Roper v. Simmons

justiciapenaladolescente.blogspot.
com
ROPER V. SIMMONS (03-633) 543 U.S. 551 (2005)

112 S. W. 3d 397, affirmed.
SUPREME COURT OF THE UNITED STATES

ROPER, SUPERINTENDENT, POTOSI CORRECTIONAL
CENTER v. SIMMONS
CERTIORARI TO THE SUPREME COURT OF MISSOURI
No. 03—633.Argued October 13, 2004–Decided March 1, 2005
At age 17, respondent Simmons planned and committed a capital murder. After
he had turned 18, he was sentenced to death. His direct appeal and
subsequent petitions for state and federal postconviction relief were rejected.
This Court then held, in Atkins v. Virginia, 536 U.S. 304, that the Eighth
Amendment, applicable to the States through the Fourteenth Amendment,
prohibits the execution of a mentally retarded person. Simmons filed a new
petition for state postconviction relief, arguing that Atkins’ reasoning
established that the Constitution prohibits the execution of a juvenile who was
under 18 when he committed his crime. The Missouri Supreme Court agreed
and set aside Simmons’ death sentence in favor of life imprisonment without
eligibility for release. It held that, although Stanford v. Kentucky, 492 U.S. 361,
rejected the proposition that the Constitution bars capital punishment for
juvenile offenders younger than 18, a national consensus has developed
against the execution of those offenders since Stanford.
Held: The Eighth and Fourteenth Amendments forbid imposition of the death
penalty on offenders who were under the age of 18 when their crimes were
committed. Pp. 6—25.
(a) The Eighth Amendment’s prohibition against “cruel and unusual

punishments” must be interpreted according to its text, by considering history,
tradition, and precedent, and with due regard for its purpose and function in
the constitutional design. To implement this framework this Court has
established the propriety and affirmed the necessity of referring to “the
evolving standards of decency that mark the progress of a maturing society” to
determine which punishments are so disproportionate as to be “cruel and
unusual.” Trop v. Dulles, 356 U.S. 86, 100—101. In 1988,
in Thompson v. Oklahoma, 487 U.S. 815, 818—838, a plurality determined that
national standards of decency did not permit the execution of any offender
1
justiciapenaladolescente.blogspot.com
under age 16 at the time of the crime. The next year, in Stanford, a 5-to-4
Court referred to contemporary standards of decency, but concluded the Eighth
and Fourteenth Amendments did not proscribe the execution of offenders over
15 but under 18 because 22 of 37 death penalty States permitted that penalty
for 16-year-old offenders, and 25 permitted it for 17-year-olds, thereby
indicating there was no national consensus. 492 U.S., at 370—371. A plurality
also “emphatically reject[ed]” the suggestion that the Court should bring its
own judgment to bear on the acceptability of the juvenile death penalty. Id., at
377—378. That same day the Court held, in Penry v. Lynaugh, 492 U.S. 302,
334, that the Eighth Amendment did not mandate a categorical exemption
from the death penalty for mentally retarded persons because only two States
had enacted laws banning such executions. Three Terms ago
in Atkins, however, the Court held that standards of decency had evolved
since Penry and now demonstrated that the execution of the mentally retarded
is cruel and unusual punishment. The Atkins Court noted that objective indicia
of society’s standards, as expressed in pertinent legislative enactments and
state practice, demonstrated that such executions had become so truly
unusual that it was fair to say that a national consensus has developed against
them. 536 U.S., at 314—315. The Court also returned to the rule, established in
decisions predating Stanford, that the Constitution contemplates that the
Court’s own judgment be brought to bear on the question of the acceptability
of the death penalty. Id., at 312. After observing that mental retardation
diminishes personal culpability even if the offender can distinguish right from
wrong, id., at 318, and that mentally retarded offenders’ impairments make it
less defensible to impose the death penalty as retribution for past crimes or as
a real deterrent to future crimes, id., at 319—320, the Court ruled that the
death penalty constitutes an excessive sanction for the entire category of
mentally retarded offenders, and that the Eighth Amendment places a
substantive restriction on the State’s power to take such an offender’s
life, id., at 321. Just as the AtkinsCourt reconsidered the issue decided in Penry,
the Court now reconsiders the issue decided inStanford. Pp. 6—10.
(b) Both objective indicia of consensus, as expressed in particular by the

enactments of legislatures that have addressed the question, and the Court’s
own determination in the exercise of its independent judgment, demonstrate
that the death penalty is a disproportionate punishment for juveniles. Pp. 10—
21.
(1) As in Atkins, the objective indicia of national consensus here–the

rejection of the juvenile death penalty in the majority of States; the infrequency
of its use even where it remains on the books; and the consistency in the trend
toward abolition of the practice–provide sufficient evidence that today society
views juveniles, in the words Atkins used respecting the mentally retarded, as
2
“categorically less culpable than the average criminal,” 536 U.S., at 316. The
evidence of such consensus is similar, and in some respects parallel, to the
evidence inAtkins: 30 States prohibit the juvenile death penalty, including 12
that have rejected it altogether and 18 that maintain it but, by express
provision or judicial interpretation, exclude juveniles from its reach. Moreover,
even in the 20 States without a formal prohibition, the execution of juveniles is
infrequent. Although, by contrast to Atkins, the rate of change in reducing the
incidence of the juvenile death penalty, or in taking specific steps to abolish it,
has been less dramatic, the difference between this case and Atkins in that
respect is counterbalanced by the consistent direction of the change toward
abolition. Indeed, the slower pace here may be explained by the simple fact
that the impropriety of executing juveniles between 16 and 18 years old gained
wide recognition earlier than the impropriety of executing the mentally
retarded. Pp. 10—13.
(2) Reject ion of the imposition of the death penalty on juvenile offenders
under 18 is required by the Eighth Amendment. Capital punishment must be
limited to those offenders who commit “a narrow category of the most serious
crimes” and whose extreme culpability makes them “the most deserving of
execution.” Atkins, 536 U.S. at 319. Three general differences between
juveniles under 18 and adults demonstrate that juvenile offenders cannot with
reliability be classified among the worst offenders. Juveniles’ susceptibility to
immature and irresponsible behavior means “their irresponsible conduct is not
as morally reprehensible as that of an adult.” Thompson v. Oklahoma, 487 U.S.
815, 835. Their own vulnerability and comparative lack of control over their
immediate surroundings mean juveniles have a greater claim than adults to be
forgiven for failing to escape negative influences in their whole environment.
See Stanford, supra, at 395. The reality that juveniles still struggle to define
their identity means it is less supportable to conclude that even a heinous
crime committed by a juvenile is evidence of irretrievably depraved character.
The Thompson plurality recognized the import of these characteristics with
respect to juveniles under 16. 487 U.S., at 833—838. The same reasoning
applies to all juvenile offenders under 18. Once juveniles’ diminished culpability
is recognized, it is evident that neither of the two penological justifications for
the death penalty–retribution and deterrence of capital crimes by prospective
offenders, e.g., Atkins, 536 U.S., at 319–provides adequate justification for
imposing that penalty on juveniles. Although the Court cannot deny or overlook
the brutal crimes too many juvenile offenders have committed, it disagrees
with petitioner’s contention that, given the Court’s own insistence on
individualized consideration in capital sentencing, it is arbitrary and
unnecessary to adopt a categorical rule barring imposition of the death penalty
on an offender under 18. An unacceptable likelihood exists that the brutality or
cold-blooded nature of any particular crime would overpower mitigating
arguments based on youth as a matter of course, even where the juvenile
3
offender’s objective immaturity, vulnerability, and lack of true depravity should

require a sentence less severe than death. When a juvenile commits a heinous
crime, the State can exact forfeiture of some of the most basic liberties, but
the State cannot extinguish his life and his potential to attain a mature
understanding of his own humanity. While drawing the line at 18 is subject to
the objections always raised against categorical rules, that is the point where
society draws the line for many purposes between childhood and adulthood
and the age at which the line for death eligibility ought to rest. Stanford should
be deemed no longer controlling on this issue. Pp. 14—21.
(c) The overwhelming weight of international opinion against the juvenile

death penalty is not controlling here, but provides respected and significant
confirmation for the Court’s determination that the penalty is disproportionate
punishment for offenders under 18. See,e.g., Thompson, supra, at 830—831,
and n. 31. The United States is the only country in the world that continues to
give official sanction to the juvenile penalty. It does not lessen fidelity to the
Constitution or pride in its origins to acknowledge that the express affirmation
of certain fundamental rights by other nations and peoples underscores the
centrality of those same rights within our own heritage of freedom. Pp. 21—25.
112 S. W. 3d 397, affirmed.
Kennedy, J., delivered the opinion of the Court, in which Stevens, Souter, Ginsburg,
and Breyer, JJ., joined. Stevens, J., filed a concurring opinion, in which Ginsburg, J.,
joined. O’Connor, J., filed a dissenting opinion. Scalia, J., filed a dissenting opinion, in
which Rehnquist, C. J., and Thomas, J., joined.
4
Opinion of the Court
SUPREME COURT OF THE UNITED STATES
No. 03—633
DONALD P. ROPER, SUPERINTENDENT, POTOSI

CORRECTIONAL CENTER, PETITIONER v.
CHRISTOPHER SIMMONS
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

MISSOURI
[March 1, 2005]
Justice Kennedy delivered the opinion of the Court.
This case requires us to address, for the second time in a decade and a half,
whether it is permissible under the Eighth and Fourteenth Amendments to the
Constitution of the United States to execute a juvenile offender who was older
than 15 but younger than 18 when he committed a capital crime.
In Stanford v. Kentucky, 492 U.S. 361 (1989), a divided Court rejected the
proposition that the Constitution bars capital punishment for juvenile offenders
in this age group. We reconsider the question.
At the age of 17, when he was still a junior in high school, Christopher
Simmons, the respondent here, committed murder. About nine months later,
after he had turned 18, he was tried and sentenced to death. There is little
doubt that Simmons was the instigator of the crime. Before its commission
Simmons said he wanted to murder someone. In chilling, callous terms he
talked about his plan, discussing it for the most part with two friends, Charles
Benjamin and John Tessmer, then aged 15 and 16 respectively. Simmons
proposed to commit burglary and murder by breaking and entering, tying up a
victim, and throwing the victim off a bridge. Simmons assured his friends they
could “get away with it” because they were minors.
The three met at about 2 a.m. on the night of the murder, but Tessmer left
before the other two set out. (The State later charged Tessmer with conspiracy,
5
but dropped the charge in exchange for his testimony against Simmons.)
Simmons and Benjamin entered the home of the victim, Shirley Crook, after
reaching through an open window and unlocking the back door. Simmons
turned on a hallway light. Awakened, Mrs. Crook called out, “Who’s there?” In
response Simmons entered Mrs. Crook’s bedroom, where he recognized her
from a previous car accident involving them both. Simmons later admitted this
confirmed his resolve to murder her.
Using duct tape to cover her eyes and mouth and bind her hands, the two
perpetrators put Mrs. Crook in her minivan and drove to a state park. They
reinforced the bindings, covered her head with a towel, and walked her to a
railroad trestle spanning the Meramec River. There they tied her hands and
feet together with electrical wire, wrapped her whole face in duct tape and
threw her from the bridge, drowning her in the waters below.
By the afternoon of September 9, Steven Crook had returned home from an

overnight trip, found his bedroom in disarray, and reported his wife missing. On
the same afternoon fishermen recovered the victim’s body from the river.
Simmons, meanwhile, was bragging about the killing, telling friends he had
killed a woman “because the bitch seen my face.”
The next day, after receiving information of Simmons’ involvement, police

arrested him at his high school and took him to the police station in Fenton,
Missouri. They read him hisMiranda rights. Simmons waived his right to an
attorney and agreed to answer questions. After less than two hours of
interrogation, Simmons confessed to the murder and agreed to perform a
videotaped reenactment at the crime scene.
The State charged Simmons with burglary, kidnaping, stealing, and murder
in the first degree. As Simmons was 17 at the time of the crime, he was outside
the criminal jurisdiction of Missouri’s juvenile court system. See Mo. Rev. Stat.
§§211.021 (2000) and 211.031 (Supp. 2003). He was tried as an adult. At trial
the State introduced Simmons’ confession and the videotaped reenactment of
the crime, along with testimony that Simmons discussed the crime in advance
and bragged about it later. The defense called no witnesses in the guilt phase.
The jury having returned a verdict of murder, the trial proceeded to the penalty
phase.
The State sought the death penalty. As aggravating factors, the State
submitted that the murder was committed for the purpose of receiving money;
was committed for the purpose of avoiding, interfering with, or preventing
lawful arrest of the defendant; and involved depravity of mind and was
outrageously and wantonly vile, horrible, and inhuman. The State called Shirley
6
Crook’s husband, daughter, and two sisters, who presented moving evidence of
the devastation her death had brought to their lives.
In mitigation Simmons’ attorneys first called an officer of the Missouri

