
| [390] |
724 P. 2d 780, vacated and remanded.
|
| [391] |
JUSTICE O'CONNOR, concurring in the judgment.
|
| [392] |
The plurality and dissent agree on two fundamental propositions: that
there is some age below which a juvenile's crimes can never be
constitutionally punished by death, and that our precedents require us to
locate this age in light of the "'evolving standards of decency that mark
the progress of a maturing society.'" See ante, at 821 (quoting Trop v.
Dulles, 356 U.S. 86, 101 (1958) (opinion of Warren,
C. J.)); ante, at 827-829; post, at 864-865, 872. See also, e. g.,
McCleskey v. Kemp, 481 U.S. 279, 300 (1987). I accept
both principles. The disagreements between the plurality and the dissent
rest on their different evaluations of the evidence available to us about
the relevant social consensus. Although I believe that a national
consensus forbidding the execution of any person for
a crime committed before the age of 16 very likely does exist, I am
reluctant to adopt this conclusion as a matter of constitutional law
without better evidence than we now possess. Because I conclude that the
sentence in this case can and should be set aside on narrower grounds than
those adopted by the plurality, and because the grounds on which I rest
should allow us to face the more general question when better evidence is
available, I concur only in the judgment of the Court.
|
| [393] |
I
|
| [394] |
Both the plurality and the dissent look initially to the decisions of
American legislatures for signs of a national consensus about the minimum
age at which a juvenile's crimes may lead to capital punishment. Although
I agree with the dissent's contention, post, at 865, that these decisions
should provide the most reliable signs of a society-wide consensus on this
issue, I cannot agree with the dissent's interpretation of the
evidence.
|
| [395] |
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. See ante, at 829, and
n. 30. When one adds these 18 States to the 14 that have rejected capital
punishment completely, see ante, at 826, and n. 25, it appears that almost
two-thirds of the state legislatures have definitely concluded that no
15-year-old should be exposed to the threat of execution. See also ante,
at 829, n. 29 (pointing out that an additional two States with death
penalty statutes on their books seem to have abandoned capital punishment
in practice). Where such a large majority of the state legislatures have
unambiguously outlawed capital punishment for 15-year-olds, and where no
legislature in this country has affirmatively and unequivocally endorsed
such a practice, strong counterevidence would be required to persuade me
that a national consensus against this practice does not exist. The
dissent argues that it has found such counterevidence in the laws of the
19 States that authorize capital punishment without setting any statutory
minimum age. If we could be sure that each of these 19 state legislatures
had deliberately chosen to authorize capital punishment for crimes
committed at the age of 15, one could hardly suppose that there is a
settled national consensus opposing such a practice. In fact, however, the
statistics relied on by the dissent may be quite misleading. When a
legislature provides for some 15-year-olds to be processed through the
adult criminal justice system, and capital punishment is available for
adults in that jurisdiction, the death penalty becomes at least
theoretically applicable to such defendants. This is how petitioner was
rendered death eligible, and the same possibility appears to exist in 18
other States. See post, at 861-862; ante, at 828, n. 26. As the plurality
points out, however, it does not necessarily follow that the legislatures
in those jurisdictions have deliberately concluded that it would be
appropriate to impose capital punishment on 15-year-olds (or on even
younger defendants who may be tried as adults in some jurisdictions). See
ante, at 826, n. 24.
|
| [396] |
There are many reasons, having nothing whatsoever to do with capital
punishment, that might motivate a legislature to provide as a general
matter for some 15-year-olds to be channeled into the adult criminal
justice process. The length or conditions of confinement available in the
juvenile system, for example, might be considered inappropriate for
serious crimes or for some recidivists. Similarly, a state legislature
might conclude that very dangerous individuals, whatever their age, should
not be confined in the same facility with more vulnerable juvenile
offenders. Such reasons would suggest nothing about the appropriateness of
capital punishment for 15-year-olds. The absence of any such implication
is illustrated by the very States that the dissent cites as evidence of a
trend toward lowering the age at which juveniles may be punished as
adults. See post, at 867, and n. 3. New York, which
recently adopted legislation allowing juveniles as young as 13 to be tried
as adults, does not authorize capital punishment under any circumstances.
In New Jersey, which now permits some 14-year-olds to be tried as adults,
the minimum age for capital punishment is 18. In both cases, therefore,
the decisions to lower the age at which some juveniles may be treated as
adults must have been based on reasons quite separate from the
legislatures' views about the minimum age at which a crime should render a
juvenile eligible for the death penalty.
|
| [397] |
Nor have we been shown evidence that other legislatures directly
considered the fact that the interaction between their capital punishment
statutes and their juvenile offender statutes could in theory lead to
executions for crimes committed before the age of 16. The very real
possibility that this result was not considered is illustrated by the
recent federal legislation, cited by the dissent, which lowers to 15 the
age at which a defendant may be tried as an adult. See post, at 865
(discussing Comprehensive Crime Control Act of 1984, Pub. L. 98-473, 98
Stat. 2149). Because a number of federal statutes have long provided for
capital punishment, see post, at 866, n. 1, this legislation appears to
imply that 15-year-olds may now be rendered death eligible under federal
law. The dissent does not point to any legislative history suggesting that
Congress considered this implication when it enacted the Comprehensive
Crime Control Act. The apparent absence of such legislative history is
especially striking in light of the fact that the United States has agreed
by treaty to set a minimum age of 18 for capital punishment in certain
circumstances. See Article 68 of the Geneva Convention Relative to the
Protection of Civilian Persons in Time of War, August 12, 1949, [1955] 6
U. S. T. 3516, 3560, T. I. A. S. No. 3365 (rules pertaining to military
occupation); ante, at 831, n. 34; see also ibid. (citing two other
international agreements, signed but not ratified by the United States,
prohibiting capital punishment for juveniles). Perhaps even more striking
is the
fact that the United States Senate recently passed a bill authorizing
capital punishment for certain drug offenses, but prohibiting application
of this penalty to persons below the age of 18 at the time of the crime.
134 Cong. Rec. 14117, 14118 (1988). Whatever other implications the
ratification of Article 68 of the Geneva Convention may have, and whatever
effects the Senate's recent action may eventually have, both tend to
undercut any assumption that the Comprehensive Crime Control Act signals a
decision by Congress to authorize the death penalty for some 15-year-old
felons.
|
| [398] |
Thus, there is no indication that any legislative body in this country
has rendered a considered judgment approving the imposition of capital
punishment on juveniles who were below the age of 16 at the time of the
offense. It nonetheless is true, although I think the dissent has
overstated its significance, that the Federal Government and 19 States
have adopted statutes that appear to have the legal effect of rendering
some of these juveniles death eligible. That fact is a real obstacle in
the way of concluding that a national consensus forbids this practice. It
is appropriate, therefore, to examine other evidence that might indicate
whether or not these statutes are inconsistent with settled notions of
decency in our society.
|
| [399] |
In previous cases, we have examined execution statistics, as well as
data about jury determinations, in an effort to discern whether the
application of capital punishment to certain classes of defendants has
been so aberrational that it can be considered unacceptable in our
society. See, e. g., Coker v. Georgia, 433
U.S. 584, 592 (1977) (plurality opinion); Enmund v. Florida, 458 U.S. 782, 794-796 (1982); id., at 818-819
(O'CONNOR, J., dissenting). In this case, the plurality emphasizes that
four decades have gone by since the last execution of a defendant who was
younger than 16 at the time of the offense, and that only 5 out of 1,393
death sentences during a recent 5-year period involved such defendants. District
v. Kuhlmeier, 484 U.S. 260 (1988); Schall v. Martin, 467 U.S. 253 (1984); McKeiver v. Pennsylvania, 403 U.S. 528 (1971); Ginsberg v. New York,
390 U.S. 629 (1968). But compare Planned Parenthood
of Central Missouri v. Danforth, 428 U.S. 52, 74-75
(1976) (unconstitutional for a legislature to presume that all minors are
incapable of providing informed consent to abortion), and Bellotti v.
Baird, 443 U.S. 622, 654 (1979) (STEVENS, J., joined
by BRENNAN, MARSHALL, and BLACKMUN, JJ., concurring in judgment) (same),
with Akron v. Akron Center for Reproductive Health, Inc., 462
U.S. 416, 469, n. 12 (1983) (O'CONNOR, J., dissenting)
(parental notification requirements may be constitutional). The special
qualitative characteristics of juveniles that justify legislatures in
treating them differently from adults for many other purposes are also
relevant to Eighth Amendment proportionality analysis. These
characteristics, however, vary widely among different individuals of the
same age, and I would not substitute our inevitably subjective judgment
about the best age at which to draw a line in the capital punishment
context for the judgments of the Nation's legislatures. Cf. Enmund, supra,
at 826, and n. 42 (O'CONNOR, J., dissenting).
|
| [400] |
The history of the death penalty instructs that there is danger in
inferring a settled societal consensus from statistics like those relied
on in this case. In 1846, Michigan became the first State to abolish the
death penalty for all crimes except treason, and Rhode Island soon
thereafter became the first jurisdiction to abolish capital punishment
completely. F. Zimring & G. Hawkins, Capital Punishment and the
American Agenda 28 (1986). In succeeding decades, other American States
continued the trend towards abolition, especially during the years just
before and during World War I. Id., at 28-29. Later, and particularly
after World War II, there ensued a steady and dramatic decline in
executions -- both in absolute terms and in relation to the number of
homicides occurring in the country. W. Bowers, Legal Homicide -28
(1984). In the 1950's and 1960's, more States abolished or radically
restricted capital punishment, and executions ceased completely for
several years beginning in 1968. H. Bedau, The Death Penalty in America
23, 25 (3d ed. 1982).
|
| [401] |
In 1972, when this Court heard arguments on the constitutionality of
the death penalty, such statistics might have suggested that the practice
had become a relic, implicitly rejected by a new societal consensus.
Indeed, counsel urged the Court to conclude that "the number of cases in
which the death penalty is imposed, as compared with the number of cases
in which it is statutorily available, reflects a general revulsion toward
the penalty that would lead to its repeal if only it were more generally
and widely enforced." Furman v. Georgia, 408 U.S. 238, 386 (1972) (Burger, C. J., dissenting). We now know that
any inference of a societal consensus rejecting the death penalty would
have been mistaken. But had this Court then declared the existence of such
a consensus, and outlawed capital punishment, legislatures would very
likely not have been able to revive it. The mistaken premise of the
decision would have been frozen into constitutional law, making it
difficult to refute and even more difficult to reject.
|
| [402] |
The step that the plurality would take today is much narrower in
scope, but it could conceivably reflect an error similar to the one we
were urged to make in Furman. The day may come when we must decide whether
a legislature may deliberately and unequivocally resolve upon a policy
authorizing capital punishment for crimes committed at the age of 15. In
that event, we shall have to decide the Eighth Amendment issue that
divides the plurality and the dissent in this case, and we shall have to
evaluate the evidence of societal standards of decency that is available
to us at that time. In my view, however, we need not and should not decide
the question today. II
|
| [403] |
Under the Eighth Amendment, the death penalty has been treated
differently from all other punishments. See, e. g., California v. Ramos, 463 U.S. 992, 998-999, and n. 9 (1983). Among the
most important and consistent themes in this Court's death penalty
jurisprudence is the need for special care and deliberation in decisions
that may lead to the imposition of that sanction. The Court has
accordingly imposed a series of unique substantive and procedural
restrictions designed to ensure that capital punishment is not imposed
without the serious and calm reflection that ought to precede any decision
of such gravity and finality.
|
| [404] |
The restrictions that we have required under the Eighth Amendment
affect both legislatures and the sentencing authorities responsible for
decisions in individual cases. Neither automatic death sentences for
certain crimes, for example, nor statutes committing the sentencing
decision to the unguided discretion of judges or juries, have been upheld.
