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BRENNAN, J., Dissenting Opinion
SUPREME COURT OF THE UNITED STATES
492 U.S. 361
Stanford v. Kentucky
CERTIORARI TO THE SUPREME COURT
OF KENTUCKY
No. 87-5765
Argued: March 27, 1989 --- Decided:
June 26, 1989 [*]
JUSTICE BRENNAN,
with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS
join, dissenting.
I believe that to take the
life of a person as punishment for a crime committed when below
the age of 18 is cruel and unusual, and hence is prohibited by the
Eighth Amendment. [p383]
The method by which this Court
assesses a claim that a punishment is unconstitutional because it
is cruel and unusual is established by our precedents, and it
bears little resemblance to the method four Members of the Court
apply in this case. To be sure, we begin the task of deciding
whether a punishment is unconstitutional by reviewing legislative
enactments and the work of sentencing juries relating to the
punishment in question to determine whether our Nation has set its
face against a punishment to an extent that it can be concluded
that the punishment offends our "evolving standards of decency."
Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).
The Court undertakes such an analysis in this case. Ante at
370-373. But JUSTICE SCALIA, in his plurality opinion on this
point, ante, at 374-380, would treat the Eighth Amendment inquiry
as complete with this investigation. I agree with JUSTICE O'CONNOR,
ante at 382, that a more searching inquiry is mandated by
our precedents interpreting the Cruel and Unusual Punishments
Clause. In my view, that inquiry must in this case go beyond age-based
statutory classifications relating to matters other than capital
punishment, cf. ante at 382 (O'CONNOR, J., concurring in
part and concurring in judgment), and must also encompass what
JUSTICE SCALIA calls, with evident but misplaced disdain, "ethicoscientific"
evidence. Only then can we be in a position to judge, as our cases
require, whether a punishment is unconstitutionally excessive,
either because it is disproportionate, given the culpability of
the offender, or because it serves no legitimate penal goal.
I
Our judgment about the
constitutionality of a punishment under the Eighth Amendment is
informed, though not determined, see infra at 391, by an
examination of contemporary attitudes toward the punishment, as
evidenced in the actions of legislatures and of juries.
McCleskey v. Kemp, 481 U.S. 279, 300 (1987); Coker v.
Georgia, 433 U.S. 584, 592 (1977) [p384]
(plurality opinion). The views of organizations with expertise in
relevant fields and the choices of governments elsewhere in the
world also merit our attention as indicators whether a punishment
is acceptable in a civilized society.
A
The Court's discussion of
state laws concerning capital sentencing, ante at 370-372,
gives a distorted view of the evidence of contemporary standards
that these legislative determinations provide. Currently, 12 of
the States whose statutes permit capital punishment specifically
mandate that offenders under age 18 not be sentenced to death.
Ante at 370-371, n. 2. When one adds to these 12 States the 15
(including the District of Columbia) in which capital punishment
is not authorized at all,
[n1] it appears that the governments in fully 27 of
the States have concluded that no one under 18 should face the
death penalty. A further three States explicitly refuse to
authorize sentences of death for those who committed their offense
when under 17, ante at 370, n. 2, making a total of 30
States that would not tolerate the execution of petitioner Wilkins.
Congress' most recent enactment of a death penalty statute also
excludes those under 18. [p385] Pub.L.
100-690, § 7001 (1), 102 Stat. 4390, 21 U.S.C. § 848(1) (1988 ed.).
In 19 States that have a death
penalty, no minimum age for capital sentences is set in the death
penalty statute. See Thompson v. Oklahoma, 487 U.S. 815,
826-827, and n. 26 (1988), and n. 1, supra. The notion that
these States have consciously authorized the execution of
juveniles derives from the congruence in those jurisdictions of
laws permitting state courts to hand down death sentences, on the
one hand, and, on the other, statutes permitting the transfer of
offenders under 18 from the juvenile to state court systems for
trial in certain circumstances. See Thompson, supra, at
867-868, and n. 3 (SCALIA, J., dissenting). I would not assume,
however, in considering how the States stand on the moral issue
that underlies the constitutional question with which we are
presented, that a legislature that has never specifically
considered the issue has made a conscious moral choice to permit
the execution of juveniles. See 487 U.S. at 826-827, n. 24
(plurality opinion). On a matter of such moment that most States
have expressed an explicit and contrary judgment, the decisions of
legislatures that are only implicit, and that lack the "earmarks
of careful consideration that we have required for other kinds of
decisions leading to the death penalty," id. at 857 (O'CONNOR,
J., concurring in judgment), must count for little. I do not
suggest, of course, that laws of these States cut against
the constitutionality of the juvenile death penalty -- only that
accuracy demands that the baseline for our deliberations should be
that 27 States refuse to authorize a sentence of death in the
circumstances of petitioner Stanford's case, and 30 would not
permit Wilkins' execution; that 19 States have not squarely faced
the question; and that only the few remaining jurisdictions have
explicitly set an age below 18 at which a person may be sentenced
to death.