juvenile justice system, who testified that Simmons had no prior convictions
and that no previous charges had been filed against him. Simmons’ mother,
father, two younger half brothers, a neighbor, and a friend took the stand to
tell the jurors of the close relationships they had formed with Simmons and to
plead for mercy on his behalf. Simmons’ mother, in particular, testified to the
responsibility Simmons demonstrated in taking care of his two younger half
brothers and of his grandmother and to his capacity to show love for them.
During closing arguments, both the prosecutor and defense counsel

addressed Simmons’ age, which the trial judge had instructed the jurors they
could consider as a mitigating factor. Defense counsel reminded the jurors that
juveniles of Simmons’ age cannot drink, serve on juries, or even see certain
movies, because “the legislatures have wisely decided that individuals of a
certain age aren’t responsible enough.” Defense counsel argued that Simmons’
age should make “a huge difference to [the jurors] in deciding just exactly
what sort of punishment to make.” In rebuttal, the prosecutor gave the
following response: “Age, he says. Think about age. Seventeen years old. Isn’t
that scary? Doesn’t that scare you? Mitigating? Quite the contrary I submit.
Quite the contrary.”
The jury recommended the death penalty after finding the State had proved
each of the three aggravating factors submitted to it. Accepting the jury’s
recommendation, the trial judge imposed the death penalty.
Simmons obtained new counsel, who moved in the trial court to set aside the
conviction and sentence. One argument was that Simmons had received
ineffective assistance at trial. To support this contention, the new counsel
called as witnesses Simmons’ trial attorney, Simmons’ friends and neighbors,
and clinical psychologists who had evaluated him.
Part of the submission was that Simmons was “very immature,” “very
impulsive,” and “very susceptible to being manipulated or influenced.” The
experts testified about Simmons’ background including a difficult home
environment and dramatic changes in behavior, accompanied by poor school
performance in adolescence. Simmons was absent from home for long periods,
spending time using alcohol and drugs with other teenagers or young adults.
The contention by Simmons’ postconviction counsel was that these matters
should have been established in the sentencing proceeding.
7
The trial court found no constitutional violation by reason of ineffective

assistance of counsel and denied the motion for postconviction relief. In a
consolidated appeal from Simmons’ conviction and sentence, and from the
denial of postconviction relief, the Missouri Supreme Court
affirmed. State v. Simmons, 944 S. W. 2d 165, 169 (en banc), cert. denied, 522
U.S. 953(1997). The federal courts denied Simmons’ petition for a writ of
habeas corpus. Simmons v.Bowersox, 235 F.3d 1124, 1127 (CA8), cert.
denied, 534 U.S. 924 (2001).
After these proceedings in Simmons’ case had run their course, this Court
held that the Eighth and Fourteenth Amendments prohibit the execution of a
mentally retarded person. Atkins v. Virginia, 536 U.S. 304 (2002). Simmons
filed a new petition for state postconviction relief, arguing that the reasoning
of Atkins established that the Constitution prohibits the execution of a juvenile
who was under 18 when the crime was committed.
The Missouri Supreme Court agreed. State ex rel. Simmons v. Roper, 112
S. W. 3d 397 (2003) (en banc). It held that since Stanford,
“a national consensus has developed against the execution of juvenile

offenders, as demonstrated by the fact that eighteen states now bar such
executions for juveniles, that twelve other states bar executions altogether,
that no state has lowered its age of execution below 18 since Stanford, that
five states have legislatively or by case law raised or established the minimum
age at 18, and that the imposition of the juvenile death penalty has become
truly unusual over the last decade.” 112 S. W. 3d, at 399.
On this reasoning it set aside Simmons’ death sentence and resentenced him
to “life imprisonment without eligibility for probation, parole, or release except
by act of the Governor.” Id., at 413.
We granted certiorari, 540 U.S. 1160 (2004), and now affirm.
II
The Eighth Amendment provides: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” The
provision is applicable to the States through the Fourteenth Amendment.
Furman v. Georgia, 408 U.S. 238, 239 (1972) (per
curiam); Robinson v. California, 370 U.S. 660, 666—667 (1962); Louisiana ex
rel. Francis v.Resweber, 329 U.S. 459, 463 (1947) (plurality opinion). As the
Court explained in Atkins, theEighth Amendment guarantees individuals the
right not to be subjected to excessive sanctions. The right flows from the basic
8
“ ‘precept of justice that punishment for crime should be graduated and

proportioned to [the] offense.’ ” 536 U.S., at 311 (quoting Weems v. United
States, 217 U.S. 349, 367 (1910)). By protecting even those convicted of
heinous crimes, theEighth Amendment reaffirms the duty of the government to
respect the dignity of all persons.
The prohibition against “cruel and unusual punishments,” like other

expansive language in the Constitution, must be interpreted according to its
text, by considering history, tradition, and precedent, and with due regard for
its purpose and function in the constitutional design. To implement this
framework we have established the propriety and affirmed the necessity of
referring to “the evolving standards of decency that mark the progress of a
maturing society” to determine which punishments are so disproportionate as
to be cruel and unusual. Trop v.Dulles, 356 U.S. 86, 100—101 (1958) (plurality
opinion).
In Thompson v. Oklahoma, 487 U.S. 815 (1988), a plurality of the Court

determined that our standards of decency do not permit the execution of any
offender under the age of 16 at the time of the crime. Id., at 818—838 (opinion
of Stevens, J., joined by Brennan, Marshall, and Blackmun, JJ.). The plurality
opinion explained that no death penalty State that had given express
consideration to a minimum age for the death penalty had set the age lower
than 16.Id., at 826—829. The plurality also observed that “[t]he 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.” Id., at 830. The opinion further noted
that juries imposed the death penalty on offenders under 16 with exceeding
rarity; the last execution of an offender for a crime committed under the age of
16 had been carried out in 1948, 40 years prior. Id., at 832—833.
Bringing its independent judgment to bear on the permissibility of the death

penalty for a 15-year-old offender, the Thompson plurality stressed that “[t]he
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.” Id., at 835. According to the plurality, the
lesser culpability of offenders under 16 made the death penalty inappropriate
as a form of retribution, while the low likelihood that offenders under 16
engaged in “the kind of cost-benefit analysis that attaches any weight to the
possibility of execution” made the death penalty ineffective as a means of
deterrence. Id., at 836—838. With Justice O’Connor concurring in the judgment
on narrower grounds, id., at 848—859, the Court set aside the death sentence
9
that had been imposed on the 15-year-old

offender.
The next year, in Stanford v. Kentucky, 492 U.S. 361 (1989), the Court, over
a dissenting opinion joined by four Justices, referred to contemporary standards
of decency in this country and concluded the Eighth and Fourteenth
Amendments did not proscribe the execution of juvenile offenders over 15 but
under 18. The Court noted that 22 of the 37 death penalty States permitted the
death penalty for 16-year-old offenders, and, among these 37 States, 25
permitted it for 17-year-old offenders. These numbers, in the Court’s view,
indicated there was no national consensus “sufficient to label a particular
punishment cruel and unusual.” Id., at 370—371. A plurality of the Court also
“emphatically reject[ed]” the suggestion that the Court should bring its own
judgment to bear on the acceptability of the juvenile death penalty. Id., at 377
—378 (opinion of Scalia, J., joined by Rehnquist, C. J., and White and Kennedy,
JJ.); see also id., at 382 (O’Connor, J., concurring in part and concurring in
judgment) (criticizing the plurality’s refusal “to judge whether the ‘ “nexus
between the punishment imposed and the defendant’s blameworthiness” ’ is
proportional”).
The same day the Court decided Stanford, it held that the Eighth
Amendment did not mandate a categorical exemption from the death penalty
for the mentally retarded. Penry v.Lynaugh, 492 U.S. 302 (1989). In reaching
this conclusion it stressed that only two States had enacted laws banning the
imposition of the death penalty on a mentally retarded person convicted of a
capital offense. Id., at 334. According to the Court, “the two state statutes
prohibiting execution of the mentally retarded, even when added to the 14
States that have rejected capital punishment completely, [did] not provide
sufficient evidence at present of a national consensus.” Ibid.
Three Terms ago the subject was reconsidered in Atkins. We held that
standards of decency have evolved since Penry and now demonstrate that the
execution of the mentally retarded is cruel and unusual punishment. The Court
noted objective indicia of society’s standards, as expressed in legislative
enactments and state practice with respect to executions of the mentally
retarded. When Atkins was decided only a minority of States permitted the
practice, and even in those States it was rare. 536 U.S., at 314—315. On the
basis of these indicia the Court determined that executing mentally retarded
offenders “has become truly unusual, and it is fair to say that a national
consensus has developed against it.” Id., at 316.
The inquiry into our society’s evolving standards of decency did not end
there. The Atkin sCourt neither repeated nor relied upon the statement
10
in Stanford that the Court’s independent judgment has no bearing on the

acceptability of a particular punishment under the Eighth Amendment. Instead
we returned to the rule, established in decisions predating Stanford, that “ ‘the
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.’ ” 536 U.S., at 312 (quoting Coker v. Georgia, 433 U.S. 584, 597
(1977) (plurality opinion)). Mental retardation, the Court said, diminishes
personal culpability even if the offender can distinguish right from wrong. 536
U.S., at 318. The impairments of mentally retarded offenders make it less
defensible to impose the death penalty as retribution for past crimes and less
likely that the death penalty will have a real deterrent effect. Id., at 319—320.
Based on these considerations and on the finding of national consensus against
executing the mentally retarded, the Court ruled that the death penalty
constitutes an excessive sanction for the entire category of mentally retarded
offenders, and that the Eighth Amendment “ ‘places a substantive restriction
on the State’s power to take the life’ of a mentally retarded offender.”Id., at
321 (quoting Ford v. Wainwright, 477 U.S. 399, 405 (1986)).
Just as the Atkins Court reconsidered the issue decided in Penry, we now
reconsider the issue decided in Stanford. The beginning point is a review of
objective indicia of consensus, as expressed in particular by the enactments of
legislatures that have addressed the question. This data gives us essential
instruction. We then must determine, in the exercise of our own independent
judgment, whether the death penalty is a disproportionate punishment for
juveniles.
III
The evidence of national consensus against the death penalty for juveniles is
similar, and in some respects parallel, to the evidence Atkins held sufficient to
demonstrate a national consensus against the death penalty for the mentally
retarded. When Atkins was decided, 30 States prohibited the death penalty for
the mentally retarded. This number comprised 12 that had abandoned the
death penalty altogether, and 18 that maintained it but excluded the mentally
retarded from its reach. 536 U.S., at 313—315. By a similar calculation in this
case, 30 States prohibit the juvenile death penalty, comprising 12 that have
rejected the death penalty altogether and 18 that maintain it but, by express
provision or judicial interpretation, exclude juveniles from its reach. See
Appendix A, infra. Atkins emphasized that even in the 20 States without formal
prohibition, the practice of executing the mentally retarded was infrequent.
Since Penry, only five States had executed offenders known to have an IQ
11
under 70. 536 U.S., at 316. In the present case, too, even in the 20 States
without a formal prohibition on executing juveniles, the practice is infrequent.
Since Stanford, six States have executed prisoners for crimes committed as
juveniles. In the past 10 years, only three have done so: Okla-
homa, Texas, and Virginia. See V. Streib, The Juvenile Death Penalty Today:
Death Sentences and Executions
for Juvenile Crimes, January 1, 1973—December 31,
2004, No. 76, p. 4 (2005), available at http://www.law.
onu.edu/faculty/streib/documents/JuvDeathDec 2004.pdf
(last updated Jan. 31, 2005) (as visited Feb. 25, 2005, and available in the
Clerk of Court’s case file). In December 2003 the Governor of Kentucky decided
to spare the life of Kevin Stanford, and commuted his sentence to one of life
imprisonment without parole, with the declaration that “ ‘[w]e ought not be
executing people who, legally, were children.’ ” Lexington Herald Leader, Dec.
9, 2003, p. B3, 2003 WL 65043346. By this act the Governor ensured Kentucky
would not add itself to the list of States that have executed juveniles within the
last 10 years even by the execution of the very defendant whose death
sentence the Court had upheld in Stanford v. Kentucky.
There is, to be sure, at least one difference between the evidence of

consensus in Atkins and in this case. Impressive in Atkins was the rate of
abolition of the death penalty for the mentally retarded. Sixteen States that
permitted the execution of the mentally retarded at the time ofPenry had
prohibited the practice by the time we heard Atkins. By contrast, the rate of
change in reducing the incidence of the juvenile death penalty, or in taking
specific steps to abolish it, has been slower. Five States that allowed the
juvenile death penalty at the time of Stanfordhave abandoned it in the
intervening 15 years–four through legislative enactments and one through
judicial decision. Streib, supra, at 5, 7; State v. Furman, 122 Wash. 2d 400, 858
P.2d 1092 (1993) (en banc).
Though less dramatic than the change from Penry to Atkins (“telling,” to
borrow the wordAtkins used to describe this difference, 536 U.S., at 315, n. 18),
we still consider the change from Stanford to this case to be significant. As
noted in Atkins, with respect to the States that had abandoned the death
penalty for the mentally retarded since Penry, “[i]t is not so much the number
of these States that is significant, but the consistency of the direction of
change.” 536 U.S., at 315. In particular we found it significant that, in the wake
of Penry, no State that had already prohibited the execution of the mentally
retarded had passed legislation to reinstate the penalty. 536 U.S., at 315—316.
The number of States that have abandoned capital punishment for juvenile
offenders since Stanford is smaller than the number of States that abandoned
capital punishment for the mentally retarded after Penry; yet we think the
12
same consistency of direction of change has been demonstrated.