See, e. g., Woodson v. North Carolina, 428 U.S. 280
(1976); Roberts v. Louisiana, 428 U.S. 325 (1976);
Gregg v. Georgia, 428 U.S. 153, 188-189 (1976)
(opinion of Stewart, Powell, and Stevens, JJ.) (discussing Furman v.
Georgia, supra). We have rejected both legislative restrictions on the
mitigating evidence that a sentencing authority may consider, e. g.,
Lockett v. Ohio, 438 U.S. 586 (1978); Eddings v.
Oklahoma, 455 U.S. 104 (1982), and the lack of
sufficiently precise restrictions on the aggravating circumstances that
may be considered, e. g., Godfrey v. Georgia, 446 U.S. 420 (1980). As a practical matter we have virtually required
that the death penalty be imposed only when a guilty verdict has been
followed by separate trial-like sentencing proceedings, and we have
extended many of the procedural restrictions applicable during criminal
trials into these proceedings. See, e. g., Gardner v. Florida,
430 U.S. 349 (1977); Estelle v. Smith, 451
U.S. 454 (1981); Bullington v. Missouri, 451 U.S. 430 (1981).
Legislatures have been forbidden to authorize capital punishment for
certain crimes. Coker v. Georgia, 433
U.S. 584 (1977); Enmund v. Florida, 458 U.S. 782 (1982); see also Ford v. Wainwright, 477 U.S. 399 (1986) (Eighth Amendment forbids the execution of insane
prisoners). Constitutional scrutiny in this area has been more searching
than in the review of non-capital sentences. See Enmund v. Florida, supra,
at 815, n. 27 (O'CONNOR, J., dissenting); Rummel v. Estelle, 445
U.S. 263, 272 (1980).
|
| [405] |
The case before us today raises some of the same concerns that have
led us to erect barriers to the imposition of capital punishment in other
contexts. Oklahoma has enacted a statute that authorizes capital
punishment for murder, without setting any minimum age at which the
commission of murder may lead to the imposition of that penalty. The State
has also, but quite separately, provided that 15-year-old murder
defendants may be treated as adults in some circumstances. Because it
proceeded in this manner, there is a considerable risk that the Oklahoma
Legislature either did not realize that its actions would have the effect
of rendering 15-year-old defendants death eligible or did not give the
question the serious consideration that would have been reflected in the
explicit choice of some minimum age for death eligibility. Were it clear
that no national consensus forbids the imposition of capital punishment
for crimes committed before the age of 16, the implicit nature of the
Oklahoma Legislature's decision would not be constitutionally problematic.
In the peculiar circumstances we face today, however, the Oklahoma
statutes have presented this Court with a result that is of very dubious
constitutionality, and they have done so without the earmarks of careful
consideration that we have required for other kinds of decisions leading
to the death penalty. In this unique situation, I am prepared to conclude
that petitioner and others who were below the age of 16 at the time of
their offense may not be executed under the authority of a capital
punishment statute that specifies no minimum age
at which the commission of a capital crime can lead to the offender's
execution.*fn*
|
| [406] |
The conclusion I have reached in this unusual case is itself unusual.
I believe, however, that it is in keeping with the principles that have
guided us in other Eighth Amendment cases. It is also supported by the
familiar principle -- applied in different ways in different contexts --
according to which we should avoid unnecessary, or unnecessarily broad,
constitutional adjudication. See generally, e. g., Ashwander v. TVA, 297 U.S. 288, 341-356 (1936) (Brandeis, J.,
concurring). The narrow conclusion I have reached in this case is
consistent with the underlying rationale for that principle, which was
articulated many years ago by Justice Jackson: "We are not final because
we are infallible, but we are infallible only because we are final." Brown
v. Allen, 344 U.S. 443, 540 (1953) (opinion
concurring in result); see also Califano v. Yamasaki, 442 U.S.
682, 692-693 (1979). By leaving open for now the broader Eighth
Amendment question that both the plurality and the dissent would resolve,
the approach I take allows the ultimate moral issue at stake in the
constitutional question to be addressed in the first instance by
those best suited to do so, the people's elected
representatives.
|
| [407] |
For the reasons stated in this opinion, I agree that petitioner's
death sentence should be vacated, and I therefore concur in the judgment
of the Court.
|
| [408] |
JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE WHITE join,
dissenting.
|
| [409] |
If the issue before us today were whether an automatic death penalty
for conviction of certain crimes could be extended to individuals younger
than 16 when they commit the crimes, thereby preventing individualized
consideration of their maturity and moral responsibility, I would accept
the plurality's conclusion that such a practice is opposed by a national
consensus, sufficiently uniform and of sufficiently long standing, to
render it cruel and unusual punishment within the meaning of the Eighth
Amendment. We have already decided as much, and more, in Lockett v. Ohio, 438 U.S. 586 (1978). I might even agree with the
plurality's conclusion if the question were whether a person under 16 when
he commits a crime can be deprived of the benefit of a rebuttable
presumption that he is not mature and responsible enough to be punished as
an adult. The question posed here, however, is radically different from
both of these. It is whether there is a national consensus that no
criminal so much as one day under 16, after individuated consideration of
his circumstances, including the overcoming of a presumption that he
should not be tried as an adult, can possibly be deemed mature and
responsible enough to be punished with death for any crime. Because there
seems to me no plausible basis for answering this last question in the
affirmative, I respectfully dissent.
|
| [410] |
I
|
| [411] |
I begin by restating the facts since I think that a fuller account of
William Wayne Thompson's participation in the murder, and of his
certification to stand trial as an adult, is
helpful in understanding the case. The evidence at trial left no doubt
that on the night of January 22-23, 1983, Thompson brutally and with
premeditation murdered his former brother-in-law, Charles Keene, the
motive evidently being, at least in part, Keene's physical abuse of
Thompson's sister. As Thompson left his mother's house that evening, in
the company of three older friends, he explained to his girlfriend that
"we're going to kill Charles." Several hours later, early in the morning
of January 23, a neighbor, Malcolm "Possum" Brown, was awakened by the
sound of a gunshot on his front porch. Someone pounded on his front door
shouting: "Possum, open the door, let me in. They're going to kill me."
Brown telephoned the police, and then opened the front door to see a man
on his knees attempting to repel blows with his arms and hands. There were
four other men on the porch. One was holding a gun and stood apart, while
the other three were hitting and kicking the kneeling man, who never
attempted to hit back. One of them was beating the victim with an object
12 to 18 inches in length. The police called back to see if the
disturbance was still going on, and while Brown spoke with them on the
telephone the men took the victim away in a car.
|
| [412] |
Several hours after they had left Thompson's mother's house, Thompson
and his three companions returned. Thompson's girlfriend helped him take
off his boots, and heard him say: "[W]e killed him. I shot him in the head
and cut his throat and threw him in the river." Subsequently, the former
wife of one of Thompson's accomplices heard Thompson tell his mother that
"he killed him. Charles was dead and Vicki didn't have to worry about him
anymore." During the days following the murder Thompson made other
admissions. One witness testified that she asked Thompson the source of
some hair adhering to a pair of boots he was carrying. He replied that was
where he had kicked Charles Keene in the head. Thompson also told her that
he had cut Charles' throat and chest and had shot him in the head. Another
witness
testified that when she told Thompson that a friend had seen Keene dancing
in a local bar, Thompson remarked that that would be hard to do with a
bullet in his head. Ultimately, one of Thompson's co-defendants admitted
that after Keene had been shot twice in the head Thompson had cut Keene
"so the fish could eat his body." Thompson and a co-defendant had then
thrown the body into the Washita River, with a chain and blocks attached
so that it would not be found. On February 18, 1983, the body was
recovered. The Chief Medical Examiner of Oklahoma concluded that the
victim had been beaten, shot twice, and that his throat, chest, and
abdomen had been cut.
|
| [413] |
On February 18, 1983, the State of Oklahoma filed an information and
arrest warrant for Thompson, and on February 22 the State began
proceedings to allow Thompson to be tried as an adult. Under Oklahoma law,
anyone who commits a crime when he is under the age of 18 is defined to be
a child, unless he is 16 or 17 and has committed murder or certain other
specified crimes, in which case he is automatically certified to stand
trial as an adult. Okla. Stat., Tit. 10, §§ 1101, 1104.2 (Supp. 1987). In
addition, under the statute the State invoked in the present case,
juveniles may be certified to stand trial as adults if: (1) the State can
establish the "prosecutive merit" of the case, and (2) the court
certifies, after considering six factors, that there are no reasonable
prospects for rehabilitation of the child within the juvenile system.
Okla. Stat., Tit. 10, § 1112(b) (1981).
|
| [414] |
At a hearing on March 29, 1983, the District Court found probable
cause to believe that the defendant had committed first-degree murder and
thus concluded that the case had prosecutive merit. A second hearing was
therefore held on April 21, 1983, to determine whether Thompson was
amenable to the juvenile system, or whether he should be certified to
stand trial as an adult. A clinical psychologist who had examined Thompson
testified at the second hearing that in her opinion Thompson understood
the difference between right
and wrong but had an antisocial personality that could not be modified by
the juvenile justice system. The psychologist testified that Thompson
believed that because of his age he was beyond any severe penalty of the
law, and accordingly did not believe there would be any severe
repercussions from his behavior. Numerous other witnesses testified about
Thompson's prior abusive behavior. Mary Robinson, an employee of the
Oklahoma juvenile justice system, testified about her contacts with
Thompson during several of his previous arrests, which included arrests
for assault and battery in August 1980; assault and battery in October
1981; attempted burglary in May 1982; assault and battery with a knife in
July 1982; and assault with a deadly weapon in February 1983. She
testified that Thompson had been provided with all the counseling the
State's Department of Human Services had available, and that none of the
counseling or placements seemed to improve his behavior. She recommended
that he be certified to stand trial as an adult. On the basis of the
foregoing testimony, the District Court filed a written order certifying
Thompson to stand trial as an adult. That was appealed and ultimately
affirmed by the Oklahoma Court of Criminal Appeals.