B
The application of these laws
is another indicator the Court agrees to be relevant. The fact
that juries have on occasion [p386]
sentenced a minor to death shows, the Court says, that the death
penalty for adolescents is not categorically unacceptable to
juries. Ante at 374. This, of course, is true; but it is
not a conclusion that takes Eighth Amendment analysis very far.
Just as we have never insisted that a punishment have been
rejected unanimously by the States before we may judge it cruel
and unusual, so we have never adopted the extraordinary view that
a punishment is beyond Eighth Amendment challenge if it is
sometimes handed down by a jury. See, e.g., Enmund v. Florida,
458 U.S. 782, 792 (1982) (holding the death penalty cruel and
unusual punishment for participation in a felony in which an
accomplice commits murder, though about a third of American
jurisdictions authorized such punishment, and at least six
nontriggerman felony murderers had been executed, and three others
were on death rows); Coker v. Georgia, 433 U.S. 584,
596-597 (1977) (holding capital punishment unconstitutional for
the rape of an adult woman, though 72 persons had been executed
for rape in this country since 1955, see Enmund, supra, at
795, and though Georgia juries handed down six death sentences for
rape between 1973 and 1977). Enmund and Coker amply
demonstrate that it is no "requisite" of finding an Eighth
Amendment violation that the punishment in issue be "categorically
unacceptable to prosecutors and juries," ante at 374 -- and,
evidently, resort to the Cruel and Unusual Punishment Clause would
not be necessary to test a sentence never imposed because
categorically unacceptable to juries.
Both in absolute and in
relative terms, imposition of the death penalty on adolescents is
distinctly unusual. Adolescent offenders make up only a small
proportion of the current death-row population: 30 out of a total
of 2,186 inmates, or 1.37 percent. NAACP Legal Defense and
Educational Fund, Inc. (LDF), Death Row, U.S.A. (Mar. 1, 1989).
[n2] [p387] Eleven
minors were sentenced to die in 1982; 9 in 1983; 6 in 1984; 5 in
1985; 7 in 1986; and 2 in 1987. App. N to Brief for the Office of
the Capital Collateral Representative for the State of Florida as
Amicus Curiae (hereafter OCCR Brief). Forty-one, or 2.3
percent, of the 1,813 death sentences imposed between January 1,
1982, and June 30, 1988, were for juvenile crimes. Id. at
15, and App.R. And juvenile offenders are significantly less
likely to receive the death penalty than adults. During the same
period, there were 97,086 arrests of adults for homicide, and
1,772 adult death sentences, or 1.8 percent; and 8,911 arrests of
minors for homicide, compared to 41 juvenile death sentences, or
0.5 percent. Ibid., and Apps. Q and R.
[n3]
The Court speculates that this
very small number of capital sentences imposed on adolescents
indicates that juries have considered the youth of the offender
when determining sentence, and have reserved the punishment for
rare cases in which it is nevertheless appropriate. Ante at
374. The State of Georgia made a very similar and equally
conjectural argument in Coker -- that,
as a practical matter,
juries simply reserve the extreme sanction for extreme cases of
rape, and that recent experience . . . does not prove that
jurors consider the death penalty to be a disproportionate
punishment for every conceivable instance of rape.
433 U.S. at 597. This Court,
however, summarily rejected this claim, noting simply that, in the
vast majority of cases, Georgia juries had not imposed the death
sentence for rape. It is certainly true that, in the vast majority
of cases, juries have not sentenced juveniles to death, and it
seems to me perfectly proper to conclude that a sentence so rarely
imposed is "unusual." [p388]
C
Further indicators of
contemporary standards of decency that should inform our
consideration of the Eighth Amendment question are the opinions of
respected organizations. Thompson, 487 U.S. at 830 (plurality
opinion). Where organizations with expertise in a relevant area
have given careful consideration to the question of a punishment's
appropriateness, there is no reason why that judgment should not
be entitled to attention as an indicator of contemporary standards.
There is no dearth of opinion from such groups that the state-sanctioned
killing of minors is unjustified. A number, indeed, have filed
briefs amicus curiae in these cases, in support of
petitioners.
[n4] The American Bar Association has adopted a
resolution opposing the imposition of capital punishment upon any
person for an offense committed while under age 18,
[n5] as has the National Council of Juvenile
[p389] and Family Court Judges.
[n6] The American Law Institute's Model Penal Code
similarly includes a lower age limit of 18 for the death sentence.
[n7] And the National Commission on Reform of the
Federal Criminal Laws also recommended that 18 be the minimum age.