Since Stanford, no State that previously prohibited capital punishment for
juveniles has reinstated it. This fact, coupled with the trend toward abolition of
the juvenile death penalty, carries special force in light of the general
popularity of anticrime legislation, Atkins, supra, at 315, and in light of the
particular trend in recent years toward cracking down on juvenile crime in
other respects, see H. Snyder & M. Sickmund, National Center for Juvenile
Justice, Juvenile Offenders and Victims: 1999 National Report 89, 133 (Sept.
1999); Scott & Grisso, The Evolution of Adolescence: A Developmental
Perspective on Juvenile Justice Reform, 88 J. Crim. L. & C. 137, 148 (1997). Any
difference between this case and Atkins with respect to the pace of abolition is
thus counterbalanced by the consistent direction of the change.
The slower pace of abolition of the juvenile death penalty over the past 15
years, moreover, may have a simple explanation. When we heard Penry, only
two death penalty States had already prohibited the execution of the mentally
retarded. When we heard Stanford, by contrast, 12 death penalty States had
already prohibited the execution of any juvenile under 18, and 15 had
prohibited the execution of any juvenile under 17. If anything, this shows that
the impropriety of executing juveniles between 16 and 18 years of age gained
wide recognition earlier than the impropriety of executing the mentally
retarded. In the words of the Missouri Supreme Court: “It would be the ultimate
in irony if the very fact that the inappropriateness of the death penalty for
juveniles was broadly recognized sooner than it was recognized for the
mentally retarded were to become a reason to continue the execution of
juveniles now that the execution of the mentally retarded has been barred.”
112 S. W. 3d, at 408, n. 10.
Petitioner cannot show national consensus in favor of capital punishment for

juveniles but still resists the conclusion that any consensus exists against it.
Petitioner supports this position with, in particular, the observation that when
the Senate ratified the International Covenant on Civil and Political Rights
(ICCPR), Dec. 19, 1966, 999 U. N. T. S. 171 (entered into force Mar. 23, 1976),
it did so subject to the President’s proposed reservation regarding Article 6(5)
of that treaty, which prohibits capital punishment for juveniles. Brief for
Petitioner 27. This reservation at best provides only faint support for
petitioner’s argument. First, the reservation was passed in 1992; since then,
five States have abandoned capital punishment for juveniles. Second, Congress
considered the issue when enacting the Federal Death Penalty Act in 1994, and
determined that the death penalty should not extend to juveniles. See 18
U.S.C. § 3591. The reservation to Article 6(5) of the ICCPR provides minimal
evidence that there is not now a national consensus against juvenile
executions.
13
As in Atkins, the objective indicia of consensus in this case–the rejection of

the juvenile death penalty in the majority of States; the infrequency of its use
even where it remains on the books; and the consistency in the trend toward
abolition of the practice–provide sufficient evidence that today our society
views juveniles, in the words Atkins used respecting the mentally retarded, as
“categorically less culpable than the average criminal.” 536 U.S., at 316.
A majority of States have rejected the imposition of the death penalty on

juvenile offenders under 18, and we now hold this is required by the Eighth
Amendment.
Because the death penalty is the most severe punishment, the Eighth
Amendment applies to it with special force. Thompson, 487 U.S., at 856
(O’Connor, J., concurring in judgment). Capital punishment must be limited to
those offenders who commit “a narrow category of the most serious crimes”
and whose extreme culpability makes them “the most deserving of
execution.” Atkins, supra, at 319. This principle is implemented throughout the
capital sentencing process. States must give narrow and precise definition to
the aggravating factors that can result in a capital
sentence. Godfrey v. Georgia, 446 U.S. 420, 428—429 (1980) (plurality
opinion). In any capital case a defendant has wide latitude to raise as a
mitigating factor “any aspect of [his or her] character or record and any of the
circumstances of the offense that the defendant proffers as a basis for a
sentence less than death.” Lockett v. Ohio,438 U.S. 586, 604 (1978) (plurality
opinion); Eddings v. Oklahoma, 455 U.S. 104, 110—112 (1982); see
also Johnson v. Texas, 509 U.S. 350, 359—362 (1993) (summarizing the Court’s
jurisprudence after Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), with
respect to a sentencer’s consideration of aggravating and mitigating factors).
There are a number of crimes that beyond question are severe in absolute
terms, yet the death penalty may not be imposed for their
commission. Coker v. Georgia, 433 U.S. 584 (1977) (rape of an adult
woman); Enmundv. Florida, 458 U.S. 782 (1982) (felony murder where
defendant did not kill, attempt to kill, or intend to kill). The death penalty may
not be imposed on certain classes of offenders, such as juveniles under 16, the
insane, and the mentally retarded, no matter how heinous the
crime.Thompson v. Oklahoma, supra; Ford v. Wainwright, 477 U.S.
399 (1986); Atkins, supra. These rules vindicate the underlying principle that
the death penalty is reserved for a narrow category of crimes and offenders.
Three general differences between juveniles under 18 and adults

demonstrate that juvenile offenders cannot with reliability be classified among
14
the worst offenders. First, as any parent knows and as the scientific and
sociological studies respondent and his amici cite tend to confirm, “[a] lack of
maturity and an underdeveloped sense of responsibility are found in youth
more often than in adults and are more understandable among the young.
These qualities often result in impetuous and ill-considered actions and
decisions.” Johnson, supra, at 367; see alsoEddings, supra, at 115—116 (“Even
the normal 16-year-old customarily lacks the maturity of an adult”). It has been
noted that “adolescents are overrepresented statistically in virtually every
category of reckless behavior.” Arnett, Reckless Behavior in Adolescence: A
Developmental Perspective, 12 Developmental Review 339 (1992). In
recognition of the comparative immaturity and irresponsibility of juveniles,
almost every State prohibits those under 18 years of age from voting, serving
on juries, or marrying without parental consent. See Appendixes B—D, infra.
The second area of difference is that juveniles are more vulnerable or

susceptible to negative influences and outside pressures, including peer
pressure. Eddings, supra, at 115 (“[Y]outh 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”). This is explained in part by the
prevailing circumstance that juveniles have less control, or less experience
with control, over their own environment. See Steinberg & Scott, Less Guilty by
Reason of Adolescence: Developmental Immaturity, Diminished Responsibility,
and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003)
(hereinafter Steinberg & Scott) (“[A]s legal minors, [juveniles] lack the freedom
that adults have to extricate themselves from a criminogenic setting”).
The third broad difference is that the character of a juvenile is not as well
formed as that of an adult. The personality traits of juveniles are more
transitory, less fixed. See generally E. Erikson, Identity: Youth and Crisis
(1968).
These differences render suspect any conclusion that a juvenile falls among
the worst offenders. The susceptibility of juveniles to immature and
irresponsible behavior means “their irresponsible conduct is not as morally
reprehensible as that of an adult.” Thompson, supra, at 835 (plurality opinion).
Their own vulnerability and comparative lack of control over their immediate
surroundings mean juveniles have a greater claim than adults to be forgiven
for failing to escape negative influences in their whole environment.
See Stanford, 492 U.S., at 395 (Brennan, J., dissenting). The reality that
juveniles still struggle to define their identity means it is less supportable to
conclude that even a heinous crime committed by a juvenile is evidence of
irretrievably depraved character. From a moral standpoint it would be
misguided to equate the failings of a minor with those of an adult, for a greater
15
possibility exists that a minor’s character deficiencies will be reformed. Indeed,

“[t]he relevance of youth as a mitigating factor derives from the fact that the
signature qualities of youth are transient; as individuals mature, the
impetuousness and recklessness that may dominate in younger years can
subside.”Johnson, supra, at 368; see also Steinberg & Scott 1014 (“For most
teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as
individual identity becomes settled. Only a relatively small proportion of
adolescents who experiment in risky or illegal activities develop entrenched
patterns of problem behavior that persist into adulthood”).
In Thompson, a plurality of the Court recognized the import of these

characteristics with respect to juveniles under 16, and relied on them to hold
that the Eighth Amendment prohibited the imposition of the death penalty on
juveniles below that age. 487 U.S., at 833—838. We conclude the same
reasoning applies to all juvenile offenders under 18.
Once the diminished culpability of juveniles is recognized, it is evident that

the penological justifications for the death penalty apply to them with lesser
force than to adults. We have held there are two distinct social purposes
served by the death penalty: “ ‘retribution and deterrence of capital crimes by
prospective offenders.’ ” Atkins, 536 U.S., at 319
(quoting Gregg v.Georgia, 428 U.S. 153, 183 (1976) (joint opinion of Stewart,
Powell, and Stevens, JJ.)). As for retribution, we remarked in Atkins that “[i]f the
culpability of the average murderer is insufficient to justify the most extreme
sanction available to the State, the lesser culpability of the mentally retarded
offender surely does not merit that form of retribution.” 536 U.S., at 319. The
same conclusions follow from the lesser culpability of the juvenile offender.
Whether viewed as an attempt to express the community’s moral outrage or as
an attempt to right the balance for the wrong to the victim, the case for
retribution is not as strong with a minor as with an adult. Retribution is not
proportional if the law’s most severe penalty is imposed on one whose
culpability or blameworthiness is diminished, to a substantial degree, by reason
of youth and immaturity.
As for deterrence, it is unclear whether the death penalty has a significant or

even measurable deterrent effect on juveniles, as counsel for the petitioner
acknowledged at oral argument. Tr. of Oral Arg. 48. In general we leave to
legislatures the assessment of the efficacy of various criminal penalty
schemes, see Harmelin v. Michigan, 501 U.S. 957, 998—999 (1991) (Kennedy,
J., concurring in part and concurring in judgment). Here, however, the absence
of evidence of deterrent effect is of special concern because the same
characteristics that render juveniles less culpable than adults suggest as well
that juveniles will be less susceptible to deterrence. In particular, as the
16
plurality observed in Thompson, “[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.” 487 U.S., at
837. To the extent the juvenile death penalty might have residual deterrent
effect, it is worth noting that the punishment of life imprisonment without the
possibility of parole is itself a severe sanction, in particular for a young person.
In concluding that neither retribution nor deterrence provides adequate