|
| [415] |
Thompson was tried in the District Court of Grady County between
December 4 and December 9, 1983. During the guilt phase of the trial, the
prosecutor introduced three color photographs showing the condition of the
victim's body when it was removed from the river. The jury found Thompson
guilty of first-degree murder. At the sentencing phase of the trial, the
jury agreed with the prosecution on the existence of one aggravating
circumstance, that the murder was "especially heinous, atrocious, or
cruel." As required by our decision in Eddings v. Oklahoma, 455
U.S. 104, 115-117 (1982), the defense was permitted to argue to
the jury the youthfulness of the defendant as a mitigating factor. The
jury recommended that the death penalty be imposed, and the trial judge,
accordingly, sentenced Thompson to death. Thompson
appealed, and his conviction and capital sentence were affirmed. Standing
by its earlier decision in Eddings v. State, 616 P. 2d 1159, 1166-1167
(1980), rev'd on other grounds, 455 U.S. 104 (1982),
the Oklahoma Court of Criminal Appeals held that "once a minor is
certified to stand trial as an adult, he may also, without violating the
Constitution, be punished as an adult." 724 P. 2d 780, 784 (1986). It also
held that admission of two of the three photographs was error in the guilt
phase of the proceeding, because their prejudicial effect outweighed their
probative value; but found that error harmless in light of the
overwhelming evidence of Thompson's guilt. It held that their prejudicial
effect did not outweigh their probative value in the sentencing phase, and
that they were therefore properly admitted, since they demonstrated the
brutality of the crime. Thompson petitioned for certiorari with respect to
both sentencing issues, and we granted review. 479 U.S. 1084 (1987).
|
| [416] |
II
|
| [417] |
A
|
| [418] |
As the foregoing history of this case demonstrates, William Wayne
Thompson is not a juvenile caught up in a legislative scheme that
unthinkingly lumped him together with adults for purposes of determining
that death was an appropriate penalty for him and for his crime. To the
contrary, Oklahoma first gave careful consideration to whether, in light
of his young age, he should be subjected to the normal criminal system at
all. That question having been answered affirmatively, a jury then
considered whether, despite his young age, his maturity and moral
responsibility were sufficiently developed to justify the sentence of
death. In upsetting this particularized judgment on the basis of a
constitutional absolute, the plurality pronounces it to be a fundamental
principle of our society that no one who is as little as one day short of
his 16th birthday can have sufficient maturity and moral responsibility to
be subjected to capital punishment for any crime.
As a sociological and moral conclusion that is implausible; and it is
doubly implausible as an interpretation of the United States
Constitution.
|
| [419] |
The text of the Eighth Amendment, made applicable to the States by the
Fourteenth, prohibits the imposition of "cruel and unusual punishments."
The plurality does not attempt to maintain that this was originally
understood to prohibit capital punishment for crimes committed by persons
under the age of 16; the evidence is unusually clear and unequivocal that
it was not. The age at which juveniles could be subjected to capital
punishment was explicitly addressed in Blackstone's Commentaries on the
Laws of England, published in 1769 and widely accepted at the time the
Eighth Amendment was adopted as an accurate description of the common law.
According to Blackstone, not only was 15 above the age (viz., 7) at which
capital punishment could theoretically be imposed; it was even above the
age (14) up to which there was a rebuttable presumption of incapacity to
commit a capital (or any other) felony. 4 W. Blackstone, Commentaries
*23-* 24. See also M. Hale, Pleas of the Crown *22 (describing the age of
absolute incapacity as 12 and the age of presumptive incapacity as 14);
Kean, The History of the Criminal Liability of Children, 53 L.Q. Rev. 364,
369-370 (1937); 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) (hereinafter Streib, Death
Penalty for Children). The historical practice in this country conformed
with the common-law understanding that 15-year-olds were not categorically
immune from commission of capital crimes. One scholar has documented 22
executions, between 1642 and 1899, for crimes committed under the age of
16. See Streib, Death Penalty for Children 619.
|
| [420] |
Necessarily, therefore, the plurality seeks to rest its holding on the
conclusion that Thompson's punishment as an adult 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) (Warren, C. J.). Ante, at
821. Of course, the risk of assessing evolving standards is that it is all
too easy to believe that evolution has culminated in one's own views. To
avoid this danger we have, when making such an assessment in prior cases,
looked for objective signs of how today's society views a particular
punishment. Furman v. Georgia, 408 U.S. 238, 277-279
(1972) (BRENNAN, J., concurring). See also Woodson v. North Carolina, 428 U.S. 280, 293 (1976) (plurality opinion)
(Stewart, Powell, and STEVENS, JJ.); Coker v. Georgia, 433
U.S. 584, 593-597 (1977); Enmund v. Florida, 458 U.S.
782, 788-789 (1982). The most reliable objective signs consist
of the legislation that the society has enacted. It will rarely if ever be
the case that the Members of this Court will have a better sense of the
evolution in views of the American people than do their elected
representatives.
|
| [421] |
It is thus significant that, only four years ago, in the Comprehensive
Crime Control Act of 1984, Pub. L. 98-473, 98 Stat. 2149, Congress
expressly addressed the effect of youth upon the imposition of criminal
punishment, and changed the law in precisely the opposite direction from
that which the plurality's perceived evolution in social attitudes would
suggest: It lowered from 16 to 15 the age at which a juvenile's case can,
"in the interest of justice," be transferred from juvenile court to
Federal District Court, enabling him to be tried and punished as an adult.
18 U. S. C. § 5032 (1982 ed., Supp. IV). This legislation was passed in
light of Justice Department testimony that many juvenile delinquents were
"cynical, street-wise, repeat offenders, indistinguishable, except for
their age, from their adult criminal counterparts," Hearings on S. 829
before the Subcommittee on Criminal Law of the Senate Committee on the
Judiciary, 98th Cong., 1st Sess., 551 (1983), and that in 1979 alone
juveniles under the age of 15, i. e., almost a year younger than Thompson,
had committed a total of 206 homicides nationwide, more than ,000
forcible rapes, 10,000 robberies, and 10,000 aggravated assaults. Id., at
554. Since there are federal death penalty statutes*fn1 which have not been determined to be
unconstitutional, adoption of this new legislation could at least
theoretically result in the imposition of the death penalty upon a
15-year-old. There is, to be sure, no reason to believe that the Members
of Congress had the death penalty specifically in mind; but that does not
alter the reality of what federal law now on its face permits. Moreover,
if it is appropriate to go behind the face of the statutes to the
subjective intentions of those who enacted them, it would be strange to
find the consensus regarding criminal liability of juveniles to be moving
in the direction the plurality perceives for capital punishment, while
moving in precisely the opposite direction for all other penalties.*fn2 Turning
to legislation at the state level, one observes the same trend of lowering
rather than raising the age of juvenile criminal liability.*fn3 As for the state status quo with respect
to the death penalty in particular: The plurality chooses to "confine
[its] attention" to the fact that all 18 of the States that establish a
minimum age for capital punishment have chosen at least 16. Ante, at 829.
But it is beyond me why an accurate analysis would not include within the
computation the
larger number of States (19) that have determined that no minimum age for
capital punishment is appropriate, leaving that to be governed by their
general rules for the age at which juveniles can be criminally
responsible. A survey of state laws shows, in other words, that a majority
of the States for which the issue exists (the rest do not have capital
punishment) are of the view that death is not different insofar as the age
of juvenile criminal responsibility is concerned. And the latter age,
while presumed to be 16 in all the States, see ante, at 824, can, in
virtually all the States, be less than 16 when individuated consideration
of the particular case warrants it. Thus, what Oklahoma has done here is
precisely what the majority of capital-punishment States would
do.
|
| [422] |
When the Federal Government, and almost 40% of the States, including a
majority of the States that include capital punishment as a permissible
sanction, allow for the imposition of the death penalty on any juvenile
who has been tried as an adult, which category can include juveniles under
16 at the time of the offense, it is obviously impossible for the
plurality to rely upon any evolved societal consensus discernible in
legislation -- or at least discernible in the legislation of this society,
which is assuredly all that is relevant.*fn4 Thus, the plurality
falls back upon what it promises will be an examination of "the behavior
of juries." Ante, at 831. It turns out not to be that, perhaps because of
the inconvenient fact that no fewer than five murderers who committed
their crimes under the age of 16 were sentenced to death, in five
different States, between the years 1984 and 1986. V. Streib, Death
Penalty for Juveniles 168-169 (1987). Instead, the plurality examines the
statistics on capital executions, which are of course substantially lower
than those for capital sentences because of various factors, most notably
the exercise of executive clemency. See Streib, Death Penalty for Children
619. Those statistics show, unsurprisingly, that capital punishment for
persons who committed crimes under the age of 16 is rare. We are not
discussing whether the Constitution requires such procedures as will
continue to cause it to be rare, but whether the Constitution prohibits it
entirely. The plurality takes it to be persuasive evidence that social
attitudes have changed to embrace such a prohibition -- changed so clearly
and permanently as to be irrevocably enshrined in the Constitution -- that
in this century all of the 18 to 20 executions of persons below 16 when
they committed crimes occurred before 1948.
|
| [423] |
Even assuming that the execution rather than the sentencing statistics
are the pertinent data, and further assuming that a 4-decade trend is
adequate to justify calling a constitutional halt to what may well be a
pendulum swing in social attitudes, the statistics are frail support for
the existence of the relevant trend. There are many reasons that
adequately account for the drop in excecutions other than the premise of
general agreement that no 15-year-old murderer should ever be executed.
Foremost among them, of course, was a reduction in
public support for capital punishment in general. Of the 14 States
(including the District of Columbia) that currently have no death penalty
statute, 11 have acquired that status since 1950. V. Streib, Death Penalty
for Juveniles 42, Table 3-1. That reduction in willingness to impose
capital punishment (which may reasonably be presumed to have been felt
even in those States that did not entirely abolish it), combined with the
modern trend, constitutionalized in Lockett v. Ohio, 438 U.S.
586 (1978), towards individualized sentencing determinations
rather than automatic death sentences for certain crimes, reduced the
total number of executions nationwide from an average of 1,272 per decade
in the first half of the century to 254 per decade since then. See V.