[n8]
Our cases recognize that
objective indicators of contemporary standards of decency in the
form of legislation in other countries is also of relevance to
Eighth Amendment analysis. Thompson, supra, at 830-831;
Enmund, 458 U.S. at 796, n. 22; Coker, 433 U.S. at 596,
n. 10; Trop v. Dulles, 356 U.S. at 102, and n. 35. Many
countries, of course -- over 50, including nearly all in Western
Europe -- have formally abolished the death penalty, or have
limited its use to exceptional crimes such as treason. App. to
Brief for Amnesty International as Amicus Curiae. Twenty-seven
others do not in practice impose the penalty. Ibid. Of the
nations that retain capital punishment, a majority -- 65 --
prohibit the execution of juveniles. Ibid. Sixty-one
countries retain capital punishment and have no statutory
provision exempting juveniles, though some of these nations are
ratifiers of international treaties that do prohibit the execution
of juveniles. Ibid. Since 1979, Amnesty International has
recorded only eight executions of offenders under 18 throughout
the world, three of these in the United States. The other five
executions were carried out in Pakistan, Bangladesh, Rwanda, and
Barbados.
[n9] In addition to national laws, three leading
human rights treaties ratified or signed by the United States
[p390] explicitly prohibit juvenile
death penalties.
[n10] Within the world community, the imposition of
the death penalty for juvenile crimes appears to be overwhelmingly
disapproved.
D
Together, the rejection of the
death penalty for juveniles by a majority of the States, the
rarity of the sentence for juveniles, both as an absolute and a
comparative matter, the decisions of respected organizations in
relevant fields that this punishment is unacceptable, and its
rejection generally throughout the world, provide to my mind a
strong grounding for the view that it is not constitutionally
tolerable that certain States persist in authorizing the execution
of adolescent offenders. It is unnecessary, however, to rest a
view that the Eighth Amendment prohibits the execution of minors
solely upon a judgment as to the meaning to be attached to the
evidence of contemporary values outlined above, for the execution
of juveniles fails to satisfy two well-established and independent
Eighth Amendment requirements -- that a [p391]
punishment not be disproportionate, and that it make a
contribution to acceptable goals of punishment.
II
JUSTICE SCALIA forthrightly
states in his plurality opinion that Eighth Amendment analysis is
at an end once legislation and jury verdicts relating to the
punishment in question are analyzed as indicators of contemporary
values. A majority of the Court rejected this revisionist view as
recently as last Term, see Thompson, 487 U.S. at 833-838 (plurality
opinion); id. at 853-854 (opinion of O'CONNOR, J.), and
does so again in this case and in Penry v. Lynaugh, ante p.
302. We need not and should not treat this narrow range of factors
as determinative of our decision whether a punishment violates the
Constitution because it is excessive.
The Court has explicitly
stated that "the attitude of state legislatures and sentencing
juries do not wholly determine" a controversy arising under
the Eighth Amendment, Coker, 433 U.S. at 597 (plurality
opinion) (emphasis added), because
the Constitution
contemplates that, in the end, our own judgment will be brought
to bear on the question of the [constitutional] acceptability of
a punishment, ibid.
See also id. at 603-604, n. 2 (Powell, J., concurring in
judgment) ("[T]he ultimate decision as to the appropriateness of
the death penalty under the Eighth Amendment . . . must be decided
on the basis of our own judgment in light of the precedents of
this Court"); Enmund, 458 U.S. at 797 ("Although the
judgments of legislatures, juries, and prosecutors weigh heavily
in the balance, it is for us ultimately to judge whether the
Eighth Amendment permits imposition of the death penalty" in a
particular class of cases).
JUSTICE SCALIA's approach
would largely return the task of defining the contours of Eighth
Amendment protection to political majorities. But
[t]he very purpose of a
Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the
reach of majorities and [p392]
officials and to establish them as legal principles to be
applied by the courts. One's right to life, liberty, and
property, to free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to
vote; they depend on the outcome of no elections.
West Virginia Board of
Education v. Barnette, 319 U.S. 624, 638 (1943). Compare
ante at 375-377, with Whitley v. Albers, 475 U.S. 312,
318 (1986) ("The language of the Eighth Amendment . . . manifests
‘an intention to limit the power of those entrusted with the
criminal-law function of government'"). The promise of the Bill of
Rights goes unfulfilled when we leave "[c]onstitutional doctrine [to]
be formulated by the acts of those institutions which the
Constitution is supposed to limit," Radin, The Jurisprudence of
Death, 126 U.Pa.L.Rev. 989, 1036 (1978), as is the case under
JUSTICE SCALIA's positivist approach to the definition of citizens'
rights. This Court abandons its proven and proper role in our
constitutional system when it hands back to the very majorities
the Framers distrusted the power to define the precise scope of
protection afforded by the Bill of Rights, rather than bringing
its own judgment to bear on that question, after complete analysis.
Despite JUSTICE SCALIA's view to the contrary, however,
our cases . . . make clear
that public perceptions of standards of decency with respect to
criminal sanctions are not conclusive. A penalty also must
accord with "the dignity of man," which is the "basic concept
underlying the Eighth Amendment." . . . This means, at least,
that the punishment not be "excessive." . . . [T]he inquiry into
"excessiveness" has two aspects. First, the punishment must not
involve the unnecessary and wanton infliction of pain. . . .