justification for imposing the death penalty on juvenile offenders, we cannot
deny or overlook the brutal crimes too many juvenile offenders have
committed. See Brief for Alabama et al. as Amici Curiae. Certainly it can be
argued, although we by no means concede the point, that a rare case might
arise in which a juvenile offender has sufficient psychological maturity, and at
the same time demonstrates sufficient depravity, to merit a sentence of death.
Indeed, this possibility is the linchpin of one contention pressed by petitioner
and his amici. They assert that even assuming the truth of the observations we
have made about juveniles’ diminished culpability in general, jurors
nonetheless should be allowed to consider mitigating arguments related to
youth on a case-by-case basis, and in some cases to impose the death penalty
if justified. A central feature of death penalty sentencing is a particular
assessment of the circumstances of the crime and the characteristics of the
offender. The system is designed to consider both aggravating and mitigating
circumstances, including youth, in every case. Given this Court’s own
insistence on individualized consideration, petitioner maintains that it is both
arbitrary and unnecessary to adopt a categorical rule barring imposition of the
death penalty on any offender under 18 years of age.
We disagree. The differences between juvenile and adult offenders are too
marked and well understood to risk allowing a youthful person to receive the
death penalty despite insufficient culpability. An unacceptable likelihood exists
that the brutality or cold-blooded nature of any particular crime would
overpower mitigating arguments based on youth as a matter of course, even
where the juvenile offender’s objective immaturity, vulnerability, and lack of
true depravity should require a sentence less severe than death. In some cases
a defendant’s youth may even be counted against him. In this very case, as we
noted above, the prosecutor argued Simmons’ youth was aggravating rather
than mitigating. Supra, at 4. While this sort of overreaching could be corrected
by a particular rule to ensure that the mitigating force of youth is not
overlooked, that would not address our larger concerns.
It is difficult even for expert psychologists to differentiate between the

juvenile offender whose crime reflects unfortunate yet transient immaturity,
and the rare juvenile offender whose crime reflects irreparable corruption. See
17
Steinberg & Scott 1014—1016. As we understand it, this difficulty underlies the
rule forbidding psychiatrists from diagnosing any patient under 18 as having
antisocial personality disorder, a disorder also referred to as psychopathy or
sociopathy, and which is characterized by callousness, cynicism, and contempt
for the feelings, rights, and suffering of others. American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders 701—706
(4th ed. text rev. 2000); see also Steinberg & Scott 1015. If trained
psychiatrists with the advantage of clinical testing and observation refrain,
despite diagnostic expertise, from assessing any juvenile under 18 as having
antisocial personality disorder, we conclude that States should refrain from
asking jurors to issue a far graver condemnation–that a juvenile offender merits
the death penalty. When a juvenile offender commits a heinous crime, the
State can exact forfeiture of some of the most basic liberties, but the State
cannot extinguish his life and his potential to attain a mature understanding of
his own humanity.
Drawing the line at 18 years of age is subject, of course, to the objections

always raised against categorical rules. The qualities that distinguish juveniles
from adults do not disappear when an individual turns 18. By the same token,
some under 18 have already attained a level of maturity some adults will never
reach. For the reasons we have discussed, however, a line must be drawn. The
plurality opinion in Thompson drew the line at 16. In the intervening years
theThompson plurality’s conclusion that offenders under 16 may not be
executed has not been challenged. The logic of Thompson extends to those
who are under 18. The age of 18 is the point where society draws the line for
many purposes between childhood and adulthood. It is, we conclude, the age
at which the line for death eligibility ought to rest.
These considerations mean Stanford v. Kentucky should be deemed no

longer controlling on this issue. To the extent Stanford was based on review of
the objective indicia of consensus that obtained in 1989, 492 U.S., at 370—371,
it suffices to note that those indicia have changed. Supra, at 10—13. It should
be observed, furthermore, that the Stanford Court should have considered
those States that had abandoned the death penalty altogether as part of the
consensus against the juvenile death penalty, 492 U.S., at 370, n. 2; a State’s
decision to bar the death penalty altogether of necessity demonstrates a
judgment that the death penalty is inappropriate for all offenders, including
juveniles. Last, to the extent Stanford was based on a rejection of the idea that
this Court is required to bring its independent judgment to bear on the
proportionality of the death penalty for a particular class of crimes or
offenders, id., at 377—378 (plurality opinion), it suffices to note that this
rejection was inconsistent with priorEighth Amendment decisions, Thompson,
487 U.S., at 833—838 (plurality opinion); Enmund, 458 U.S., at 797; Coker, 433
18
U.S., at 597 (plurality opinion). It is also inconsistent with the premises of our
recent decision in Atkins. 536 U.S., at 312—313, 317—321.
In holding that the death penalty cannot be imposed upon juvenile

offenders, we take into account the circumstance that some States have relied
on Stanford in seeking the death penalty against juvenile offenders. This
consideration, however, does not outweigh our conclusion thatStanford should
no longer control in those few pending cases or in those yet to arise.
IV
Our determination that the death penalty is disproportionate punishment for

offenders under 18 finds confirmation in the stark reality that the United States
is the only country in the world that continues to give official sanction to the
juvenile death penalty. This reality does not become controlling, for the task of
interpreting the Eighth Amendment remains our responsibility. Yet at least
from the time of the Court’s decision in Trop, the Court has referred to the laws
of other countries and to international authorities as instructive for its
interpretation of the Eighth Amendment’s prohibition of “cruel and unusual
punishments.” 356 U.S., at 102—103 (plurality opinion) (“The civilized nations
of the world are in virtual unanimity that statelessness is not to be imposed as
punishment for crime”); see also Atkins, supra, at 317, n. 21 (recognizing that
“within the world community, the imposition of the death penalty for crimes
committed by mentally retarded offenders is overwhelmingly
disapproved”);Thompson, supra, at 830—831, and n. 31 (plurality opinion)
(noting the abolition of the juvenile death penalty “by other nations that share
our Anglo-American heritage, and by the leading members of the Western
European community,” and observing that “[w]e have previously recognized
the relevance of the views of the international community in determining
whether a punishment is cruel and unusual”); Enmund, supra, at 796—797,
n. 22 (observing that “the doctrine of felony murder has been abolished in
England and India, severely restricted in Canada and a number of other
Commonwealth countries, and is unknown in continental
Europe”);Coker, supra, at 596, n. 10 (plurality opinion) (“It is … not irrelevant
here that out of 60 major nations in the world surveyed in 1965, only 3
retained the death penalty for rape where death did not ensue”).
As respondent and a number of amici emphasize, Article 37 of the United

Nations Convention on the Rights of the Child, which every country in the world
has ratified save for the United States and Somalia, contains an express
prohibition on capital punishment for crimes committed
by juveniles under 18. United Nations Convention on
the Rights of the Child, Art. 37, Nov. 20, 1989, 1577
19
U. N. T. S. 3, 28 I. L. M. 1448, 1468—1470 (entered into force Sept. 2, 1990);

Brief for Respondent 48; Brief for European Union et al. as Amici Curiae 12—13;
Brief for President James Earl Carter, Jr., et al. as Amici Curiae 9; Brief for
Former U.S. Diplomats Morton Abramowitz et al. as Amici Curiae 7; Brief for
Human Rights Committee of the Bar of England and Wales et al. as Amici
Curiae 13—14. No ratifying country has entered a reservation to the provision
prohibiting the execution of juvenile offenders. Parallel prohibitions are
contained in other significant international covenants. See ICCPR, Art. 6(5), 999
U. N. T. S., at 175 (prohibiting capital punishment for anyone under 18 at the
time of offense) (signed and ratified by the United States subject to a
reservation regarding Article 6(5), as noted, supra, at 13); American
Convention on Human Rights: Pact of San José, Costa Rica, Art. 4(5), Nov. 22,
1969, 1144 U. N. T. S. 146 (entered into force July 19, 1978) (same); African
Charter on the Rights and Welfare of the Child, Art. 5(3), OAU Doc. CAB/LEG/
24.9/49 (1990) (entered into force Nov. 29, 1999) (same).
Respondent and his amici have submitted, and petitioner does not contest,
that only seven countries other than the United States have executed juvenile
offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the
Democratic Republic of Congo, and China. Since then each of these countries
has either abolished capital punishment for juveniles or made public disavowal
of the practice. Brief for Respondent 49—50. In sum, it is fair to say that the
United States now stands alone in a world that has turned its face against the
juvenile death penalty.
Though the international covenants prohibiting the juvenile death penalty

are of more recent date, it is instructive to note that the United Kingdom
abolished the juvenile death penalty before these covenants came into being.
The United Kingdom’s experience bears particular relevance here in light of the
historic ties between our countries and in light of the Eighth Amendment’s own
origins. The Amendment was modeled on a parallel provision in the English
Declaration of Rights of 1689, which provided: “[E]xcessive Bail ought not to be
required nor excessive Fines imposed; nor cruel and unusuall Punishments
inflicted.” 1 W. & M., ch. 2, §10, in 3 Eng. Stat. at Large 441 (1770); see
also Trop, supra, at 100 (plurality opinion). As of now, the United Kingdom has
abolished the death penalty in its entirety; but, decades before it took this
step, it recognized the disproportionate nature of the juvenile death penalty;
and it abolished that penalty as a separate matter. In 1930 an official
committee recommended that the minimum age for execution be raised to 21.
House of Commons Report from the Select Committee on Capital Punishment
(1930), 193, p. 44. Parliament then enacted the Children and Young Person’s
Act of 1933, 23 Geo. 5, ch. 12, which prevented execution of those aged 18 at
the date of the sentence. And in 1948, Parliament enacted the Criminal Justice
20
Act, 11 & 12 Geo. 6, ch. 58, prohibiting the execution of any person under 18 at
the time of the offense. In the 56 years that have passed since the United
Kingdom abolished the juvenile death penalty, the weight of authority against
it there, and in the international community, has become well established.
It is proper that we acknowledge the overwhelming weight of international

opinion against the juvenile death penalty, resting in large part on the
understanding that the instability and emotional imbalance of young people
may often be a factor in the crime. See Brief for Human Rights Committee of
the Bar of England and Wales
et al. as Amici Curiae 10—11. The opinion of the world community, while not
controlling our outcome, does provide respected and significant confirmation
for our own
conclusions.
Over time, from one generation to the next, the Constitution has come to
earn the high respect and even, as Madison dared to hope, the veneration of
the American people. See The Federalist No. 49, p. 314 (C. Rossiter ed. 1961).
The document sets forth, and rests upon, innovative principles original to the
American experience, such as federalism; a proven balance in political
mechanisms through separation of powers; specific guarantees for the accused
in criminal cases; and broad provisions to secure individual freedom and
preserve human dignity. These doctrines and guarantees are central to the
American experience and remain essential to our present-day self-definition
and national identity. Not the least of the reasons we honor the Constitution,
then, is because we know it to be our own. It does not lessen our fidelity to the
Constitution or our pride in its origins to acknowledge that the express
affirmation of certain fundamental rights by other nations and peoples simply
underscores the centrality of those same rights within our own heritage of
freedom.
***
The Eighth and Fourteenth Amendments forbid imposition of the death

penalty on offenders who were under the age of 18 when their crimes were
committed. The judgment of the Missouri Supreme Court setting aside the
sentence of death imposed upon Christopher Simmons is affirmed.
It is so ordered.
21
APPENDIX A TO OPINION OF THE COURT
I. STATES THAT PERMIT THE IMPOSITION OF THE DEATH PENALTY ON