Streib, Death Penalty for Juveniles 56, Table 4-1. A society less ready to
impose the death penalty, and entirely unwilling to impose it without
individualized consideration, will of course pronounce death for a crime
committed by a person under 16 very rarely. There is absolutely no basis,
however, for attributing that phenomenon to a modern consensus that such
an execution should never occur -- any more than it would have been
accurate to discern such a consensus in 1927 when, despite a level of
total executions almost five times higher than that of the post-1950
period, there had been no execution for crime committed by juveniles under
the age of 16 for almost 17 years. That that did not reflect a new
societal absolute was demonstrated by the fact that in approximately the
next 17 years there were 10 such executions. Id., at
191-208.
|
| [424] |
In sum, the statistics of executions demonstrate nothing except the
fact that our society has always agreed that executions of 15-year-old
criminals should be rare, and in more modern times has agreed that they
(like all other executions) should be even rarer still. There is no
rational basis for discerning in that a societal judgment that no one so
much as a day under 16 can ever be mature and morally responsible enough
to deserve that penalty; and there is no justification except
our own predeliction for converting a statistical rarity of occurrence
into an absolute constitutional ban. One must surely fear that, now that
the Court has taken the first step of requiring individualized
consideration in capital cases, today's decision begins a second stage of
converting into constitutional rules the general results of that
individuation. One could readily run the same statistical argument with
respect to other classes of defendants. Between 1930 and 1955, for
example, 30 women were executed in the United States. Only three were
executed between then and 1986 -- and none in the 22-year period between
1962 and 1984. Proportionately, the drop is as impressive as that which
the plurality points to in 15-year-old executions. (From 30 in 25 years to
3 in the next 31 years, versus from 18 in 50 years to potentially 1 -- the
present defendant -- in the next 40 years.) Surely the conclusion is not
that it is unconstitutional to impose capital punishment upon a woman.*fn5
|
| [425] |
If one believes that the data the plurality relies upon are effective
to establish, with the requisite degree of certainty, a constitutional
consensus in this society that no person can ever
be executed for a crime committed under the age of 16, it is difficult to
see why the same judgment should not extend to crimes committed under the
age of 17, or of 18. The frequency of such executions shows an almost
equivalent drop in recent years, id., at 191-208; and of the 18 States
that have enacted age limits upon capital punishment, only 3 have selected
the age of 16, only 4 the age of 17, and all the rest the age of 18, ante,
at 829, n. 29. It seems plain to me, in other words, that there is no
clear line here, which suggests that the plurality is inappropriately
acting in a legislative rather than a judicial capacity. Doubtless at some
age a line does exist -- as it has always existed in the common law, see
supra, at 864 -- below which a juvenile can never be considered fully
responsible for murder. The evidence that the views of our society, so
steadfast and so uniform that they have become part of the agreed-upon
laws that we live by, regard that absolute age to be 16 is
nonexistent.
|
| [426] |
B
|
| [427] |
Having avoided any attempt to justify its holding on the basis of the
original understanding of what was "cruel and unusual punishment," and
having utterly failed in justifying its holding on the basis of "evolving
standards of decency" evidenced by "the work product of state legislatures
and sentencing juries," ante, at 822, the plurality proceeds, in Part V of
the opinion, to set forth its views regarding the desirability of ever
imposing capital punishment for a murder committed by a 15-year-old. That
discussion begins with the recitation of propositions upon which there is
"broad agreement" within our society, namely, that "punishment should be
directly related to the personal culpability of the criminal defendant,"
and that "adolescents as a class are less mature and responsible than
adults." Ante, at 834. It soon proceeds, however, to the conclusion that
"[g]iven the lesser culpability of the juvenile offender, the teenager's
capacity for growth, and society's fiduciary obligations to its children,"
none of the rationales
for the death penalty can apply to the execution of a 15-year-old
criminal, so that it is "'nothing more than the purposeless and needless
imposition of pain and suffering.'" Ante, at 838, quoting Coker v.
Georgia, 433 U.S., at 592. On this, as we have seen,
there is assuredly not general agreement. Nonetheless, the plurality would
make it one of the fundamental laws governing our society solely because
it has an "'abiding conviction'" that it is so, ante, at 833, n. 40,
quoting Coker v. Georgia, supra, at
598.
|
| [428] |
This is in accord with the proposition set out at the beginning of the
plurality's discussion in Part V, that "'[a]lthough 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.'" Ante, at 833, quoting Enmund v. Florida, 458 U.S., at 797. I reject that proposition in the
sense intended here. It is assuredly "for us ultimately to judge" what the
Eighth Amendment permits, but that means it is for us to judge whether
certain punishments are forbidden because, despite what the current
society thinks, they were forbidden under the original understanding of
"cruel and unusual," cf. Brown v. Board of Education, 347 U.S.
483 (1954); or because they come within current understanding
of what is "cruel and unusual," because of the "evolving standards of
decency" of our national society ; but not because they are out of accord
with the perceptions of decency, or of penology, or of mercy, entertained
-- or strongly entertained, or even held as an "abiding conviction" -- by
a majority of the small and unrepresentative segment of our society that
sits on this Court. On its face, the phrase "cruel and unusual
punishments" limits the evolving standards appropriate for our
consideration to those entertained by the society rather than those
dictated by our personal consciences.
|
| [429] |
Because I think the views of this Court on the policy questions
discussed in Part V of the plurality opinion to be irrelevant, I make no
attempt to refute them. It suffices to say that
there is another point of view, suggested in the following passage written
by our esteemed former colleague Justice Powell, whose views the plurality
several times invokes for support, ante, at 823-825, 834:
|
| [430] |
"Minors who become embroiled with the law range from the very young up
to those on the brink of majority. Some of the older minors become fully
'street-wise,' hardened criminals, deserving no greater consideration than
that properly accorded all persons suspected of crime." Fare v. Michael
C., 442 U.S. 707, 734, n. 4 (1979) (dissenting
opinion).
|
| [431] |
The view that it is possible for a 15-year-old to come within this
category uncontestably prevailed when the Eighth and Fourteenth Amendments
were adopted, and, judging from the actions of the society's
democratically elected representatives, still persuades a substantial
segment of the people whose "evolving standards of decency" we have been
appointed to discern rather than decree. It is not necessary, as the
plurality's opinion suggests, that "we [be] persuaded," ante, at 838, of
the correctness of the people's views.
|
| [432] |
III
|
| [433] |
If I understand JUSTICE O'CONNOR's separate concurrence correctly, it
agrees (1) that we have no constitutional authority to set aside this
death penalty unless we can find it contrary to a firm national consensus
that persons younger than 16 at the time of their crime cannot be
executed, and (2) that we cannot make such a finding. It does not,
however, reach the seemingly inevitable conclusion that (3) we therefore
have no constitutional authority to set aside this death penalty. Rather,
it proceeds (in Part II) to state that since (a) we have treated the death
penalty "differently from all other punishments," ante, at 856, imposing
special procedural and substantive protections not required in other
contexts, and (b) although we cannot actually find any national consensus
forbidding execution for crimes committed under 16, there may
perhaps be such a consensus, therefore (c) the Oklahoma statutes plainly
authorizing the present execution by treating 15-year-old felons (after
individuated findings) as adults, and authorizing execution of adults, are
not adequate, and what is needed is a statute explicitly stating that
"15-year-olds can be guilty of capital crimes."
|
| [434] |
First, of course, I do not agree with (b) -- that there is any doubt
about the nonexistence of a national consensus. The concurrence produces
the doubt only by arbitrarily refusing to believe that what the laws of
the Federal Government and 19 States clearly provide for represents a
"considered judgment." Ante, at 852. Second, I do not see how (c) follows
from (b) -- how the problem of doubt about whether what the Oklahoma laws
permit is contrary to a firm national consensus and therefore
unconstitutional is solved by making absolutely sure that the citizens of
Oklahoma really want to take this unconstitutional action. And finally, I
do not see how the procedural and substantive protections referred to in
(a) provide any precedent for what is done in (c). Those special
protections for capital cases, such as the prohibition of unguided
discretion, Gregg v. Georgia, 428 U.S. 153, 176-196
(1976) (joint opinion) (Stewart, Powell, and STEVENS, JJ.) and the
prohibition of automatic death sentences for certain crimes, Woodson v.
North Carolina, 428 U.S., at 289-301 (plurality
opinion) (Stewart, Powell, and STEVENS, JJ.), were not drawn from a hat,
but were thought to be (once again) what a national consensus required. I
am unaware of any national consensus, and the concurrence does not suggest
the existence of any, that the death penalty for felons under 16 can only
be imposed by a single statute that explicitly addresses that subject.
Thus, part (c) of the concurrence's argument, its conclusion, could be
replaced with almost anything. There is no more basis for imposing the
particular procedural protection it announces than there is for imposing a
requirement that the death penalty for felons under 16 be adopted by a
two-thirds vote of each house of the state
legislature, or by referendum, or by bills printed in 10-point type. I am
also left in some doubt whether this new requirement will be lifted (since
its supposed rationale would disappear) when enough States have complied
with it to render the nonexistence of a national consensus against such
executions no longer doubtful; or only when enough States have done so to
demonstrate that there is a national consensus in favor of such
executions; or never.
|
| [435] |
It could not possibly be the concurrence's concern that this death
sentence is a fluke -- a punishment not really contemplated by Oklahoma
law but produced as an accidental result of its interlocking statutes
governing capital punishment and the age for treating juveniles as adults.
The statutes, and their consequences, are quite clear. The present case,
moreover, is of such prominence that it has received extensive coverage
not only in the Oklahoma press but nationally. It would not even have been
necessary for the Oklahoma Legislature to act in order to remedy the
miscarriage of its intent, if that is what this sentence was. The Governor
of Oklahoma, who can certainly recognize a frustration of the will of the
citizens of Oklahoma more readily than we, would certainly have used his
pardon power if there was some mistake here. What the concurrence proposes
is obviously designed to nullify rather than effectuate the will of the
people of Oklahoma, even though the concurrence cannot find that will to
be unconstitutional.
|
| [436] |
What the concurrence proposes is also designed, of course, to make it
more difficult for all States to enact legislation resulting in capital
punishment for murderers under 16 when they committed their crimes. It is
difficult to pass a law saying explicitly "15-year-olds can be executed,"
just as it would be difficult to pass a law saying explicitly "blind
people can be executed," or "white-haired grandmothers can be executed,"
or "mothers of two-year-olds can be executed." But I know of no authority
whatever for our specifying the precise form that state legislation must
take, as opposed to its constitutionally required
content. We have in the past studiously avoided that sort of interference
in the States' legislative processes, the heart of their sovereignty.
Placing restraints upon the manner in which the States make their laws, in
order to give 15-year-old criminals special protection against capital
punishment, may well be a good idea, as perhaps is the abolition of
capital punishment entirely. It is not, however, an idea it is ours to
impose. Thus, while the concurrence purports to be adopting an approach
more respectful of States' rights than the plurality, in principle it
seems to me much more disdainful. It says to those jurisdictions that have
laws like Oklahoma's: We cannot really say that what you are doing is
contrary to national consensus and therefore unconstitutional, but since
we are not entirely sure you must in the future legislate in the manner
that we say.
|
| [437] |
In my view the concurrence also does not fulfill its promise of
arriving at a more "narrow conclusion" than the plurality, and avoiding an
"unnecessarily broad" constitutional holding. Ante, at 858. To the
contrary, I think it hoists on to the deck of our Eighth Amendment
jurisprudence the loose cannon of a brand new principle. If the
concurrence's view were adopted, henceforth a finding of national
consensus would no longer be required to invalidate state action in the
area of capital punishment. All that would be needed is uncertainty
regarding the existence of a national consensus, whereupon various
protective requirements could be imposed, even to the point of specifying
the process of legislation. If 15-year-olds must be explicitly named in
capital statutes, why not those of extremely low intelligence, or those
over 75, or any number of other appealing groups as to which the existence
of a national consensus regarding capital punishment may be in doubt for
the same reason the concurrence finds it in doubt here, viz., because they
are not specifically named in the capital statutes? Moreover, the motto
that "death is different" would no longer mean that the firm view of our
society demands that it be treated differently in certain identifiable
respects, but
rather that this Court can attach to it whatever limitations seem
appropriate. I reject that approach, and would prefer to it even the
misdescription of what constitutes a national consensus favored by the
plurality. The concurrence's approach is a Solomonic solution to the
problem of how to prevent execution in the present case while at the same
time not holding that the execution of those under 16 when they commit
murder is categorically unconstitutional. Solomon, however, was not
subject to the constitutional constraints of the judicial department of a
national government in a federal, democratic system.