Second, the punishment must not be grossly out of proportion to
the severity of the crime.
Gregg v. Georgia, 428
U.S. 153, 173 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.).
[p393] Thus, in addition to asking
whether legislative or jury rejection of a penalty shows that "society
has set its face against it," ante at 378, the Court asks
whether "a punishment is ‘excessive' and unconstitutional" because
there is disproportion "between the punishment imposed and the
defendant's blameworthiness," ante at 382 (opinion of
O'CONNOR, J.), or because it
makes no measurable
contribution to acceptable goals of punishment, and hence is
nothing more than the purposeless and needless imposition of
pain and suffering,
Coker, supra, at 592 (plurality
opinion). See, e.g., Penry, ante at 335 (opinion of
O'CONNOR, J.); ante at 342-343 (BRENNAN, J., concurring in
part and dissenting in part).
III
There can be no doubt at this
point in our constitutional history that the Eighth Amendment
forbids punishment that is wholly disproportionate to the
blameworthiness of the offender. "The constitutional principle of
proportionality has been recognized explicitly in this Court for
almost a century." Solem v. Helm, 463 U.S. 277, 286 (1983).
Usually formulated as a requirement that sentences not be "disproportionate
to the crime committed," id., at 284; see, e.g., Weems
v. United States, 217 U.S. 349 (1910); O'Neil v. Vermont,
144 U.S. 323, 339-340 (1892) (Field, J., dissenting), the
proportionality principle takes account not only of the "injury to
the person and to the public" caused by a crime, but also of the
"moral depravity" of the offender. Coker, supra, at 598.
The offender's culpability for his criminal acts -- "the degree of
the defendant's blameworthiness," Enmund, supra, at 815 (O'CONNOR,
J., dissenting); see also id. at 798 (opinion of the Court)
-- is thus of central importance to the constitutionality of the
sentence imposed. Indeed, this focus on a defendant's
blameworthiness runs throughout our constitutional jurisprudence
relating to capital sentencing. See, e.g., Booth v. Maryland,
482 U.S. 496, 502 (1987) (striking down state statute requiring
consideration by sentencer of evidence other than defendant's
record and characteristics and the circumstances
[p394] of the crime, which had no "bearing on the
defendant's ‘personal responsibility and moral guilt'");
California v. Brown, 479 U.S. 538, 545 (1987) (an "emphasis on
culpability in sentencing decisions has long been reflected in
Anglo-American jurisprudence. . . . Lockett and Eddings
reflect the belief that punishment should be directly related to
the personal culpability of the criminal defendant") (O'CONNOR,
J., concurring).
Proportionality analysis
requires that we compare "the gravity of the offense," understood
to include not only the injury caused, but also the defendant's
culpability, with "the harshness of the penalty." Solem, supra,
at 292. In my view, juveniles so generally lack the degree of
responsibility for their crimes that is a predicate for the
constitutional imposition of the death penalty that the Eighth
Amendment forbids that they receive that punishment.
A
Legislative determinations
distinguishing juveniles from adults abound. These age-based
classifications reveal much about how our society regards
juveniles as a class, and about societal beliefs regarding
adolescent levels of responsibility. See Thompson, 487 U.S.
at 823-825 (plurality opinion).
The participation of juveniles
in a substantial number of activities open to adults is either
barred completely or significantly restricted by legislation. All
States but two have a uniform age of majority, and have set that
age at 18 or above. OCCR Brief, App. A. No State has lowered its
voting age below 18. Id., App. C; see Thompson, supra,
at 839, App. A. Nor does any State permit a person under 18 to
serve on a jury. OCCR Brief, App. B; see Thompson, supra,
at 840, App. B. Only four States ever permit persons below 18 to
marry without parental consent. OCCR Brief, App. D; see
Thompson, supra, at 843, App. D. Thirty-seven States have
specific enactments requiring that a patient have attained 18
before she may validly consent to medical treatment. OCCR Brief,
App. E. Thirty-four [p395] States
require parental consent before a person below 18 may drive a
motor car. Id., App. F; see Thompson, supra, at 842,
App. C. Legislation in 42 States prohibits those under 18 from
purchasing pornographic materials. OCCR Brief, App. G; see
Thompson, supra, at 845, App. E. Where gambling is legal,
adolescents under 18 are generally not permitted to participate in
it, in some or all of its forms. OCCR Brief, App. H; see
Thompson, supra, at 847, App. F. In these and a host of other
ways, minors are treated differently from adults in our laws,
which reflects the simple truth derived from communal experience
that juveniles, as a class, have not the level of maturation and
responsibility that we presume in adults and consider desirable
for full participation in the rights and duties of modern life.
The reasons why juveniles
are not trusted with the privileges and responsibilities of an
adult also explain why their irresponsible conduct is not as
morally reprehensible as that of an adult.