JUVENILES
Alabama
Ala. Code §13A—6—2(c) (West 2004) (no express minimum age)
Arizona
Ariz. Rev. Stat. Ann. §13—703(A) (West Supp. 2004) (same)
Arkansas
Ark. Code Ann. §5—4—615 (Michie 1997) (same)
Delaware
Del. Code Ann., Tit. 11, (Lexis 1995) (same)
Florida
Fla. Stat. §985.225(1) (2003) (same)
Georgia
Ga. Code Ann. §17—9—3 (Lexis 2004) (same)
Idaho
Idaho Code §18—4004 (Michie 2004) (same)
Kentucky
Ky. Rev. Stat. Ann. §640.040(1) (Lexis 1999) (minimum age of 16)
Louisiana
La. Stat. Ann. §14:30(c) (West Supp. 2004) (no express minimum age)
Mississippi
Miss. Code Ann. §97—3—21 (Lexis 2000) (same)
Missouri
22
Mo. Rev. Stat. Ann. §565.020 (1999) (minimum age of 16)
Nevada
Nev. Rev. Stat. §176.025 (2003) (minimum age of 16)
New Hampshire
N. H. Rev. Stat. Ann. §630:1(V) (West 1996) (minimum age of 17)
North Carolina
N. C. Gen. Stat. §14—17 (Lexis 2003) (minimum age of 17, except that those under 17 who commit murder
while serving a prison sentence for a previous murder may receive the death penalty)
Oklahoma
Okla. Stat. Ann., Tit. 21, §701.10 (West 2002) (no express minimum age)
Pennsylvania
18 Pa. Cons. Stat. §1102 (2002) (same)
South Carolina
S. C. Code Ann. §16—3—20 (West Supp. 2003 and main ed.) (same)
Texas
Tex. Penal Code Ann. §8.07(c) (West 2003) (minimum age of 17)
Utah
Utah Code Ann. §76—3—206(1) (Lexis 2002) (no express minimum age)
Virginia
Va. Code Ann. §18.2—10(a) (Lexis Supp. 2003) (minimum age of 16)
II. STATES THAT RETAIN THE DEATH PENALTY, BUT SET THE MINIMUM AGE AT
18
California
Cal. Penal Code Ann. §190.5 (West 1999)
Colorado
23
Colo. Rev. Stat. §18—1.4—102(1)(a) (Lexis 2004)
Connecticut
Conn. Gen. Stat. Ann. §53a—46a(h) (West 2001)
Illinois
Ill. Comp. Stat. Ann., ch. 720, §5/9—1(b) (West Supp. 2004)
Indiana
Ind. Code Ann. §35—50—2—3 (1993)
Kansas
Kan. Stat. Ann. §21—4622 (1995)
Maryland
Md. Crim. Law Code Ann. §2—202(b)(2)(i) (Lexis 2002)
Montana
Mont. Code Ann. §45—5—102 (2003)
Nebraska
Neb. Rev. Stat. §28—105.01(1) (1995)
New Jersey
N. J. Stat. Ann. §2C:11—3(g) (West Supp. 2003)
New Mexico
N. M. Stat. Ann. §31—18—14(A) (West Supp. 2000)
New York
N. Y. Penal Law Ann. §125.27(West 2004)
Ohio
Ohio Rev. Code Ann. §2929.02(A) (Lexis 2003)
Oregon
24
Ore. Rev. Stat. §§161.620, 137.707(2) (1997)
South Dakota
2004 S. D. Laws ch. 166 to be codified in S. D. Codified Laws §23A—27A—42
Tennessee
Tenn. Code Ann. §37—1—134(a)(1) (Lexis 1996)
Washington
Minimum age of 18 established by judicial decision. State v. Furman, 122 Wash. 2d 440, 858 P.2d 1092
(1993)
Wyoming
Wyo. Stat. §6—2—101(b) (Lexis 2003)
***
During the past year, decisions by the highest courts of Kansas and New York
invalidated provisions in those States’ death penalty statutes. State v. Marsh,
___ Kan. ___, 102 P.3d 445 (2004) (invalidating provision that required
imposition of the death penalty if aggravating and mitigating circumstances
were found to be in equal balance); People v. LaValle, 3 N. Y. 3d 88, 817 N. E.
2d 341 (2004) (invalidating mandatory requirement to instruct the jury that, in
the case of jury deadlock as to the appropriate sentence in a capital case, the
defendant would receive a sentence of life imprisonment with parole eligibility
after serving a minimum of 20 to 25 years). Due to these decisions, it would
appear that in these States the death penalty remains on the books, but that
as a practical matter it might not be imposed on anyone until there is a change
of course in these decisions, or until the respective state legislatures remedy
the problems the courts have identified. Marsh, supra, at ___, ___, 102 p. 3d, at
452, 464;LaValle, supra, at 99, 817 N. E 2d, at 344.
III. STATES WITHOUT THE DEATH PENALTY
Alaska
Hawaii
Iowa
25
Maine
Massachusetts
Michigan
Minnesota
North Dakota
Rhode Island
Vermont
West Virginia
Wisconsin
APPENDIX B TO OPINION OF THE COURT
STATE STATUTES ESTABLISHING A MINIMUM AGE TO VOTE
STATE
AGE
STATUTE
Alabama
18
Ala. Const., Amdt. No. 579
Alaska
18
Alaska Const., Art. V, §1

Alaska Stat. §15—05—010 (Lexis 2002)
Arizona
18
Ariz. Const., Art. VII, §2

Ariz. Rev. Stat. §16—101 (West 1996)
26
Arkansas
18
Ark. Code Ann. §9—25—101 (Lexis 2002)
California
18
Cal. Const., Art. 2, §2
Colorado
18
Colo. Rev. Stat. §1—2—101 (Lexis 2004)
Connecticut
18
Conn. Const., Art. 6, §1

Conn. Gen. Stat. §9—12 (2003)
Delaware
18
Del. Code Ann., Tit. 15, §1701 (Michie 2002)
District of Columbia
18
D. C. Code §1—1001.02(2)(B) (West Supp. 2004)
Florida
18
Fla. Stat. ch. 97.041 (2003)
Georgia
18
27
Ga. Const., Art. 2, §1, ¶2

Ga. Code Ann. §21—2—216 (Lexis 2003)
Hawaii
Haw. Const., Art. II, §1

Haw. Rev. Stat. §11—12 (1995)
Idaho
18
Idaho Code §34—402 (Michie 2001)
Illinois
18
Ill. Const., Art. III, §1

Ill. Comp. Stat. Ann., ch. 10, §5/3—1 (West 2003)
Indiana
18
Ind. Code Ann. §3—7—13—1 (Lexis 1997)
Iowa
18
Iowa Code §48A.5 (2003)
Kansas
18
Kan. Const., Art. 5, §1
Kentucky
18
Ky. Const., §145
Louisiana
28
18
La. Const., Art. I, §10

La. Rev. Stat. Ann. §18:101 (West 2004)
Maine
18
Me. Const., Art. II, §1

Me. Rev. Stat. Ann., Tit. 21—A, §111 (West 1998 and Supp. 2004)
Maryland
18
Md. Elec. Law Code Ann. §3—102 (Lexis 2002)
Massachusetts
18
Mass. Gen. Laws Ann., ch. 51, §1 (West Supp. 2004)
Michigan
18
Mich. Comp. Laws Ann. §168.492 (West 1989)
Minnesota
18
Minn. Stat. §201.014(1)(a) (2002)
Mississippi
18
Miss. Const., Art. 12, §241
Missouri
18
29
Mo. Const., Art. VIII, §2
Montana
18
Mont. Const., Art. IV, §2

Mont. Code Ann. §13—1—111 (2003)
Nebraska
18
Neb. Const., Art. VI, §1

Neb. Rev. Stat. §32—110 (2004)
Nevada
18
Nev. Rev. Stat. §293.485 (2003)
New Hampshire
18
N. H. Const., Art., pt. 1, 11
New Jersey
18
N. J. Const., Art. II, §1, ¶3
New Mexico
18
[no provision other than U.S. Const., Amdt. XXVI]
New York
18
N. Y. Elec. Law Ann. §5—102 (West 1998)
North Carolina
30
18
N. C. Gen. Stat. Ann. §163—55 (Lexis 2003)
North Dakota
18
N. D. Const., Art. II, §1
Ohio
18
Ohio Const., Art. V, §1

Ohio Rev. Code Ann. §3503.01 (Anderson 1996)
Oklahoma
18
Okla. Const., Art. III, §1
Oregon
18
Ore. Const., Art. II, §2
Pennsylvania
18
25 Pa. Cons. Stat. Ann. §2811 (1994)
Rhode Island
18
R. I. Gen. Laws §17—1—3 (Lexis 2003)
South Carolina
18
S. C. Code Ann. §7—5—610 (West Supp. 2003)
31
South Dakota
18
S. D. Const., Art. VII, §2

S. D. Codified Laws Ann. §12—3—1 (Michie 1995)
Tennessee
18
Tenn. Code Ann. §2—2—102 (Lexis 2003)
Texas
18
Tex. Elec. Code Ann. §11.002 (West 2003)
Utah
18
Utah Const., Art. IV, §2

Utah Code Ann. §20A—2—101 (Lexis 2002)
Vermont
18
Vt. Stat. Ann., Tit. 17, §2121 (Lexis 2002)
Virginia
18
Va. Const., Art. II, §1
Washington
18
Wash. Const., Art. VI, §1
West Virginia
32
18
W. Va. Code §3—1—3 (Lexis 2002)
Wisconsin
18
Wis. Const., Art. III, §1

Wis. Stat. §6.02 (West 2004)
Wyoming
18
Wyo. Stat. Ann. §§22—1—102, 22—3—102 (West 2004)
***
The Twenty-Sixth Amendment to the Constitution of the United States provides that
“[t]he right of citizens of the United States, who are eighteen years of age or older, to
vote shall not be denied or abridged by the United States or by any State on account of
age.”
APPENDIX C TO OPINION OF THE COURT
STATE STATUTES ESTABLISHING A MINIMUM AGE FOR JURY SERVICE
STATE
AGE
STATUTE
Alabama
19
Ala. Code §12—16—60(a)(1) (West 2002)
Alaska
18
Alaska Stat. §09.20.010(a)(3) (Lexis 2002)
33
Arizona
18
Ariz. Rev. Stat. §21—301(D) (West 2002)
Arkansas
18
Ark. Code Ann. §§16—31—101, 16—32—302 (Lexis 2003)
California
18
Cal. Civ. Proc. §203(a)(2) (West Supp. 2004)
Colorado
18
Colo. Rev. Stat. §13—71—105(2)(a) (Lexis 2004)
Connecticut
18
Conn. Gen. Stat. Ann. §51—217(a) (West Supp. 2004)
Delaware
18
Del. Code Ann., Tit. 10, §4509(b)(2) (Michie 1999)
18
D. C. Code §11—1906(b)(1)(C) (West 2001)
Florida
18
34
Fla. Stat. §40.01 (2003)
Georgia
18
Ga. Code Ann. §§15—12—60, 15—12—163 (Lexis 2001)
Hawaii
18
Haw. Rev. Stat. §612—4(a)(1) (2003)
Idaho
18
Idaho Code §2—209(2)(a) (Michie 2003)
Illinois
18
Ill. Comp. Stat. Ann., ch. 705, §305/2 (West 2002)
Indiana
18
Ind. Code Ann. §33—28—4—8 (Lexis 2004)
Iowa
18
Iowa Code §607A.4(1)(a) (2003)
Kansas
18
Kan. Stat. Ann. §43—156 (2000) (jurors must be qualified to be electors); Kan. Const., Art. 5, §1 (person must
be 18 to be qualified elector)
Kentucky
35
18
Ky. Rev. Stat. Ann. §29A.080(2)(a) (Lexis Supp. 2004)
Louisiana
18
La. Code Crim. Proc. Ann., Art. 401(A)(2) (West 2003)
Maine
18
Me. Rev. Stat. Ann., Tit. 14, §1211 (West 1980)
Maryland
18
Md. Cts. & Jud. Proc. Code Ann. §8—104 (Lexis 2002)
Massachusetts
18
Mass. Gen. Laws. Ann., ch. 234, §1 (West 2000) (jurors must be qualified to vote); ch. 51, §1 (West Supp.
2004) (person must be 18 to vote)
Michigan
18
Mich. Comp. Laws Ann. §600.1307a(1)(a) (West Supp. 2004)
Minnesota
18
Minn. Dist. Ct. Rule 808(b)(2) (2002)
Mississippi
21
Miss. Code Ann. §13—5—1 (Lexis 2002)
36
Missouri
21
Mo. Rev. Stat. §494.425(1) (2000)
Montana
18
Mont. Code Ann. §3—15—301 (2003)
Nebraska
19
Neb. Rev. Stat. §25—1601 (Supp. 2003)
Nevada
18
Nev. Rev. Stat. §6.010 (2003) (juror must be qualified elector); §293.485 (person must be 18 to vote)
New Hampshire
18
N. H. Rev. Stat. Ann. §500—A:7—a(I) (Lexis Supp. 2004)
New Jersey
18
N. J. Stat. Ann. §2B:20—1(a) (West 2004 Pamphlet)
New Mexico
18
N. M. Stat. Ann. §38—5—1 (1998)
New York
18
37
N. Y. Jud. Law Ann. §510(2) (West 2003)
North Carolina
18
North Dakota
18
N. D. Cent. Code §27—09.1—08(2)(b) (Supp. 2003)
Ohio
18
Ohio Rev. Code Ann. §2313.42 (Anderson 2001)
Oklahoma
18
Okla. Stat. Ann., Tit. 38, §28 (West Supp. 2005)
Rhode Island
18
R. I. Gen. Laws §9—9—1.1(a)(2) (Lexis Supp. 2004)
South Carolina
18
South Dakota
18
S. D. Codified Laws §16—13—10 (Lexis Supp. 2003)
Tennessee
38
18
Tenn. Code Ann. §22—1—101 (Lexis Supp. 2003)
Texas
18
Tex. Govt. Code Ann. §62.102(1) (West 1998)
Utah
18
Utah Code Ann. §78—46—7(1)(b) (Lexis 2002)
Vermont
18
Vt. Stat. Ann., Tit. 4, §962(a)(1) (Lexis 1999); (jurors must have attained age of majority); Tit. 1, §173 (Lexis
2003) (age of majority is 18)
Virginia
18
Va. Code Ann. §8.01—337 (Lexis 2000)
Washington
18
Wash. Rev. Ann. Code §2.36.070 (West 2004)
West Virginia
18
W. Va. Code §52—1—8(b)(1) (Lexis 2000)
Wisconsin
18
Wis. Stat. §756.02 (West 2001)
39
Wyoming
18
Wyo. Stat. Ann. §1—11—101 (Lexis 2003) (jurors must be adults); §14—1—101 (person becomes an adult at
18)
APPENDIX D TO OPINION OF THE COURT
STATE STATUTES ESTABLISHING A MINIMUM AGE FOR MARRIAGE WITHOUT