|
| [438] |
IV
|
| [439] |
Since I find Thompson's age inadequate grounds for vacating his
sentence, I must reach the question whether the Constitution was violated
by permitting the jury to consider in the sentencing stage the color
photographs of Charles Keene's body. Thompson contends that this rendered
his sentencing proceeding so unfair as to deny him due process of
law.
|
| [440] |
The photographs in question, showing gunshot wounds in the head and
chest, and knife slashes in the throat, chest and abdomen, were certainly
probative of the aggravating circumstance that the crime was "especially
heinous, atrocious, or cruel." The only issue, therefore, is whether they
were unduly inflammatory. We have never before held that the excessively
inflammatory character of concededly relevant evidence can form the basis
for a constitutional attack, and I would decline to do so in this case. If
there is a point at which inflammatoriness so plainly exceeds evidentiary
worth as to violate the federal Constitution, it has not been reached
here. The balancing of relevance and prejudice is generally a state
evidentiary issue, which we do not sit to review. Lisenba v. California, 314 U.S. 219, 227-228 (1941).
|
| [441] |
For the foregoing reasons, I respectfully dissent from the judgment of
the Court.
|
| [442] |
Counsel FOOTNOTES
|
| [443] |
* Briefs of amici curiae urging reversal were filed for the Child
Welfare League of America et al. by Randy Hertz and Martin Guggenheim; and
for the International Human Rights Law Group by Robert H.
Kapp.
|
| [444] |
A brief of amicus curiae urging affirmance was filed for Kentucky et
al. by David L. Armstrong, Attorney General of Kentucky, and David A.
Smith and Virgil W. Webb III, Assistant Attorneys General, and by the
Attorneys General for their respective States as follows: Don Siegelman of
Alabama, Robert K. Corbin of Arizona, John Steven Clark of Arkansas, John
J. Kelly of Connecticut, Charles M. Oberly of Delaware, Robert Butterworth
of Florida, Jim Jones of Idaho, Robert T. Stephan of Kansas, Edwin L.
Pittman of Mississippi, William L. Webster of Missouri, Mike Greely of
Montana, Brian McKay of Nevada, Hal Stratton of New Mexico, Lacy H.
Thornburg of North Carolina, LeRoy S. Zimmerman of Pennsylvania, Travis
Medlock of South Carolina, David L. Wilkinson of Utah, Mary Sue Terry of
Virginia, and Joseph B. Meyer of Wyoming.
|
| [445] |
Briefs of amici curiae were filed for the American Bar Association by
Eugene C. Thomas, Andrew J. Shookhoff, and Steven H. Goldblatt; 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, Joan F. Hartman, Mary E. McClymont, and John
E. Osborn; for Defense for Children International-USA by Anna Mamalakis
Pappas; for the National Legal Aid and Defender Association et al. by
James E. Coleman, Jr., and Michael A. Mello; and for the Office of the
State Appellate Defender of Illinois by Theodore Gottfried.
|
| |
|
| |
Opinion Footnotes
|
| |
|
| [446] |
*fn1 The Eighth Amendment provides:
"Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted." This proscription must be
observed by the States as well as the Federal Government. See, e. g.,
Robinson v. California, 370 U.S. 660
(1962).
|
| [447] |
*fn2 Oklahoma Stat., Tit. 10, § 1101(1) (Supp.
1987) provides:
"'Child' means any person under eighteen (18) years of age, except for
any person sixteen (16) or seventeen (17) years of age who is charged with
murder, kidnapping for purposes of extortion, robbery with a dangerous
weapon, rape in the first degree, use of a firearm or other offensive
weapon while committing a felony, arson in the first degree, burglary with
explosives, shooting with intent to kill, manslaughter in the first
degree, or nonconsensual sodomy."
|
| [448] |
*fn3 "The other two color photographs . . . were
gruesome. Admitting them into evidence served no purpose other than to
inflame the jury. We do not understand why an experienced prosecutor would
risk reversal of the whole case by introducing such ghastly, color
photographs with so little probative value. We fail to see how they could
possibly assist the jury in the determination of defendant's guilt. The
trial court's admission of these two photographs was error." 724 P. 2d
780, 782-783 (1986).
|
| [449] |
*fn4 That Eighth Amendment jurisprudence must
reflect "evolving standards of decency" was settled early this century in
the case of Weems v. United States, 217 U.S. 349
(1910). The Court held that a sentence of 15 years of hard, enchained
labor, plus deprivation of various civil rights and perpetual state
surveillance, constituted "cruel and unusual punishment" under the Bill of
Rights of the Philippines (then under United States control). Premising
its opinion on the synonymity of the Philippine and United States "cruel
and unusual punishments" clauses, the Court wrote:
"Time works changes, brings into existence new conditions and purposes.
Therefore a principle to be vital must be capable of wider application
than the mischief which gives it birth. "The [cruel and unusual
punishments clause] in the opinion of the learned commentators may be
therefore progressive, and is not fastened to the obsolete but may acquire
meaning as public opinion becomes enlightened by a humane justice." Id.,
at 373-374, 378. See also Ollman v. Evans, 242 U.S. App. D.C. 301,
326-327, 750 F.2d 970, 995-996 (1984) (en banc)
(Bork, J., concurring): "Judges given stewardship of a constitutional
provision . . . whose core is known but whose outer reach and contours are
ill-defined, face the never-ending task of discerning the meaning of the
provision from one case to the next. There would be little need for judges
-- and certainly no office for a philosophy of judging -- if the
boundaries of every constitutional provision were self-evident. They are
not. . . . [I]t is the task of the judge in this generation to discern how
the framers' values, defined in the context of the world they knew, apply
to the world we know. The world changes in which unchanging values find
their application. . . . "We must never hesitate to apply old values to
new circumstances . . . . The important thing, the ultimate consideration,
is the constitutional freedom that is given into our keeping. A judge who
refuses to see new threats to an established constitutional value, and
hence provides a crabbed interpretation that robs a provision of its full,
fair and reasonable meaning, fails in his judicial
duty."
|
| [450] |
*fn5 See, e. g., Woodson v. North Carolina, 428 U.S. 280, 293 (1976) (plurality opinion)
(Stewart, Powell, and STEVENS, JJ.); Coker v. Georgia, 433
U.S. 584, 593-597 (1977) (plurality opinion) (WHITE, J.);
Enmund v. Florida, 458 U.S. 782, 789-796 (1982); id.,
at 814 (legislative and jury statistics important in Eighth Amendment
adjudication) (O'CONNOR, J., dissenting).
|
| [451] |
*fn6 See Furman v. Georgia, 408 U.S.
238, 277-279 (1972) (Court must look to objective signs of how
today's society views a particular punishment) (BRENNAN, J., concurring);
Enmund v. Florida, 458 U.S., at
789-793.
|
| [452] |
*fn7 Our capital punishment jurisprudence has
consistently recognized that contemporary standards, as reflected by the
actions of legislatures and juries, provide an important measure of
whether the death penalty is "cruel and unusual." Part of the rationale
for this index of constitutional value lies in the very language of the
construed clause: whether an action is "unusual" depends, in common usage,
upon the frequency of its occurrence or the magnitude of its acceptance.
The focus on the acceptability and regularity of the death penalty's
imposition in certain kinds of cases -- that is, whether imposing the
sanction in such cases comports with contemporary standards of decency as
reflected by legislative enactments and jury sentences -- is connected to
the insistence that statutes permitting its imposition channel the
sentencing process toward non-arbitrary results. For both a statutory
scheme that fails to guide jury discretion in a meaningful way, and a
pattern of legislative enactments or jury sentences revealing a lack of
interest on the part of the public in sentencing certain people to death,
indicate that contemporary morality is not really ready to permit the
regular imposition of the harshest of sanctions in such
cases.
|
| [453] |
*fn8 Thus, in explaining our conclusion that the
death penalty may not be imposed for the crime of raping an adult woman,
JUSTICE WHITE stated:
"[T]he Constitution contemplates that in the end our own judgment will
be brought to bear on the question of the acceptability of the death
penalty under the Eighth Amendment." Coker v. Georgia, 433
U.S., at 597.
|
| [454] |
*fn9 See also New Jersey v. T. L. O.,
469 U.S. 325, 350, n. 2 (1985) (Powell, J.,
concurring); Burger v. Kemp, 483 U.S. 776 (1987)
(Powell, J., dissenting).
|
| [455] |
*fn10 Okla. Const., Art. 3, § 1.
|
| [456] |
*fn11 Okla. Stat., Tit. 38, § 28 (1981), and
Okla. Const., Art. 3, § 1.
|
| [457] |
*fn12 Okla. Stat., Tit. 43, § 3
(1981).
|
| [458] |
*fn13 Okla. Stat., Tit. 21, § 1215
(1981).
|
| [459] |
*fn14 Okla. Stat., Tit. 21, § 1241 (Supp.
1987). Additionally, minors may not patronize bingo parlors or pool halls
unless accompanied by an adult, Okla. Stat., Tit. 21, §§ 995.13, 1103
(1981), pawn property, Okla. Stat., Tit. 59, § 1511(C)(1) (1981), consent
to services by health professionals for most medical care, unless married
or otherwise emancipated, Okla. Stat., Tit. 63, § 2602 (1981), § 2601(a)
(Supp. 1987), or operate or work at a shooting gallery, Okla. Stat., Tit.
63, § 703 (1984), and may disaffirm any contract, except for
"necessaries," Okla. Stat., Tit. 15, §§ 19, 20 (1981).
|
| [460] |
*fn15 See n. 2, supra ; cf. Craig v. Boren, 429 U.S. 190, 197 (1976).
|
| [461] |
*fn16 Henceforth, the opinion will refer to the
50 States and the District of Columbia as "States," for sake of
simplicity.
|
| [462] |
*fn17 See Appendices A and B,
infra.
|
| [463] |
*fn18 See Appendix C, infra.
|
| [464] |
*fn19 See Appendix D, infra.
|
| [465] |
*fn20 See Appendix E, infra.
|
| [466] |
*fn21 See Appendix F, infra.
|
| [467] |
*fn22 S. Davis, Rights of Juveniles: The
Juvenile Justice System, Appendix B (1987). Thus, every State has adopted
"a rebuttable presumption" that a person under 16 "is not mature and
responsible enough to be punished as an adult," no matter how minor the
offense may be. Post, at 859 (dissenting opinion).
|
| [468] |
*fn23 The law must often adjust the manner in
which it affords rights to those whose status renders them unable to
exercise choice freely and rationally. Children, the insane, and those who
are irreversibly ill with loss of brain function, for instance, all retain
"rights," to be sure, but often such rights are only meaningful as they
are exercised by agents acting with the best interests of their principals
in mind. See Garvey, Freedom and Choice in Constitutional Law, 94 Harv. L.