Thompson, supra, at 835
(plurality opinion). Adolescents "are more vulnerable, more
impulsive, and less self-disciplined than adults," and are without
the same "capacity to control their conduct and to think in long-range
terms." Twentieth Century Fund Task Force on Sentencing Policy
Toward Young Offenders, Confronting Youth Crime 7 (1978) (hereafter
Task Force). They are particularly impressionable and subject to
peer pressure, see Eddings v. Oklahoma, 455 U.S. 104, 115
(1982), and prone to "experiment, risk-taking and bravado," Task
Force 3. They lack "experience, perspective, and judgment."
Bellotti v. Baird, 443 U.S. 622, 635 (1979). See generally
Thompson, supra, at 843-844, n. 43; Brief for American Society
for Adolescent Psychiatry et al. as Amici Curiae (reviewing
scientific evidence). Moreover, the very paternalism that our
society shows toward youths and the dependency it forces upon them
mean that society bears a responsibility for the actions of
juveniles that it does not for the actions of adults who are, at
least theoretically, free to make their own choices:
youth crime . . . is not
exclusively the offender's fault; offenses by
[p396] the young represent a failure of family,
school, and the social system, which share responsibility for
the development of America's youth.
Task Force 7.
To be sure, the development of
cognitive and reasoning abilities and of empathy, the acquisition
of experience upon which these abilities operate and upon which
the capacity to make sound value judgments depends, and in general
the process of maturation into a self-directed individual fully
responsible for his or her actions, occur by degrees. See, e.g.,
G. Manaster, Adolescent Development and the Life Tasks (1977). But
the factors discussed above indicate that 18 is the dividing line
that society has generally drawn, the point at which it is thought
reasonable to assume that persons have an ability to make, and a
duty to bear responsibility for their, judgments. Insofar as age
18 is a necessarily arbitrary social choice as a point at which to
acknowledge a person's maturity and responsibility, given the
different developmental rates of individuals, it is, in fact,
a conservative estimate of
the dividing line between adolescence and adulthood. Many of the
psychological and emotional changes that an adolescent
experiences in maturing do not actually occur until the early
20s.
Brief for American Society for
Adolescent Psychiatry et al. as Amici Curiae 4 (citing
social scientific studies).
B
There may be exceptional
individuals who mature more quickly than their peers, and who
might be considered fully responsible for their actions prior to
the age of 18, despite their lack of the experience upon which
judgment depends.
[n11] In my view, however, it is not sufficient to
accommodate the [p397] facts about
juveniles that an individual youth's culpability may be taken into
account in the decision to transfer him or her from the juvenile
to the adult court system for trial, or that a capital sentencing
jury is instructed to consider youth and other mitigating factors.
I believe that the Eighth Amendment requires that a person who
lacks that full degree of responsibility for his or her actions
associated with adulthood not be sentenced to death. Hence it is
constitutionally inadequate that a juvenile offender's level of
responsibility be taken into account only along with a host of
other factors that the court or jury may decide outweigh that want
of responsibility.
Immaturity that
constitutionally should operate as a bar to a disproportionate
death sentence does not guarantee that a minor will not be
transferred for trial to the adult court system. Rather, the most
important considerations in the decision to transfer a juvenile
offender are the seriousness of the offense, the extent of prior
delinquency, and the response to prior treatment within the
juvenile justice system. National Institute for Juvenile Justice
and Delinquency, United States Dept. of Justice, Major Issues in
Juvenile Justice Information and Training, Youth in Adult Courts:
Between Two Worlds 211 (1982). Psychological, intellectual, and
other personal characteristics of juvenile offenders receive
little attention at the transfer stage, and cannot account for
differences between those transferred and those who remain in the
juvenile court system. See Solway, Hays, Schreiner, &
Cansler, Clinical Study of Youths Petitioned for Certification as
Adults, 46 Psychological Rep. 1067 (1980). Nor is an adolescent's
lack of full culpability isolated at the sentencing stage as a
factor that determinatively bars a death sentence. A jury is free
to weigh a juvenile offender's youth and lack of full
responsibility against the heinousness of the crime and other
aggravating factors -- and, finding the aggravating factors
weightier, to sentence even the most immature of 16- or 17-year
olds to be killed. By no stretch of the imagination,
[p398] then, are the transfer and
sentencing decisions designed to isolate those juvenile offenders
who are exceptionally mature and responsible, and who thus stand
out from their peers as a class.
It is thus unsurprising that
individualized consideration at transfer and sentencing has not in
fact ensured that juvenile offenders lacking an adult's
culpability are not sentenced to die. Quite the contrary.