PARENTAL OR JUDICIAL CONSENT
STATE
AGE
STATUTE
Alabama
18
Ala. Code §30—1—5 (West Supp. 2004)
Alaska
18
Alaska Stat. §§25.05.011, 25.05.171 (Lexis 2002)
Arizona
18
Ariz. Rev. Stat. Ann. §25—102 (West Supp. 2004)
Arkansas
18
Ark. Code Ann. §§9—11—102, 9—11—208 (Lexis 2002)
California
18
40
Cal. Fam. Code Ann. §301 (West 2004)
Colorado
18
Colo. Rev. Stat. Ann. §14—2—106 (Lexis 2004)
Connecticut
18
Conn. Gen. Stat. §46b—30 (2003)
Delaware
18
Del. Code Ann., Tit. 13, §123 (Lexis 1999)
18
D. C. Code §46—411 (West 2001)
Florida
18
Fla. Stat. §§741.04, 741.0405 (2003)
Georgia
16
Ga. Code Ann. §§19—3—2, 19—3—37 (Lexis 2004) (those under 18 must obtain parental consent unless
female applicant is pregnant or both applicants are parents of a living child, in which case minimum age to
marry without consent is 16)
Hawaii
18
Haw. Rev. Stat. §572—2 (1993)
Idaho
41
18
Idaho Code §32—202 (Michie 1996)
Illinois
18
Ill. Comp. Stat. Ann., ch. 750, §5/203 (West 1999)
Indiana
18
Ind. Code Ann. §§31—11—1—4, 31—11—1—5, 31—11—2—1, 31—11—2—3 (Lexis 1997)
Iowa
18
Iowa Code §595.2 (2003)
Kansas
18
Kan. Stat. Ann. §23—106 (Supp. 2003)
Kentucky
18
Ky. Rev. Stat. Ann. §§402.020, 402.210 (Lexis 1999)
Louisiana
18
La. Children’s Code Ann., Arts. 1545, 1547 (West 2004) (minors may not marry without consent); La. Civ.
Code Ann., Art. 29 (West 1999) (age of majority is 18)
Maine
18
Me. Rev. Stat. Ann., Tit. 19—A, §652 (West 1998 and Supp. 2004)
42
Maryland
16
Md. Fam. Law Code Ann. §2—301 (Lexis 2004) (those under 18 must obtain parental consent unless female
applicant can present proof of pregnancy or a child, in which case minimum age to marry without consent is
16)
Massachusetts
18
Mass. Gen. Laws Ann., ch. 207, §§7, 24, 25 (West 1998)
Michigan
18
Mich. Comp. Laws Ann. §551.103 (West 1988)
Minnesota
18
Minn. Stat. §517.02 (2002)
Mississippi
15/17
Miss. Code Ann. §93—1—5 (Lexis 2004) (female applicants must be 15; male applicants must be 17)
Missouri
18
Mo. Rev. Stat. §451.090 (2000)
Montana
18
Mont. Code Ann. §§40—1—202, 40—1—213 (2003)
Nebraska
43
19
Neb. Rev. Stat. §42—105 (2004) (minors must have parental consent to marry); §43—2101 (defining “minor”
as a person under 19)
Nevada
18
Nev. Rev. Stat. §122.020 (2003)
New Hampshire
18
N. H. Rev. Stat. Ann. §457:5 (West 1992)
New Jersey
18
N. J. Stat. Ann. §37:1—6 (West 2002)
New Mexico
18
N. M. Stat. Ann. §40—1—6 (1999)
New York
18
N. Y. Dom. Rel. Law Ann. §15 (West Supp. 2004)
North Carolina
18
North Dakota
18
N. D. Cent. Code §14—03—02 (Lexis 2004)
44
Ohio
18
Ohio Rev. Code Ann. §3101.01 (Lexis 2003)
Oklahoma
18
Okla. Stat. Ann., Tit. 43, §3 (West Supp. 2005)
Oregon
18
Ore. Rev. Stat. §106.060 (2003)
Pennsylvania
18
23 Pa. Cons. Stat. §1304 (1997)
Rhode Island
18
R. I. Gen. Laws §15—2—11 (Lexis Supp. 2004)
South Carolina
18
South Dakota
18
S. D. Codified Laws §25—1—9 (Lexis 1999)
Tennessee
18
45
Tenn. Code Ann. §36—3—106 (Lexis 1996)
Texas
18
Tex. Fam. Code Ann. §§2.101—2.103 (West 1998)
Utah
18
Utah Code Ann. §30—1—9 (Lexis Supp. 2004)
Vermont
18
Vt. Stat. Ann., Tit. 18, §5142 (Lexis 2000)
Virginia
18
Va. Code Ann. §§20—45.1, 20—48, 20—49 (Lexis 2004)
Washington
18
Wash. Rev. Code Ann. §26.04.210 (West Supp. 2005)
West Virginia
18
W. Va. Code §48—2—301 (Lexis 2004)
Wisconsin
18
Wis. Stat. §765.02 (1999—2000)
Wyoming
46
18
Wyo. Stat. Ann. §20—1—102 (Lexis 2003)
47
Justice Stevens, with whom Justice Ginsburg joins, concurring.
Perhaps even more important than our specific holding today is our
reaffirmation of the basic principle that informs the Court’s interpretation of
the Eighth Amendment. If the meaning of that Amendment had been frozen
when it was originally drafted, it would impose no impediment to the execution
of 7-year-old children today. See Stanford v. Kentucky, 492 U.S. 361, 368
(1989) (describing the common law at the time of the Amendment’s adoption).
The evolving standards of decency that have driven our construction of this
critically important part of the Bill of Rights foreclose any such reading of the
Amendment. In the best tradition of the common law, the pace of that
evolution is a matter for continuing debate; but that our understanding of the
Constitution does change from time to time has been settled since John
Marshall breathed life into its text. If great lawyers of his day–Alexander
Hamilton, for example–were sitting with us today, I would expect them to join
Justice Kennedy’s opinion for the Court. In all events, I do so without hesitation.
48
Justice O’Connor, dissenting.
The Court’s decision today establishes a categorical rule forbidding the

execution of any offender for any crime committed before his 18th birthday, no
matter how deliberate, wanton, or cruel the offense. Neither the objective
evidence of contemporary societal values, nor the Court’s moral proportionality
analysis, nor the two in tandem suffice to justify this ruling.
Although the Court finds support for its decision in the fact that a majority of
the States now disallow capital punishment of 17-year-old offenders, it refrains
from asserting that its holding is compelled by a genuine national consensus.
Indeed, the evidence before us fails to demonstrate conclusively that any such
consensus has emerged in the brief period since we upheld the
constitutionality of this practice in Stanford v. Kentucky, 492 U.S. 361 (1989).
Instead, the rule decreed by the Court rests, ultimately, on its independent
moral judgment that death is a disproportionately severe punishment for any
17-year-old offender. I do not subscribe to this judgment. Adolescents as a
class are undoubtedly less mature, and therefore less culpable for their
misconduct, than adults. But the Court has adduced no evidence impeaching
the seemingly reasonable conclusion reached by many state legislatures: that
at least some 17-year-old murderers are sufficiently mature to deserve the
death penalty in an appropriate case. Nor has it been shown that capital
sentencing juries are incapable of accurately assessing a youthful defendant’s
maturity or of giving due weight to the mitigating characteristics associated
with youth.
On this record–and especially in light of the fact that so little has changed
since our recent decision in Stanford–I would not substitute our judgment about
the moral propriety of capital punishment for 17-year-old murderers for the
judgments of the Nation’s legislatures. Rather, I would demand a clearer
showing that our society truly has set its face against this practice before
reading the Eighth Amendment categorically to forbid it.
Let me begin by making clear that I agree with much of the Court’s
description of the general principles that guide our Eighth
Amendment jurisprudence. The Amendment bars not only punishments that
are inherently “ ‘barbaric,’ ” but also those that are “ ‘ excessive’ in relation to
49
the crime committed. ” Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality
opinion). A sanction is therefore beyond the state’s authority to inflict if it
makes “no measurable contribution” to acceptable penal goals or is “grossly
out of proportion to the severity of the crime.” Ibid. The basic “precept of
justice that punishment for crime should be … proportioned to [the]
offense,” Weems v. United States, 217 U.S. 349, 367 (1910), applies with
special force to the death penalty. In capital cases, the Constitution demands
that the punishment be tailored both to the nature of the crime itself and to the
defendant’s “personal responsibility and moral guilt.” Enmund v. Florida, 458
U.S. 782, 801 (1982); see also id., at 825 (O’Connor, J.,
dissenting); Tison v. Arizona, 481 U.S. 137, 149
(1987); Eddings v.Oklahoma, 455 U.S. 104, 111—112 (1982).
It is by now beyond serious dispute that the Eighth Amendment’s prohibition

of “cruel and unusual punishments” is not a static command. Its mandate
would be little more than a dead letter today if it barred only those sanctions–
like the execution of children under the age of seven–that civilized society had
already repudiated in 1791. See ante, at 1 (Stevens, J., concurring);
cf. Stanford, supra, at 368 (discussing the common law rule at the time the Bill
of Rights was adopted). Rather, because “[t]he basic concept underlying
the Eighth Amendment is nothing less than the dignity of man,” the
Amendment “must draw its meaning from the evolving standards of decency
that mark the progress of a maturing society.” Trop v. Dulles,356 U.S. 86, 100
—101 (1958) (plurality opinion). In discerning those standards, we look to
“objective factors to the maximum possible extent.” Coker, supra, at 592
(plurality opinion). Laws enacted by the Nation’s legislatures provide the
“clearest and most reliable objective evidence of contemporary
values.” Penry v. Lynaugh, 492 U.S. 302, 331 (1989). And data reflecting the
actions of sentencing juries, where available, can also afford “ ‘a significant
and reliable objective index’ ” of societal mores. Coker, supra, at 596 (plurality
opinion) (quotingGregg v. Georgia, 428 U.S. 153, 181 (1976)) (joint opinion of
Stewart, Powell, and Stevens, JJ.).
Although objective evidence of this nature is entitled to great weight, it does

not end our inquiry. Rather, as the Court today reaffirms, see ante, at 9, 20—
21, “the 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, supra, at 597 (plurality opinion).
“[P]roportionality–at least as regards capital punishment–not only requires an
inquiry into contemporary standards as expressed by legislators and jurors, but
also involves the notion that the magnitude of the punishment imposed must
be related to the degree of the harm inflicted on the victim, as well as to the
degree of the defendant’s blameworthiness.” Enmund,supra, at 815 (O’Connor,
50
J., dissenting). We therefore have a “constitutional obligation” to judge for