Rev. 1756 (1981). It is in this way that paternalism bears a beneficent
face, paternalism in the sense of a caring, nurturing parent making
decisions on behalf of a child who is not quite ready to take on the fully
rational and considered task of shaping his or her own life. The
assemblage of statutes in the text above, from both Oklahoma and other
States, reflects this basic assumption that our society makes about
children as a class; we assume that they do not yet act as adults do, and
thus we act in their interest by restricting certain choices that we feel
they are not yet ready to make with full benefit of the costs and benefits
attending such decisions. It would be ironic if these assumptions that we
so readily make about children as a class -- about their inherent
difference from adults in their capacity as agents, as choosers, as
shapers of their own lives -- were suddenly unavailable in determining
whether it is cruel and unusual to treat children the same as adults for
purposes of inflicting capital punishment. Thus, informing the judgment of
the Court today is the virtue of consistency, for the very assumptions we
make about our children when we legislate on their behalf tells us that it
is likely cruel, and certainly unusual, to impose on a child a punishment
that takes as its predicate the existence of a fully rational, choosing
agent, who may be deterred by the harshest of sanctions and toward whom
society may legitimately take a retributive stance. As we have observed:
"Children, by definition, are not assumed to have the capacity to take
care of themselves. They are assumed to be subject to the control of their
parents, and if parental control falters, the State must play its part as
parens patriae." Schall v. Martin, 467 U.S. 253, 265
(1984); see also May v. Anderson, 345 U.S. 528, 536
(1953) (Frankfurter, J., concurring) ("Children have a very special place
in life which law should reflect. Legal theories . . . lead to fallacious
reasoning if uncritically transferred to determination of a State's duty
towards children"); Ginsberg v. New York, 390 U.S. 629, 649-650 (1968) (Stewart, J., concurring in result) ("[A]t
least in some precisely delineated areas, a child . . . is not possessed
of that full capacity for individual choice which is the presupposition of
First Amendment guarantees. It is only upon such a premise . . . that a
State may deprive children of other rights -- the right to marry, for
example, or the right to vote -- deprivations that would be
constitutionally intolerable for adults"); Parham v. J. R., 442
U.S. 584, 603 (1979) ("Most children, even in adolescence,
simply are not able to make sound judgments concerning many
decisions").
|
| [469] |
*fn24 Almost every State, and the Federal
Government, has set a minimum age at which juveniles accused of committing
serious crimes can be waived from juvenile court into criminal court. See
Davis, supra, n. 22; 18 U. S. C. § 5032 (1982 ed., Supp IV). The dissent's
focus on the presence of these waiver ages in jurisdictions that retain
the death penalty but that have not expressly set a minimum age for the
death sentence, see post, at 867-868, distorts what is truly at issue in
this case. Consider the following example: The States of Michigan, Oregon,
and Virginia have all determined that a 15-year-old may be waived from
juvenile to criminal court when charged with first-degree murder. See
Mich. Comp. Laws § 712A.4(1) (1979); Ore. Rev. Stat. §§ 419.533(1)(a),
(1)(b), (3) (1987); Va. Code § 16.1-269(A) (1988). However, in Michigan,
that 15-year-old may not be executed -- because the State has abolished
the death penalty -- and, in Oregon, that 15-year-old may not be executed
-- because the State has expressly set a minimum age of 18 for executions
-- but, in Virginia, that 15-year-old may be executed -- because the State
has a death penalty and has not expressly addressed the issue of minimum
age for execution. That these three States have all set a 15-year-old
waiver floor for first-degree murder tells us that the States consider
15-year-olds to be old enough to be tried in criminal court for serious
crimes (or too old to be dealt with effectively in juvenile court), but
tells us nothing about the judgment these States have made regarding the
appropriate punishment for such youthful offenders. As a matter of fact,
many States in the Union have waiver ages below 16, including many of the
States that have either abolished the death penalty or that have set an
express minimum age for the death penalty at 16 or higher. See Davis,
supra, n. 22. In sum, we believe that the more appropriate measures for
determining how the States view the issue of minimum age for the death
penalty are those discussed in the text and in n. 29, infra.
|
| [470] |
*fn25 Alaska (Territory of Alaska, Session
Laws, 1957, ch. 132, 23d Sess., an Act abolishing the death penalty for
the commission of any crime; see Alaska Stat. Ann. § 12.55.015 (1987),
"Authorized sentences" do not include the death penalty; § 12.55.125,
"Sentences of imprisonment for felonies" do not include the death
penalty); District of Columbia (United States v. Lee, 160 U.S. App. D.C.
118, 122-123, 489 F.2d 1242, 1246-1247 (1973), death
penalty unconstitutional in light of Furman v. Georgia, 408 U.S.
238 (1972); see D.C. Code § 22-2404 (1981), penalty for
first-degree murder does not include death); Hawaii (Territory of Hawaii,
Regular Session Laws, 1957, Act 282, 28th Leg., an Act relating to the
abolishment of capital punishment; see Hawaii Rev. Stat., § 706-656 (Supp.
1987), sentence for offense of murder does not include death penalty);
Iowa (1965 Iowa Acts, ch. 435, Death Penalty Abolished; see Iowa Code §
902.1 (1987), penalties for Class A felonies do not include death); Kansas
(State v. Randol, 212 Kan. 461, 471, 513 P. 2d 248, 256 (1973), death
penalty unconstitutional after Furman v. Georgia, supra ; death penalty
still on books, Kan. Stat. Ann. §§ 22-4001 -- 22-4014 (1981); but see §
21-3401, first-degree murder is a Class A felony, and § 21-4501(a),
sentence for a Class A felony does not include death penalty); Maine (1887
Maine Acts, ch. 133, an Act to abolish the death penalty; see Me. Rev.
Stat. Ann., Tit. 17-A, §§ 1251, 1152 (1983 and Supp. 1987-1988),
authorized sentences for murder do not include death penalty);
Massachusetts (Commonwealth v. Colon-Cruz, 393 Mass. 150, 470 N. E. 2d 116
(1984), death penalty statute violates State Constitution; death penalty
law still on books, Mass. Gen. Laws §§ 279:57 -- 279:71 (1986); Michigan
(Const., Art. 4, § 46, "No law shall be enacted providing for the penalty
of death"; see Mich. Comp. Laws § 750.316 (Supp. 1988-1989), no death
penalty provided for first-degree murder); Minnesota (1911 Minn. Laws, ch.
387, providing for life imprisonment and not death as sentence; see Minn.
Stat. § 609.10 (1986), sentences available do not include death penalty,
and § 609.185, sentence for first-degree murder is life imprisonment); New
York (People v. Smith, 63 N. Y. 2d 41, 70-79, 468 N. E. 2d 879, 893-899
(1984), mandatory death penalty for first-degree murder while serving a
sentence of life imprisonment unconstitutional after Woodson v. North
Carolina, 428 U.S. 280 (1976), thus invalidating
remainder of New York's death penalty statute; death penalty still on
books, N. Y. Penal Law § 60.06 (McKinney 1987), providing for death
penalty for first-degree murder); North Dakota (N. D. Cent. Code, ch.
12-50 (1985), "The Death Sentence and Execution Thereof," repealed by 1973
N. D. Laws, ch. 116, § 41, effective July 1, 1975); Rhode Island (State v.
Cline, 121 R. I. 299, 397 A. 2d 1309 (1979), mandatory death penalty for
any prisoner unconstitutional after Woodson v. North Carolina, supra ; see
R. I. Gen. Laws § 11-23-2 (Supp. 1987), penalties for murder do not
include death); West Virginia (W. Va. Code § 61-11-2 (1984), "Capital
punishment abolished"); Wisconsin (1853 Wis. Laws, ch. 103, "An act to
provide for the punishment of murder in the first degree, and to abolish
the penalty of death"; see Wis. Stat. §§ 939.50(3)(a), 940.01 (1985-1986),
first-degree murder is a Class A felony, and the penalty for such felonies
is life imprisonment).
|
| [471] |
*fn26 Alabama (see Ala. Code §§ 13A-5-39 --
13A-5-59, 13A-6-2 (1982 and Supp. 1987)); Arizona (see Ariz. Rev. Stat.
Ann. §§ 13-703 -- 13-706, 13-1105 (1978 and Supp. 1987)); Arkansas (see
Ark. Code Ann. §§ 5-4-104(b), 5-4-601 -- 5-4-617, 5-10-101, 5-51-201 (1987
and Supp. 1987)); Delaware (see Del. Code Ann., Tit. 11, §§ 636, 4209
(1987)); Florida (see Fla. Stat. §§ 775.082, 782.04(1), 921.141 (1987));
Idaho (see Idaho Code §§ 18-4001 -- 18-4004, 19-2515 (1987)); Louisiana
(see La. Rev. Stat. Ann. §§ 14:30(C), 14:113 (West 1986); La. Code Crim.
Proc. Ann., Art. 905 et seq. (West 1984 and Supp. 1988)); Mississippi (see
Miss. Code Ann. §§ 97-3-21, 97-7-67, 99-19-101 -- 99-19-107 (Supp. 1987));
Missouri (see Mo. Rev. Stat. §§ 565.020, 565.030-565.040 (1986)); Montana
(see Mont. Code Ann. §§ 45-5-102, 46-18-301 -- 46-18-310 (1987)); Oklahoma
(see Okla. Stat., Tit. 21, §§ 701.10 -- 701.15 (1981 and Supp. 1987));
Pennsylvania (see Pa. Cons. Stat., Tit. 18, § 1102(a), Tit. 42, § 9711
(1982 and Supp. 1987)); South Carolina (see S. C. Code §§ 16-3-10, 16-3-20
(1985 and Supp. 1987)); South Dakota (see S. D. Codified Laws §§ 22-16-4,
22-16-12, 23A-27A-1 -- 23A-27A-41 (1988)); Utah (see Utah Code Ann. §§
76-3-206, 76-3-207 (1978 and Supp. 1987)); Vermont (see Vt. Stat. Ann.,
Tit. 13, §§ 2303, 2403, 7101-7107 (1974 and Supp. 1987)); Virginia (see
Va. Code §§ 18.2-31 (1988), 19.2-264.2 -- 19.2-264.5 (1983 and Supp.