Adolescents on death row appear typically to have a battery of
psychological, emotional, and other problems going to their likely
capacity for judgment and level of blameworthiness. A recent
diagnostic evaluation of all 14 juveniles on death rows in four
States is instructive. Lewis et al., Neuropsychiatric,
Psychoeducational, and Family Characteristics of 14 Juveniles
Condemned to Death in the United States, 145 Am.J.Psychiatry 584
(1988). Seven of the adolescents sentenced to die were psychotic
when evaluated, or had been so diagnosed in earlier childhood;
four others had histories consistent with diagnoses of severe mood
disorders; and the remaining three experienced periodic paranoid
episodes, during which they would assault perceived enemies. Id.
at 585, and Table 3. Eight had suffered severe head injuries
during childhood, id. at 585, and Table 1, and nine
suffered from neurological abnormalities, id. at 585, and
Table 2. Psychoeducational testing showed that only 2 of these
death-row inmates had IQ scores above 90 (that is, in the normal
range) -- and both individuals suffered from psychiatric disorders
-- while 10 offenders showed impaired abstract reasoning on at
least some tests. Id. at 585-586, and Tables 3 and 4. All
but two of the adolescents had been physically abused, and five
sexually abused. Id. at 586-587, and Table 5. Within the
families of these children, violence, alcoholism, drug abuse, and
psychiatric disorders were commonplace. Id. at 587, and
Table 5.
The cases under consideration
today certainly do not suggest that individualized consideration
at transfer and sentencing [p399]
ensure that only exceptionally mature juveniles, as blameworthy
for their crimes as an adult, are sentenced to death. Transferring
jurisdiction over Kevin Stanford to Circuit Court, the Juvenile
Division of the Jefferson, Kentucky, District Court nevertheless
found that Stanford, who was 17 at the time of his crime,
has a low internalization
of the values and morals of society and lacks social skills.
That he does possess an institutionalized personality and has,
in effect, because of his chaotic family life and lack of
treatment, become socialized in delinquent behavior. That he is
emotionally immature, and could be amenable to treatment if
properly done on a long-term basis of psychotherap[eu]tic
intervention and reality-based therapy for socialization and
drug therapy in a residential facility.
App. in No. 87-5765, p. 9.
At the penalty phase of
Stanford's trial, witnesses testified that Stanford, who lived
with various relatives, had used drugs from the age of about 13,
and that his drug use had caused changes in his personality and
behavior. 10 Record in No. 87-5765, pp. 1383-1392, 1432. Stanford
had been placed at times in juvenile treatment facilities, and a
witness who had assessed him upon his admission to an employment
skills project found that he lacked age-appropriate social
interaction skills; had a history of drug abuse; and wanted for
family support or supervision. Id. at 1408; see also id.
at 1440-1442.
Heath Wilkins was 16 when he
committed the crime for which Missouri intends to kill him. The
juvenile court, in ordering him transferred for trial to adult
court, focused upon the viciousness of Wilkins' crime, the
juvenile system's inability to rehabilitate him in the 17 months
of juvenile confinement available, and the need to protect the
public, though it also mentioned that Wilkins was, in its view, "an
experienced person, and mature in his appearance and habits." App.
in No. 87-6026, p. 5. The Circuit Court found Wilkins
[p400] competent to stand trial.
[n12] Record in No. 87-6026, p. 42. Wilkins then
waived counsel, with the avowed intention of pleading guilty and
seeking the death penalty, id. at 42, 55, and the Circuit
Court accepted the waiver, id. at 84, and later Wilkins'
guilty plea, id. at 144-145. Wilkins was not represented by
counsel at sentencing. See id. at 188-190. Presenting no
mitigating evidence, he told the court he would prefer the death
penalty to life in prison, id. at 186-187 -- "[o]ne I fear,
the other one I don't," id. at 295 -- and after hearing
evidence from the State, the Court sentenced Wilkins to die.
Wilkins took no steps to appeal, and objected to an amicus'
efforts on his behalf. The Missouri Supreme Court, however,
ordered an evaluation to determine whether Wilkins was competent
to waive his right to appellate counsel. Concluding that Wilkins
was incompetent to waive his rights,
[n13] the state-appointed forensic psychiatrist
found that Wilkins "suffers from a mental disorder" that affects
his "reasoning and impairs his behavior." App. in No. 87-6026, p.
74. It would be incredible to suppose, given this psychiatrist's
conclusion and his summary of Wilkins' past, set out in the margin,
[n14] that Missouri's transfer and sentencing
schemes [p401] had operated to
identify in Wilkins a 16-year old mature and culpable beyond his
years.
C
Juveniles very generally lack
that degree of blameworthiness that is, in my view, a
constitutional prerequisite for the [p402]
imposition of capital punishment under our precedents concerning
the Eighth Amendment proportionality principle. The individualized
consideration of an offender's youth and culpability at the
transfer stage and at sentencing has not operated to ensure that
the only offenders under 18 singled out for the ultimate penalty
are exceptional individuals whose level of responsibility is more
developed than that of their peers. In that circumstance, I
believe that the same categorical assumption that juveniles as a
class are insufficiently mature to be regarded as fully
responsible that we make in so many other areas is appropriately
made in determining whether minors may be subjected to the death
penalty. As we noted in Thompson, 487 U.S. at 825-826, n.