ourselves whether the death penalty is excessive punishment for a particular
offense or class of offenders. See Stanford, 492 U.S., at 382 (O’Connor, J.,
concurring in part and concurring in judgment); see also Enmund, supra, at 797
(“[I]t is for us ultimately to judge whether the Eighth Amendment permits
imposition of the death penalty”).
Twice in the last two decades, the Court has applied these principles in
deciding whether theEighth Amendment permits capital punishment of
adolescent offenders. In Thompson v.Oklahoma, 487 U.S. 815 (1988), a
plurality of four Justices concluded that the Eighth Amendment barred capital
punishment of an offender for a crime committed before the age of 16. I
concurred in that judgment on narrower grounds. At the time, 32 state
legislatures had “definitely concluded that no 15-year-old should be exposed to
the threat of execution,” and no legislature had affirmatively endorsed such a
practice. Id., at 849 (O’Connor, J., concurring in judgment). While
acknowledging that a national consensus forbidding the execution of 15-year-
old offenders “very likely” did exist, I declined to adopt that conclusion as a
matter of constitutional law without clearer evidentiary support. Ibid. Nor, in
my view, could the issue be decided based on moral proportionality arguments
of the type advanced by the Court today. Granting the premise “that
adolescents are generally less blameworthy than adults who commit similar
crimes,” I wrote, “it does not necessarily follow that all 15-year-olds are
incapable of the moral culpability that would justify the imposition of capital
punishment.” Id., at 853. Similarly, we had before us no evidence “that 15-
year-olds as a class are inherently incapable of being deterred from major
crimes by the prospect of the death penalty.” Ibid. I determined instead that, in
light of the strong but inconclusive evidence of a national consensus against
capital punishment of under-16 offenders, concerns rooted in the Eighth
Amendment required that we apply a clear statement rule. Because the capital
punishment statute in Thompson did not specify the minimum age at which
commission of a capital crime would be punishable by death, I concluded that
the statute could not be read to authorize the death penalty for a 15-year-old
offender. Id., at 857—858.
The next year, in Stanford v. Kentucky, supra, the Court held that the
execution of 16- or 17-year-old capital murderers did not violate the Eighth
Amendment. I again wrote separately, concurring in part and concurring in the
judgment. At that time, 25 States did not permit the execution of under-18
offenders, including 13 that lacked the death penalty altogether. See id., at
370. While noting that “[t]he day may come when there is such general
51
legislative rejection of the execution of 16- or 17-year-old capital murderers

that a clear national consensus can be said to have developed,” I concluded
that that day had not yet arrived. Id., at 381—382 (opinion concurring in part
and concurring in judgment). I reaffirmed my view that, beyond assessing the
actions of legislatures and juries, the Court has a constitutional obligation to
judge for itself whether capital punishment is a proportionate response to the
defendant’s blameworthiness. Id., at 382. Nevertheless, I concluded that
proportionality arguments similar to those endorsed by the Court today did not
justify a categorical Eighth Amendment rule against capital punishment of 16-
and 17-year-old offenders. See ibid. (citing Thompson, supra, at 853—854
(O’Connor, J., concurring in judgment)).
The Court has also twice addressed the constitutionality of capital

punishment of mentally retarded offenders. In Penry v. Lynaugh, 492 U.S.
302 (1989), decided the same year asStanford, we rejected the claim that
the Eighth Amendment barred the execution of the mentally retarded. At that
time, only two States specifically prohibited the practice, while 14 others did
not have capital punishment at all. 492 U.S., at 334. Much had changed when
we revisited the question three Terms ago in Atkins v. Virginia, 536 U.S.
304 (2002). In Atkins,the Court reversed Penry and held that the Eighth
Amendment forbids capital punishment of mentally retarded offenders. 536
U.S., at 321. In the 13 years between Penry and Atkins, there had been a wave
of legislation prohibiting the execution of such offenders. By the time we
heard Atkins, 30 States barred the death penalty for the mentally retarded, and
even among those States theoretically permitting such punishment, very few
had executed a mentally retarded offender in recent history. 536 U.S., at 314—
316. On the basis of this evidence, the Court determined that it was “fair to say
that a national consensus ha[d] developed against” the practice. Id., at 316.
But our decision in Atkins did not rest solely on this tentative conclusion.
Rather, the Court’s independent moral judgment was dispositive. The Court
observed that mentally retarded persons suffer from major cognitive and
behavioral deficits, i.e., “subaverage intellectual functioning” and “significant
limitations in adaptive skills such as communication, self-care, and self-
direction that became manifest before age 18.” Id., at 318. “Because of their
impairments, [such persons] by definition … have diminished capacities to
understand and process information, to communicate, to abstract from
mistakes and learn from experience, to engage in logical reasoning, to control
impulses, and to understand the reactions of others.”Ibid. We concluded that
these deficits called into serious doubt whether the execution of mentally
retarded offenders would measurably contribute to the principal penological
goals that capital punishment is intended to serve–retribution and deterrence.
Id., at 319—321. Mentally retarded offenders’ impairments so diminish their
52
personal moral culpability that it is highly unlikely that such offenders could
ever deserve the ultimate punishment, even in cases of capital murder. Id., at
319. And these same impairments made it very improbable that the threat of
the death penalty would deter mentally retarded persons from committing
capital crimes. Id., at 319—320. Having concluded that capital punishment of
the mentally retarded is inconsistent with the Eighth Amendment, the Court
“ ‘le[ft] to the State[s] the task of developing appropriate ways to enforce the
constitutional restriction upon [their] execution of sentences.’ ” Id., at 317
(quoting Ford v. Wainwright, 477 U.S. 399, 416—417 (1986)).
II
Although the general principles that guide our Eighth

Amendment jurisprudence afford some common ground, I part ways with the
Court in applying them to the case before us. As a preliminary matter, I take
issue with the Court’s failure to reprove, or even to acknowledge, the Supreme
Court of Missouri’s unabashed refusal to follow our controlling decision
inStanford. The lower court concluded that, despite Stanford’s clear holding
and historical recency, our decision was no longer binding authority because it
was premised on what the court deemed an obsolete assessment of
contemporary values. Quite apart from the merits of the constitutional
question, this was clear error.
Because the Eighth Amendment “draw[s] its meaning from … evolving

standards of decency,” Trop, 356 U.S., at 101 (plurality opinion), significant
changes in societal mores over time may require us to reevaluate a prior
decision. Nevertheless, it remains “this Court’s prerogative alone to overrule
one of its precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (emphasis
added). That is so even where subsequent decisions or factual developments
may appear to have “significantly undermined” the rationale for our earlier
holding. United States v. Hatter, 532 U.S. 557, 567 (2001); see also State Oil
Co., supra, at 20; Rodriguez de Quijas v. Shearson/American Express, Inc., 490
U.S. 477, 484 (1989). The Eighth Amendmentprovides no exception to this rule.
On the contrary, clear, predictable, and uniform constitutional standards are
especially desirable in this sphere. By affirming the lower court’s judgment
without so much as a slap on the hand, today’s decision threatens to invite
frequent and disruptive reassessments of our Eighth Amendment precedents.
53
In determining whether the juvenile death penalty comports with

contemporary standards of decency, our inquiry begins with the “clearest and
most reliable objective evidence of contemporary values”–the actions of the
Nation’s legislatures. Penry, supra, at 331. As the Court emphasizes, the overall
number of jurisdictions that currently disallow the execution of under-18
offenders is the same as the number that forbade the execution of mentally
retarded offenders when Atkins was decided. Ante, at 10. At present, 12 States
and the District of Columbia do not have the death penalty, while an additional
18 States and the Federal Government authorize capital punishment but
prohibit the execution of under-18 offenders. Seeante, at 27—28 (Appendix A).
And here, as in Atkins, only a very small fraction of the States that permit
capital punishment of offenders within the relevant class has actually carried
out such an execution in recent history: Six States have executed under-18
offenders in the 16 years since Stanford, while five States had executed
mentally retarded offenders in the 13 years prior to
Atkins. See Atkins, 536 U.S., at 316; V. Streib, The
Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile
Crimes, January 1, 1973—December 31, 2004, No. 76, pp. 15—23 (2005),
available
at http://www.law.onu.edu/faculty/streib/documents/Juv
DeathDec 2004.pdf (last updated Jan. 31, 2005) (as visited Feb. 25, 2005, and
available in the Clerk of the Court’s case file) (hereinafter Streib). In these
respects, the objective evidence in this case is, indeed, “similar, and in some
respects parallel to” the evidence upon which we relied in Atkins. Ante, at 10.
While the similarities between the two cases are undeniable, the objective
evidence of national consensus is marginally weaker here. Most importantly,
in Atkins there was significant evidence of opposition to the execution of the
mentally retarded, but there was virtually no countervailing evidence of
affirmative legislative support for this practice. Cf. Thompson, 487 U.S., at 849
(O’Connor, J., concurring in judgment) (attributing significance to the fact that
“no legislature in this country has affirmatively and unequivocally endorsed”
capital punishment of 15-year-old offenders). The States that permitted such
executions did so only because they had not enacted any prohibitory
legislation. Here, by contrast, at least eight States have current statutes that
specifically set 16 or 17 as the minimum age at which commission of a capital
crime can expose the offender to the death penalty. See ante, at 26 (Appendix
A).* Five of these eight States presently have one or more juvenile offenders on
death row (six if respondent is included in the count), see Streib 24—31, and
four of them have executed at least one under-18 offender in the past 15
years, see id., at 15—23. In all, there are currently over 70 juvenile offenders
on death row in 12 different States (13 including respondent). See id., at 11, 24
—31. This evidence suggests some measure of continuing public support for
the availability of the death penalty for 17-year-old capital murderers.
54
Moreover, the Court in Atkins made clear that it was “not so much the
number of [States forbidding execution of the mentally retarded] that [was]
significant, but the consistency of the direction of change.” 536 U.S., at 315. In
contrast to the trend in Atkins, the States have not moved uniformly towards
abolishing the juvenile death penalty. Instead, since our decision inStanford,
two States have expressly reaffirmed their support for this practice by enacting
statutes setting 16 as the minimum age for capital punishment. See Mo. Rev.
Stat. §565.020.2 (2000); Va. Code Ann. §18.2—10(a) (Lexis 2004). Furthermore,
as the Court emphasized inAtkins itself, 536 U.S., at 315, n. 18, the pace of
legislative action in this context has been considerably slower than it was with
regard to capital punishment of the mentally retarded. In the 13 years between
our decisions in Penry and Atkins, no fewer than 16 States banned the
execution of mentally retarded offenders. See Atkins, supra, at 314—315. By
comparison, since our decision 16 years ago in Stanford, only four States that
previously permitted the execution of under-18 offenders, plus the Federal
Government, have legistlatively reversed course, and one additional State’s
high court has construed the State’s death penalty statute not to apply to
under-18 offenders, see State v. Furman, 122 Wash. 2d 440, 458, 858 P.2d
1092, 1103 (1993) (en banc). The slower pace of change is no doubt partially
attributable, as the Court says, to the fact that 11 States had already imposed
a minimum age of 18 when Stanford was decided. Seeante, at 12—13.
Nevertheless, the extraordinary wave of legislative action leading up to our
decision in Atkins provided strong evidence that the country truly had set itself
against capital punishment of the mentally retarded. Here, by contrast, the
halting pace of change gives reason for pause.
To the extent that the objective evidence supporting today’s decision is

similar to that inAtkins, this merely highlights the fact that such evidence is not
dispositive in either of the two cases. After all, as the Court today
confirms, ante, at 9, 20—21, the Constitution requires that “ ‘in the end our
own judgment … be brought to bear’ ” in deciding whether the Eighth
Amendment forbids a particular punishment. Atkins, supra, at 312
(quoting Coker, 433 U.S., at 597 (plurality opinion)). This judgment is not
merely a rubber stamp on the tally of legislative and jury actions. Rather, it is
an integral part of the Eighth Amendment inquiry–and one that is entitled to
independent weight in reaching our ultimate decision.
Here, as in Atkins, the objective evidence of a national consensus is weaker

than in most prior cases in which the Court has struck down a particular
punishment under the Eighth Amendment. See Coker, supra, at 595—596
(plurality opinion) (striking down death penalty for rape of an adult woman,
where only one jurisdiction authorized such punishment); Enmund, 458 U.S., at
792 (striking down death penalty for certain crimes of aiding and abetting
55
felony-murder, where only eight jurisdictions authorized such

punishment); Ford v. Wainwright, 477 U.S., at 408 (striking down capital
punishment of the insane, where no jurisdiction permitted this practice). In my
view, the objective evidence of national consensus, standing alone, was
insufficient to dictate the Court’s holding in Atkins. Rather, the compelling
moral proportionality argument against capital punishment of mentally
retarded offenders played adecisive role in persuading the Court that the
practice was inconsistent with the Eighth Amendment. Indeed, the force of the
proportionality argument in Atkins significantly bolstered the Court’s
confidence that the objective evidence in that case did, in fact, herald the
emergence of a genuine national consensus. Here, by contrast, the
proportionality argument against the juvenile death penalty is so flawed that it
can be given little, if any, analytical weight–it proves too weak to resolve the
lingering ambiguities in the objective evidence of legislative consensus or to
justify the Court’s categorical rule.
Seventeen-year-old murderers must be categorically exempted from capital