1987)); Washington (see Wash. Rev. Code §§ 10.95.010 -- 10.95.900 (1987));
Wyoming (see Wyo. Stat. §§ 6-2-101 -- 6-2-103 (1988)).
|
| [472] |
*fn27 It is reported that a 10-year-old black
child was hanged in Louisiana in 1855 and a Cherokee Indian child of the
same age was hanged in Arkansas in 1885. See Streib, Death Penalty for
Children: The American Experience with Capital Punishment for Crimes
Committed While under Age Eighteen, 36 Okla. L. Rev. 613, 619-620
(1983).
|
| [473] |
*fn28 See Tr. of Oral Arg. 31 (respondent
suggests a minimum age of 14); post, at 872 (dissent agrees that some line
exists); post, at 848 (concurrence similarly agrees).
|
| [474] |
*fn29 One might argue, of course, that
petitioner's execution "could theoretically be imposed" in 19 States, see
post, at 864 (dissenting opinion), just as execution was permissible above
the age of 7 in Blackstone's time. Ibid. This argument would, though,
first have to acknowledge that the execution would be impermissible in 32
States. Additionally, 2 of the 19 States that retain a death penalty
without setting a minimum age simply do not sentence people to death
anymore. Neither South Dakota nor Vermont has imposed a death sentence
since our landmark decision in Furman v. Georgia, 408 U.S. 238 (1972). See Greenberg, Capital Punishment as a System, 91
Yale L. J. 908, 929-936 (1982); NAACP Legal Defense and Educational Fund,
Inc., Death Row, U. S. A. (1980-1987). (Vermont is frequently counted as a
15th State without a death penalty, since its capital punishment scheme
fails to guide jury discretion, see Vt. Stat. Ann., Tit. 13, §§ 7101-7107
(1974), and has not been amended since our decision in Furman v. Georgia,
supra, holding similar statutes unconstitutional. South Dakota's statute
does provide for jury consideration of aggravating and mitigating factors.
See S. D. Codified Laws, ch. 23A-27A (1988)). Thus, if one were to shift
the focus from those States that have expressly dealt with the issue of
minimum age and toward a general comparison of States whose statutes,
facially, would and would not permit petitioner's execution, one would
have to acknowledge a 2-to-1 ratio of States in which it is not even
"theoretically" possible that Thompson's execution could
occur.
|
| [475] |
*fn30 California (Cal. Penal Code Ann. § 190.5
(West 1988)) (age 18); Colorado (Colo. Rev. Stat. § 16-11-103(1)(a)
(1986)) (age 18); Connecticut (Conn. Gen. Stat. § 53a-46a(g)(1) (1985))
(age 18); Georgia (Ga. Code Ann. § 17-9-3 (1982)) (age 17); Illinois (Ill.
Rev. Stat., ch. 38, para. 9-1(b) (1987)) (age 18); Indiana (Ind. Code §
35-50-2-3 (Supp. 1987)) (age 16); Kentucky (Ky. Rev. Stat. § 640.040(1)
(1987)) (age 16); Maryland (Md. Ann. Code, Art. 27, § 412(f) (1988)) (age
18); Nebraska (Neb. Rev. Stat. § 28-105.01 (1985)) (age 18); Nevada (Nev.
Rev. Stat. § 176.025 (1987)) (age 16); New Hampshire (N. H. Rev. Stat.
Ann. § 630:5(XIII) (Supp. 1987)) (prohibiting execution of one who was a
minor at time of crime) (§ 21-B:1 indicates that age 18 is age of
majority, while § 630:1(V) provides that no one under age 17 shall be held
culpable of a capital offense); New Jersey (N. J. Stat. Ann. §§
2A:4A-22(a) (1987), 2C:11-3(g) (West Supp. 1988)) (age 18); New Mexico (N.
M. Stat. Ann. §§ 28-6-1(A), 31-18-14(A) (1987)) (age 18); North Carolina
(N. C. Gen. Stat. § 14-17 (Supp. 1987)) (age 17, except death penalty
still valid for anyone who commits first-degree murder while serving
prison sentence for prior murder or while on escape from such sentence);
Ohio (Ohio Rev. Code Ann. § 2929.02(A) (1984)) (age 18); Oregon (Ore. Rev.
Stat. §§ 161.620, 419.476(1) (1987)) (age 18); Tennessee (Tenn. Code Ann.
§§ 37-1-102(3), (4), 37-1-103, 37-1-134(a)(1) (1984 and Supp. 1987)) (age
18); Texas (Tex. Penal Code Ann. § 8.07(d) (Supp. 1987-1988)) (age 17).
In addition, the Senate recently passed a bill authorizing the death
penalty for certain drug-related killings, with the caveat that "[a]
sentence of death shall not be carried out upon a person who is under 18
years of age at the time the crime was committed." S. 2455, 100th Cong.,
2d Sess.; 134 Cong. Rec. 14118 (1988).
|
| [476] |
*fn31 We have previously recognized the
relevance of the views of the international community in determining
whether a punishment is cruel and unusual. See Trop v. Dulles,
356 U.S. 86, 102, and n. 35 (1958); Coker v.
Georgia, 433 U.S., at 596, n. 10; Enmund v. Florida, 458 U.S., at 796-797, n. 22.
|
| [477] |
*fn32 " Be It Resolved, That the American Bar
Association opposes, in principle, the imposition of capital punishment
upon any person for any offense committed while under the age of eighteen
(18)." American Bar Association, Summary of Action Taken by the House of
Delegates 17 (1983 Annual Meeting).
|
| [478] |
*fn33 "[C]ivilized societies will not tolerate
the spectacle of execution of children . . . ." American Law Institute,
Model Penal Code § 210.6, commentary, p. 133 (Official Draft and Revised
Comments 1980).
|
| [479] |
*fn34 All information regarding foreign death
penalty laws is drawn from App. to Brief for Amnesty International as
Amicus Curiae A-1 -- A-9, and from Death Penalty in Various Countries,
prepared by members of the staff of the Law Library of the Library of
Congress, January 22, 1988 (available in Clerk of Court's case file). See
also Children and Young Persons Act, 1933, 23 Geo. 5, ch. 12, § 53(1), as
amended by the Murder (Abolition of Death Penalty) Act 1965, §§ 1(5), 4
(abolishing death penalty for juvenile offenders in United Kingdom),
reprinted in 6 Halsbury's Statutes 55-56 (4th ed. 1985); Crimes Act, 1961,
§ 16, in 1 Reprinted Statutes of New Zealand 650-651 (1979). In addition,
three major human rights treaties explicitly prohibit juvenile death
penalties. 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) (signed but
not ratified by the United States), 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, [1955]
6 U. S. T. 3516, 3560, T. I. A. S. No. 3365 (ratified by the United
States).
|
| [480] |
*fn35 See Furman v. Georgia, 408
U.S., at 249 (rarity of a sentence leads to an inference of its
arbitrary imposition) (Douglas, J., concurring); id., at 274-277 (Eighth
Amendment prevents arbitrary death sentences; rarity of death sentences
results in an inference of arbitrariness) (BRENNAN, J., concurring); id.,
at 299-300 (BRENNAN, J., concurring); id., at 312 (rarity of imposition
indicates arbitrariness; "A penalty with such negligible returns to the
State would be patently excessive" and therefore violate the Eighth
Amendment) (WHITE, J., concurring); id., at 314 (WHITE, J., concurring);
see also Enmund v. Florida, 458 U.S., at 794-796 (few
juries sentence defendants to death who neither killed nor intended to
kill).
|
| [481] |
*fn36 V. Streib, Death Penalty for Juveniles
190-208 (1987) (compiling information regarding all executions in this
country from 1620 through 1986 for crimes committed while under age 18;
uncertainty between 18 and 20 because of two persons executed who may have
been either 15 or 16 at time of crime).
|
| [482] |
*fn37 Professor Streib reports that the last
execution of a person for a crime committed under age 16 was on January 9,
1948, when Louisiana executed Irvin Mattio, 15 at the time of his crime.
Id., at 197.
|
| [483] |
*fn38 See U.S. Dept. of Justice, Uniform Crime
Reports: Crime in the United States 174 (1986); id., at 174 (1985); id.,
at 172 (1984); id., at 179 (1983); id., at 176 (1982); U.S. Dept. of
Justice, Bureau of Justice Statistics Bulletin: Capital Punishment, 1986,
p. 4 (1987); id., Capital Punishment 1985, p. 5 (1986); id., Capital
Punishment 1984, p. 6 (1985); Streib, supra, n. 36, at
168-169.
|
| [484] |
*fn39 For example, one might observe that of
the 80,233 people arrested for willful criminal homicide who were over the
age of 16, 1,388, or 1.7%, received the death sentence, while 5 of the
1,861, or 0.3%, of those under 16 who were arrested for willful criminal
homicide received the death penalty.
|
| [485] |
*fn40 That the task of interpreting the great,
sweeping clauses of the Constitution ultimately falls to us has been for
some time an accepted principle of American jurisprudence. See Marbury v.
Madison, 1 Cranch 137, 177 (1803) ("It is
emphatically the province and duty of the judicial department to say what
the law is"). With the Eighth Amendment, whose broad, vague terms do not
yield to a mechanical parsing, the method is no different. See, e. g.,
Furman v. Georgia, 408 U.S., at 268-269 (BRENNAN, J.,
concurring); Coker v. Georgia, 433
U.S., at 598 ("We have the abiding conviction" that the death
penalty is an excessive penalty for rape).
|
| [486] |
*fn41 "[T]he conception of criminal
responsibility with which the Juvenile Court operates also provides
supporting rationale for its role in crime prevention. The basic
philosophy concerning this is that criminal responsibility is absent in
the case of misbehaving children. . . . But, what does it mean to say that
a child has no criminal responsibility? . . . One thing about this does
seem clearly implied, . . . and that is an absence of the basis for adult
criminal accountability -- the exercise of an unfettered free will." S.
Fox, The Juvenile Court: Its Context, Problems and Opportunities 11-12
(1967) (publication of the President's Commission on Law Enforcement and
Administration of Justice).
|
| [487] |
*fn42 A report on a professional evaluation of
14 juveniles condemned to death in the United States, which was accepted
for presentation to the American Academy of Child and Adolescent
Psychiatry, concluded:
"Adolescence is well recognized as a time of great physiological and
psychological stress. Our data indicate that, above and beyond these
maturational stresses, homicidal adolescents must cope with brain
dysfunction, cognitive limitations, and severe psychopathology. Moreover,
they must function in families that are not merely nonsupportive but also
violent and brutally abusive. These findings raise questions about the
American tradition of considering adolescents to be as responsible as
adults for their offenses and of sentencing them to death." Lewis, Pincus,
Bard, Richardson, Prichep, Feldman, & Yeager, Neuropsychiatric,
Psychoeducational, and Family Characteristics of 14 Juveniles Condemned to
Death in the United States 11 (1987).
|
| [488] |
*fn43 See n. 23, supra ; see also, e. g., E.
Erikson, Childhood and Society 261-263 (1985) ("In their search for a new
sense of continuity and sameness, adolescents have to refight many of the
battles of earlier years, even though to do so they must artificially
appoint perfectly well-meaning people to play the roles of adversaries");
E. Erikson, Identity: Youth and Crisis 128-135 (1968) (discussing
adolescence as a period of "identity confusion," during which youths are
"preoccupied with what they appear to be in the eyes of others as compared
with what they feel they are"); Gordon, The Tattered Cloak of Immortality,
in Adolescence and Death 16, 27 (C. Corr & J. McNeil eds. 1986)
("Risk-taking with body safety is common in the adolescent years, though
sky diving, car racing, excessive use of drugs and alcoholic beverages,
and other similar activities may not be directly perceived as a kind of
flirting with death. In fact, in many ways, this is counterphobic behavior
-- a challenge to death wherein each survival of risk is a victory over
death"); Kastenbaum, Time and Death in Adolescence, in The Meaning of
Death 99, 104 (H. Feifel ed. 1959) ("The adolescent lives in an intense
present; 'now' is so real to him that 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"); Kohlberg,
The Development of Children's Orientations Toward a Moral Order, 6 Vita
Humana 11, 30 (1963) (studies reveal that "large groups of moral concepts
and ways of thought only attain meaning at successively advanced ages and
require the extensive background of social experience and cognitive growth
represented by the age factor"); Miller, Adolescent Suicide: Etiology and
Treatment, 9 Adolescent Psychiatry 327, 329 (S. Feinstein, J. Looney, A.