23, it would be ironic if the assumptions we so readily make about
minors as a class were suddenly unavailable in conducting
proportionality analysis. I would hold that the Eighth Amendment
prohibits the execution of any person for a crime committed below
the age of 18.
IV
Under a second strand of
Eighth Amendment inquiry into whether a particular sentence is
excessive, and hence unconstitutional, we ask whether the sentence
makes a measurable contribution to acceptable goals of punishment.
Thompson, supra, at 833; Enmund v. Florida, 458 U.S.
at 798; Coker v. Georgia, 433 U.S. at 592; Gregg v.
Georgia, 428 U.S. at 173. The two "principal social purposes"
of capital punishment are said to be "retribution and the
deterrence of capital crimes by prospective offenders." Gregg,
supra, at 183; see Enmund, supra, at 798. Unless the
death penalty applied to persons for offenses committed under 18
measurably contributes to one of these goals, the Eighth Amendment
prohibits it. See ibid.
"[R]etribution
as a justification for executing [offenders] very much depends on
the degree of [their] culpability." Id. at 800. I have
explained in Part III, supra, why I believe juveniles lack
the culpability that makes a crime so extreme
[p403] that it may warrant, according to this Court's
cases, the death penalty; and why we should treat juveniles as a
class as exempt from the ultimate penalty. These same
considerations persuade me that executing juveniles "does not
measurably contribute to the retributive end of ensuring that the
criminal gets his just deserts." Id. at 801. See
Thompson, supra, at 836-837. A punishment that fails the
Eighth Amendment test of proportionality because disproportionate
to the offender's blameworthiness, by definition, is not justly
deserved.
IV
Nor does the execution of
juvenile offenders measurably contribute to the goal of deterrence.
Excluding juveniles from the class of persons eligible to receive
the death penalty will have little effect on any deterrent value
capital punishment may have for potential offenders who are over
18: these adult offenders may of course remain eligible for a
death sentence. The potential deterrent effect of juvenile
executions on adolescent offenders is also insignificant. The
deterrent value of capital punishment rests
on the assumption that we
are rational beings who always think before we act, and then
base our actions on a careful calculation of the gains and
losses involved.
Gardiner, The Purposes of
Criminal Punishment, 21 Mod.L.Rev. 117, 122 (1958). As the
plurality noted in Thompson, supra, at 837,
[t]he likelihood that the
teenage offender has made the kind of cost-benefit analysis that
attaches any weight to the possibility of execution is so remote
as to be virtually nonexistent.
First, juveniles "have less
capacity . . . to think in long-range terms than adults," Task
Force 7, and their careful weighing of a distant, uncertain, and
indeed highly unlikely consequence prior to action is most
improbable.
[n15] In addition, juveniles have little
[p404] fear of death, because they
have "a profound conviction of their own omnipotence and
immortality." Miller, Adolescent Suicide: Etiology and Treatment,
in 9 Adolescent Psychiatry 327, 329 (S. Feinstein, J. Looney, A.
Schwartzberg, & A. Sorosky eds. 1981). See also, e.g.,
Gordon, The Tattered Cloak of Immortality, in Adolescence and
Death 16, 27 (C. Corr & J. McNeil eds. 1986) (noting prevalence of
adolescent risk-taking); Brief for American Society for Adolescent
Psychiatry et al. as Amici Curiae 5-6 (citing
research). Because imposition of the death penalty on persons for
offenses committed under the age of 18 makes no measurable
contribution to the goals of either retribution or deterrence, it
is "nothing more than the purposeless and needless imposition of
pain and suffering," Coker, supra, at 592, and is thus
excessive and unconstitutional.
V
There are strong indications
that the execution of juvenile offenders violates contemporary
standards of decency: a majority of States decline to permit
juveniles to be sentenced to death; imposition of the sentence
upon minors is very unusual even in those States that permit it;
and respected organizations with expertise in relevant areas
regard the execution of juveniles as unacceptable, as does
international opinion. These indicators serve to confirm, in my
view, my conclusion that the Eighth Amendment prohibits the
execution of persons for offenses they committed while below the
age of 18, because the death penalty is disproportionate when
applied to such young offenders and fails measurably to serve the
goals of capital punishment. I dissent.
In addition, South Dakota,
though it statutorily provides for a death penalty, has sentenced
no one to death since Furman, arguably making a 28th State
that has abandoned the death penalty.
[Wilkins'] capacity to
manage and control affect is tenuous and inconsistent, leaving
him a subject to impulsive actions as well as arbitrary and
capricious thinking which is prone to skirt over details, and
considerations for logical systematic thought. He is intolerant
of intense affects such as anxiety, depression, or anger, in
that such feelings are overwhelming, interfere with his ability
to think clearly, and gives rise to impulsive action. He is
vulnerable to massive infusions of intense rage which leads to
spasms of destructive action. His rage commingles with a
profound depressive experience generated by an excruciating
sense of lonely alienation whereby he experiences both himself
and other people as being lifeless and empty. . . .