Schwartzberg, & A. Sorosky eds. 1981) (many adolescents possess a
"profound conviction of their own omnipotence and immortality. Thus many
adolescents may appear to be attempting suicide, but they do not really
believe that death will occur"); Streib, supra n. 36, at 3-20, 184-189
("The difference that separates children from adults for most purposes of
the law is children's immature, undeveloped ability to reason in an
adultlike manner").
|
| [489] |
*fn44 We have invalidated death sentences when
this significant justification was absent. See Enmund v. Florida, 458 U.S., at 800-801 (death penalty for one who
neither kills nor intends to kill "does not measurably contribute to the
retributive end of ensuring that the criminal gets his just deserts");
Ford v. Wainwright, 477 U.S. 399 (1986)
(unconstitutional to execute someone when he is insane, in large part
because retributive value is so low).
|
| [490] |
*fn45 Although we have held that a legislature
may base a capital punishment scheme on the goal of deterrence, some
Members of the Court have expressed doubts about whether fear of death
actually deters crimes in certain instances. See Lockett v. Ohio, 438 U.S. 586, 624-628 (1978) (deterrence argument
unavailable for one who neither kills nor intends to kill; "doubtful" that
prospect of death penalty would deter "individuals from becoming involved
in ventures in which death may unintentionally result") (WHITE, J.,
concurring in judgment); Spaziano v. Florida, 468 U.S. 447, 480 (1984) (because of invalidation of mandatory death
penalty laws and additional procedural requirements to death penalty laws
in which the jury's discretion must be carefully guided, deterrence
rationale now rather weak support for capital punishment) (STEVENS, J.,
dissenting); Enmund v. Florida, 458 U.S., at 798-800
(unlikely that prospect of death penalty will deter one who neither kills
nor intends to kill) (WHITE, J.); Furman v. Georgia, 408 U.S.,
at 301-302 (unverifiable that the death penalty deters more
effectively than life imprisonment) (BRENNAN, J., concurring); id., at
345-355, and nn. 124-125 (deterrence rationale unsupported by the
evidence) (MARSHALL, J., concurring).
|
| [491] |
*fn46 See United States Department of Justice,
Uniform Crime Reports, supra, n. 38 (80,233 of 82,094, or
97.7%).
|
| [492] |
*fn47 See also Gregg v. Georgia, 428
U.S. 153, 183 (1976) ("[T]he sanction imposed cannot be so
totally without penological justification that it results in the
gratuitous infliction of suffering") (joint opinion of Stewart, Powell,
and STEVENS, JJ.).
|
| [493] |
*fn48 Given the Court's disposition of the
principal issue, it is unnecessary to resolve the second question
presented, namely, whether photographic evidence that a state court deems
erroneously admitted but harmless at the guilt phase nevertheless violates
a capital defendant's constitutional rights by virtue of its being
considered at the penalty phase.
|
| [494] |
*fn* Appendices assembled with the assistance
of the Brief for the National Legal Aid and Defender Association, the
National Association of Criminal Defense Lawyers, and the American Jewish
Committee as Amici Curiae.
|
| |
|
| |
Concurrence Footnotes
|
| |
|
| [495] |
*fn* Contrary to the dissent's suggestion, the
conclusion I have reached in this case does not imply that I would reach a
similar conclusion in cases involving "those of extremely low
intelligence, or those over 75, or any number of other appealing groups as
to which the existence of a national consensus regarding capital
punishment may be in doubt . . . because they are not specifically named
in the capital statutes." See post, at 877. In this case, there is
significant affirmative evidence of a national consensus forbidding the
execution of defendants who were below the age of 16 at the time of the
offense. The evidence includes 18 state statutes setting a minimum age of
16 or more, and it is such evidence -- not the mere failure of Oklahoma to
specify a minimum age or the "appealing" nature of the group to which
petitioner belongs -- that leaves me unwilling to conclude that petitioner
may constitutionally be executed. Cases in which similarly persuasive
evidence was lacking would in my view not be analogous to the case before
us today. The dissent is mistaken both when it reads into my discussion a
contrary implication and when it suggests that there are ulterior reasons
behind the implication it has incorrectly drawn.
|
| |
|
| |
Dissent Footnotes
|
| |
|
| [496] |
*fn1 See 10 U. S. C. § 906a (peacetime
espionage); 10 U. S. C. § 918 (murder while member of Armed Forces); 18 U.
S. C. §§ 32, 33, and 34 (1982 ed. and Supp. IV) (destruction of aircraft,
motor vehicles, or related facilities resulting in death); 18 U. S. C. §
115(b)(3) (1982 ed., Supp. IV) (retaliatory murder of member of immediate
family of law enforcement officials) (by cross reference to 18 U. S. C. §
1111); 18 U. S. C. § 351 (1982 ed. and Supp. IV) (murder of Member of
Congress, important Executive official, or Supreme Court Justice) (by
cross reference to 18 U. S. C. § 1111); 18 U. S. C. § 794 (espionage); 18
U. S. C. § 844(f) (1982 ed., Supp. IV) (destruction of government property
resulting in death); 18 U. S. C. § 1111 (1982 ed. and Supp. IV)
(first-degree murder within federal jurisdiction); 18 U. S. C. § 1716
(mailing of injurious articles with intent to kill resulting in death); 18
U. S. C. § 1751 (assassination or kidnaping resulting in death of
President or Vice President) (by cross reference to 18 U. S. C. § 1111);
18 U. S. C. § 1992 (willful wrecking of train resulting in death); 18 U.
S. C. § 2113 (bank robbery-related murder or kidnaping); 18 U. S. C. §
2381 (treason); 49 U. S. C. App. §§ 1472 and 1473 (death resulting from
aircraft hijacking).
|
| [497] |
*fn2 The concurrence disputes the significance
of Congress' lowering of the federal waiver age by pointing to a recently
approved Senate bill that would set a minimum age of 18 before capital
punishment could be imposed for certain narcotics-related offenses. This
bill has not, however, been passed by the House of Representatives and
signed into law by the President. Even if it eventually were, it would not
result in the setting of a minimum age of 18 for any of the other federal
death penalty statutes set forth in n. 1, supra. It would simply reflect a
judgment by Congress that the death penalty is inappropriate for juvenile
narcotics offenders. That would have minimal relevance to the question of
consensus at issue here, which is not whether criminal offenders under 16
can be executed for all crimes, but whether they can be executed for any
crimes. For the same reason, there is no significance to the concurrence's
observation that the Federal Government has by Treaty agreed to a minimum
death penalty age in certain very limited circumstances.
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| [498] |
*fn3 Compare S. Davis, Rights of Juveniles,
App. B-1 to B-26 (1987), with S. Davis, Rights of Juveniles 233-249
(1974). Idaho has twice lowered its waiver age, most recently from 15 to
14; Idaho Code § 16-1806 (Supp. 1988); Illinois has added as excluded
offenses: murder, criminal sexual assault, armed robbery with a firearm,
and possession of a deadly weapon in a school committed by a child 15 or
older; Ill. Ann. Stat., ch. 37, § 805-4(6) (Supp. 1988); Indiana has
lowered its waiver age to 14 where aggravating circumstances are present,
and it has made waiver mandatory where child is 10 or older and has been
charged with murder; Ind. Code §§ 31-6-2-4(b) -- (e) (Supp. 1987);
Kentucky has established a waiver age of 14 for juveniles charged with
capital offenses or Class A or B felonies; Ky. Rev. Stat. §§
635.020(2)-(4), 640.010 (Supp. 1986); Minnesota has made waiver mandatory
for offenses committed by children 14 years or older who were previously
certified for criminal prosecution and convicted of the offense or a
lesser included offense; Minn. Stat. § 260.125, subd. 1, 3, and 3a (1986);
and Montana has lowered its waiver age from 16 to 12 for children charged
with sexual intercourse without consent, deliberate homicide, mitigated
deliberate homicide, or attempted deliberate homicide or attempted
mitigated deliberate homicide; Mont. Code Ann. § 41-5-206(1)(a) (1987);
New Jersey lowered its waiver age from 16 to 14 for certain aggravated
offenses; N. J. Stat. Ann. § 2A:4A-26 (West 1987); and New York recently
amended its law to allow certain 13-, 14- and 15-year-olds to be tried and
punished as adults; N. Y. Crim. Proc. Law § 190.71 (McKinney
1982).
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| [499] |
*fn4 The plurality's reliance upon Amnesty
International's account of what it pronounces to be civilized standards of
decency in other countries, ante, at 830-831, and n. 34, is totally
inappropriate as a means of establishing the fundamental beliefs of this
Nation. That 40% of our States do not rule out capital punishment for
15-year-old felons is determinative of the question before us here, even
if that position contradicts the uniform view of the rest of the world. We
must never forget that it is a Constitution for the United States of
America that we are expounding. The practices of other nations,
particularly other democracies, can be relevant to determining whether a
practice uniform among our people is not merely a 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. See Palko v. Connecticut, 302 U.S. 319, 325
(1937) (Cardozo, J.). But where there is not first a settled consensus
among our own people, the views of other nations, however enlightened the
Justices of this Court may think them to be, cannot be imposed upon
Americans through the Constitution. In the present case, therefore, the
fact that a majority of foreign nations would not impose capital
punishment upon persons under 16 at the time of the crime is of no more
relevance than the fact that a majority of them would not impose capital
punishment at all, or have standards of due process quite different from
our own.
|
| [500] |
*fn5 I leave to a footnote my discussion of the
plurality's reliance upon the fact that in most or all States, juveniles
under 16 cannot vote, sit on a jury, marry without parental consent,
participate in organized gambling, patronize pool halls, pawn property, or
purchase alcohol, pornographic materials, or cigarettes. Ante, at 823,
824, and nn. 10-14. Our cases sensibly suggest that constitutional rules
relating to the maturity of minors must be drawn with an eye to the
decision for which the maturity is relevant. See Fare v. Michael C., 442 U.S. 707, 725-727 (1979) (totality of the
circumstances test for juvenile waiver of Fifth Amendment rights permits
evaluation of the juvenile's age, experience, education, background, and
intellignece, and into whether he has the capacity to understand the
warnings given him); Bellotti v. Baird, 443 U.S. 622,
634-637, 642 (1979) (abortion decision differs in important ways from
other decisions that may be made during minority). It is surely
constitutional for a State to believe that the degree of maturity that is
necessary fully to appreciate the pros and cons of smoking cigarettes, or
even of marrying, may be somewhat greater than the degree necessary fully
to appreciate the pros and cons of brutally killing a human
being.
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