He barely experiences ties
to others or emp[athe]tic attunement . . . .
Id. at 22.
difficulty in establishing
a pattern of predictable response to stressful situations
vacillating between aggression towards others or self-destructive
activity.
Id. at 67-68. He had
been "exhibiting bizarre behavior, paranoid ideation, and
idiosyncratic thinking" since 1982. Id. at 68.
Mr. Wilkins . . . was
raised in a rather poor socioeconomic environment [and]
reportedly had extremely chaotic upbringing during his childhood.
He was physically abused by his mother, sometimes the beatings
would last for two hours. . . . As a child, he started robbing
houses for knives and money, and loved to set fires. Mr. Wilkins'
mother worked at night and slept during the day, thus the
children were left alone at night by themselves. He claims that
he was started on drugs by his uncle [at age six; see id.
at 67]. Apparently he used to shoot BB guns at passing cars. Mr.
Wilkins indicated that his mother's boyfriend had a quick temper,
and that he hated him. He also started disliking his mother, not
only because she punished [him], but also because she stood up
for her boyfriend, who was unkind towards [him]. He then decided
to poison his mother and boyfriend by placing rat poison in
Tylenol capsules. They were informed by his brother about the
situation. They secretly emptied the capsules and made him eat
them. He was afraid of death, and attempted vomiting by placing
[his] fingers in his throat. Then he ended up getting a beating
from his mother and boyfriend. At the age of ten, Mr. Wilkins
was evaluated at Tri-County Mental Health Center and Western
Missouri Mental Health Center. He stayed there for a period of
six months. He was then sent to Butterfield Youth's Home, and
then to East Range, a residential facility for boys. He started
using drugs quite heavily. . . . He also started drinking hard
liquor . . . .
At Butterfield, he was
very angry at the teachers because they considered him to be "dumb."
He showed rather strange behavior there. When he became
depressed, he would dance with a net over his head. On another
occasion, he cut his wrist and claimed to have had frequent
thoughts of suicide. Prior to going to Butterfield, he had
jumped off a bridge but the car swerved before he was hit. At
Butterfield, he attempted to overdose with alcohol and drugs,
and another time with antipsychotic medication, Mellaril. Mr.
Wilkins was placed on Mellaril because he was "too active." He
stayed at . . . Butterfield . . . for three and one half years
between the ages of 10 through 13 1/2. After that, he was
transferred to Crittenton Center, since it was closer to his
mother's residence. He stayed there only for four or five months,
and was then kicked out. The court gave him permission to go
home on probation. At this time, his mother had started seeing
another boyfriend, and Mr. Wilkins apparently liked him. He
continued the usage of alcohol and drugs while at school,
continued to break into houses stealing money, jewelry, and
knives, and generally stole money to spend at the arcade. On one
occasion, he ran away to Southern California. He was introduced
to amphetamines there, and spent all his money. . . . After his
return [home, he] was charged with a stolen knife and was sent
to [a] Detention Center . . . . At age 15, he was sent to the
Northwest Regional Youth Services in Kansas City. There, an
attempt at prescribing Thorazine (major tranquilizer) was made.
After this, Mr. Wilkins was placed in a foster home. He ran away
from the foster home . . . . Beginning in May of 1985, he lived
on the streets . . . .
* * * *
Records from Butterfield .
. . indicated that Mr. Wilkins' natural father was committed to
a mental institution in Arkansas, and there was considerable
amount of physical abuse that existed in the family. . . . In
the educational testing, he gave rather unusual responses. For
example, when asked the reasons why we need policemen, he
replied, "To get rid of people like me." He also revealed plans
to blow up a large building in Kansas City [and] made bizarre
derogatory sexual comments towards women prior to visits with
his mother. He had episodes of hyperventilation, and passed out
by fainting or chest squeezing. . . . On one occasion in
September of 1981, he put gasoline into a toilet and set fire to
it, causing an explosion. Mr. Wilkins' brother was diagnosed to
be suffering from schizophrenia when he was admitted along with
Mr. Wilkins in 1982 at Crittenton Center. Mr. Wilkins was often
noticed to be fantasizing about outer space and supernatural
powers. In the fall of 1982, [the Crittenton psychiatrist]
recommended placement on Mellaril because of a "disoriented
thinking pattern and high anxiety." In 1983, his condition
started deteriorating. . . . His final diagnoses in November of
1983, when he was discharged from Crittenton, were Borderline
Personality and Passive-Aggressive Personality. Psychological
testing at Crittenton indicated isolated episodes of paranoid
functioning.
Id. at 57-61.
[t]he adolescent lives in
an intense present; "now" is so real to him that both past and
future seem pallid by comparison. Everything that is important
and valuable in life lies either in the immediate life situation
or in the rather close future.
Ibid.
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