punishment, the Court says, because they “cannot with reliability be classified
among the worst offenders.”Ante, at 15. That conclusion is premised on three
perceived differences between “adults,” who have already reached their 18th
birthdays, and “juveniles,” who have not. See ante, at 15—16. First, juveniles
lack maturity and responsibility and are more reckless than adults. Second,
juveniles are more vulnerable to outside influences because they have less
control over their surroundings. And third, a juvenile’s character is not as fully
formed as that of an adult. Based on these characteristics, the Court
determines that 17-year-old capital murderers are not as blameworthy as
adults guilty of similar crimes; that 17-year-olds are less likely than adults to be
deterred by the prospect of a death sentence; and that it is difficult to conclude
that a 17-year-old who commits even the most heinous of crimes is
“irretrievably depraved.” Ante, at 16—18. The Court suggests that “a rare case
might arise in which a juvenile offender has sufficient psychological maturity,
and at the same time demonstrates sufficient depravity, to merit a sentence of
death.” Ante, at 18. However, the Court argues that a categorical age-based
prohibition is justified as a prophylactic rule because “[t]he differences
between juvenile and adult offenders are too marked and well understood to
risk allowing a youthful person to receive the death penalty despite insufficient
culpability.” Ante, at 19.
It is beyond cavil that juveniles as a class are generally less mature, less
responsible, and less fully formed than adults, and that these differences bear
on juveniles’ comparative moral culpability. See, e.g., Johnson v. Texas, 509
56
U.S. 350, 367 (1993) (“There is no dispute that a defendant’s youth is a

relevant mitigating circumstance”); id., at 376 (O’Connor, J., dissenting) (“[T]he
vicissitudes of youth bear directly on the young offender’s culpability and
responsibility for the crime”); Eddings, 455 U.S., at 115—116 (“Our history is
replete with laws and judicial recognition that minors, especially in their earlier
years, generally are less mature and responsible than adults”). But even
accepting this premise, the Court’s proportionality argument fails to support its
categorical rule.
First, the Court adduces no evidence whatsoever in support of its sweeping

conclusion, seeante, at 18, that it is only in “rare” cases, if ever, that 17-year-
old murderers are sufficiently mature and act with sufficient depravity to
warrant the death penalty. The fact that juveniles are generally less culpable
for their misconduct than adults does not necessarily mean that a 17-year-old
murderer cannot be sufficiently culpable to merit the death penalty. At most,
the Court’s argument suggests that the average 17-year-old murderer is not as
culpable as the average adult murderer. But an especially depraved juvenile
offender may nevertheless be just as culpable as many adult offenders
considered bad enough to deserve the death penalty. Similarly, the fact that
the availability of the death penalty may be less likely to deter a juvenile from
committing a capital crime does not imply that this threat
cannot effectively deter some 17-year-olds from such an act. Surely there is an
age below which no offender, no matter what his crime, can be deemed to
have the cognitive or emotional maturity necessary to warrant the death
penalty. But at least at the margins between adolescence and adulthood–and
especially for 17-year-olds such as respondent–the relevant differences
between “adults” and “juveniles” appear to be a matter of degree, rather than
of kind. It follows that a legislature may reasonably conclude that at
least some 17-year-olds can act with sufficient moral culpability, and can be
sufficiently deterred by the threat of execution, that capital punishment may
be warranted in an appropriate case.
Indeed, this appears to be just such a case. Christopher Simmons’ murder of

Shirley Crook was premeditated, wanton, and cruel in the extreme. Well before
he committed this crime, Simmons declared that he wanted to kill someone.
On several occasions, he discussed with two friends (ages 15 and 16) his plan
to burglarize a house and to murder the victim by tying the victim up and
pushing him from a bridge. Simmons said they could “ ‘get away with it’ ”
because they were minors. Brief for Petitioners 3. In accord with this plan,
Simmons and his 15-year-old accomplice broke into Mrs. Crook’s home in the
middle of the night, forced her from her bed, bound her, and drove her to a
state park. There, they walked her to a railroad trestle spanning a river, “hog-
tied” her with electrical cable, bound her face completely with duct tape, and
57
pushed her, still alive, from the trestle. She drowned in the water below. Id., at
4. One can scarcely imagine the terror that this woman must have suffered
throughout the ordeal leading to her death. Whatever can be said about the
comparative moral culpability of 17-year-olds as a general matter, Simmons’
actions unquestionably reflect “ ‘a consciousness materially more “depraved”
than that of’ … the average murderer.” See Atkins, 536 U.S., at 319
(quotingGodfrey v. Georgia, 446 U.S. 420, 433 (1980)). And Simmons’
prediction that he could murder with impunity because he had not yet turned
18–though inaccurate–suggests that he did take into account the perceived risk
of punishment in deciding whether to commit the crime. Based on this
evidence, the sentencing jury certainly had reasonable grounds for concluding
that, despite Simmons’ youth, he “ha[d] sufficient psychological maturity”
when he committed this horrific murder, and “at the same time demonstrate[d]
sufficient depravity, to merit a sentence of death.” See ante, at 18.
The Court’s proportionality argument suffers from a second and closely

related defect: It fails to establish that the differences in maturity between 17-
year-olds and young “adults” are both universal enough and significant enough
to justify a bright-line prophylactic rule against capital punishment of the
former. The Court’s analysis is premised on differences in the
aggregate between juveniles and adults, which frequently do not hold true
when comparing individuals. Although it may be that many 17-year-old
murderers lack sufficient maturity to deserve the death penalty, some juvenile
murderers may be quite mature. Chronological age is not an unfailing measure
of psychological development, and common experience suggests that many
17-year-olds are more mature than the average young “adult.” In short, the
class of offenders exempted from capital punishment by today’s decision is too
broad and too diverse to warrant a categorical prohibition. Indeed, the age-
based line drawn by the Court is indefensibly arbitrary–it quite likely will
protect a number of offenders who are mature enough to deserve the death
penalty and may well leave vulnerable many who are not.
For purposes of proportionality analysis, 17-year-olds as a class are

qualitatively and materially different from the mentally retarded. “Mentally
retarded” offenders, as we understood that category in Atkins, are defined by
precisely the characteristics which render death an excessive punishment. A
mentally retarded person is, “by definition,” one whose cognitive and
behavioral capacities have been proven to fall below a certain minimum.
SeeAtkins, 536 U.S., at 318; see also id., at 308, n. 3 (discussing characteristics
of mental retardation); id., at 317, and n. 22 (leaving to the States the
development of mechanisms to determine which offenders fall within the class
exempt from capital punishment). Accordingly, for purposes of our decision
in Atkins, the mentally retarded are not merely less blameworthy for their
58
misconduct or less likely to be deterred by the death penalty than others.

Rather, a mentally retarded offender is one whose demonstrated impairments
make it so highly unlikely that he is culpable enough to deserve the death
penalty or that he could have been deterred by the threat of death, that
execution is not a defensible punishment. There is no such inherent or accurate
fit between an offender’s chronological age and the personal limitations which
the Court believes make capital punishment excessive for 17-year-old
murderers. Moreover, it defies common sense to suggest that 17-year-olds as a
class are somehow equivalent to mentally retarded persons with regard to
culpability or susceptibility to deterrence. Seventeen-year-olds may, on
average, be less mature than adults, but that lesser maturity simply cannot be
equated with the major, lifelong impairments suffered by the mentally
retarded.
The proportionality issues raised by the Court clearly implicate Eighth

Amendment concerns. But these concerns may properly be addressed not by
means of an arbitrary, categorical age-based rule, but rather through
individualized sentencing in which juries are required to give appropriate
mitigating weight to the defendant’s immaturity, his susceptibility to outside
pressures, his cognizance of the consequences of his actions, and so forth. In
that way the constitutional response can be tailored to the specific problem it is
meant to remedy. TheEighth Amendment guards against the execution of
those who are “insufficiently culpable,” seeante, at 19, in significant part, by
requiring sentencing that “reflect[s] a reasoned moralresponse to the
defendant’s background, character, and crime.” California v. Brown, 479 U.S.
538, 545 (1987) (O’Connor, J., concurring). Accordingly, the sentencer in a
capital case must be permitted to give full effect to all constitutionally relevant
mitigating evidence. See Tennard v.Dretke, 542 U.S. ___, ___ (2004) (slip op., at
9—10); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion). A
defendant’s youth or immaturity is, of course, a paradigmatic example of such
evidence. See Eddings, 455 U.S., at 115—116.
Although the prosecutor’s apparent attempt to use respondent’s youth as an

aggravating circumstance in this case is troubling, that conduct was never
challenged with specificity in the lower courts and is not directly at issue here.
As the Court itself suggests, such “overreaching” would best be addressed, if
at all, through a more narrowly tailored remedy. See ante, at 19. The Court
argues that sentencing juries cannot accurately evaluate a youthful offender’s
maturity or give appropriate weight to the mitigating characteristics related to
youth. But, again, the Court presents no real evidence–and the record appears
to contain none–supporting this claim. Perhaps more importantly, the Court
fails to explain why this duty should be so different from, or so much more
difficult than, that of assessing and giving proper effect to any other qualitative
59
capital sentencing factor. I would not be so quick to conclude that the

constitutional safeguards, the sentencing juries, and the trial judges upon
which we place so much reliance in all capital cases are inadequate in this
narrow context.
I turn, finally, to the Court’s discussion of foreign and international law.

Without question, there has been a global trend in recent years towards
abolishing capital punishment for under-18 offenders. Very few, if any,
countries other than the United States now permit this practice in law or in
fact. See ante, at 22—23. While acknowledging that the actions and views of
other countries do not dictate the outcome of our Eighth Amendment inquiry,
the Court asserts that “the overwhelming weight of international opinion
against the juvenile death penalty … does provide respected and significant
confirmation for [its] own conclusions.” Ante, at 24. Because I do not believe
that a genuine national consensus against the juvenile death penalty has yet
developed, and because I do not believe the Court’s moral proportionality
argument justifies a categorical, age-based constitutional rule, I can assign no
such confirmatory role to the international consensus described by the Court.
In short, the evidence of an international consensus does not alter my
determination that the Eighth Amendment does not, at this time, forbid capital
punishment of 17-year-old murderers in all cases.
Nevertheless, I disagree with Justice Scalia’s contention, post, at 15—22

(dissenting opinion), that foreign and international law have no place in
our Eighth Amendmentjurisprudence. Over the course of nearly half a century,
the Court has consistently referred to foreign and international law as relevant
to its assessment of evolving standards of decency. See Atkins, 536 U.S., at
317, n. 21; Thompson, 487 U.S., at 830—831, and n. 31 (plurality
opinion); Enmund, 458 U.S., at 796—797, n. 22; Coker, 433 U.S., at 596, n. 10
(plurality opinion); Trop, 356 U.S., at 102—103 (plurality opinion). This inquiry
reflects the special character of the Eighth Amendment, which, as the Court
has long held, draws its meaning directly from the maturing values of civilized
society. Obviously, American law is distinctive in many respects, not least
where the specific provisions of our Constitution and the history of its
exposition so dictate. Cf. post, at 18—19 (Scalia, J., dissenting) (discussing
distinctively American rules of law related to the Fourth Amendment and the
Establishment Clause). But this Nation’s evolving understanding of human
dignity certainly is neither wholly isolated from, nor inherently at odds with, the
values prevailing in other countries. On the contrary, we should not be
surprised to find congruence between domestic and international values,
especially where the international community has reached clear agreement–
60
expressed in international law or in the domestic laws of individual countries–

that a particular form of punishment is inconsistent with fundamental human
rights. At least, the existence of an international consensus of this nature can
serve to confirm the reasonableness of a consonant and genuine American
consensus. The instant case presents no such domestic consensus, however,
and the recent emergence of an otherwise global consensus does not alter that
basic fact.
***
In determining whether the Eighth Amendment permits capital punishment

of a particular offense or class of offenders, we must look to whether such
punishment is consistent with contemporary standards of decency. We are
obligated to weigh both the objective evidence of societal values and our own
judgment as to whether death is an excessive sanction in the context at hand.
In the instant case, the objective evidence is inconclusive; standing alone, it
does not demonstrate that our society has repudiated capital punishment of
17-year-old offenders in all cases. Rather, the actions of the Nation’s
legislatures suggest that, although a clear and durable national consensus
against this practice may in time emerge, that day has yet to arrive. By acting
so soon after our decision in Stanford, the Court both pre-empts the democratic
debate through which genuine consensus might develop and simultaneously
runs a considerable risk of inviting lower court reassessments of our Eighth
Amendment precedents.
To be sure, the objective evidence supporting today’s decision is similar to

(though marginally weaker than) the evidence before the Court in Atkins.
But Atkins could not have been decided as it was based solely on such
evidence. Rather, the compelling proportionality argument against capital
punishment of the mentally retarded played a decisive role in the
Court’s Eighth Amendment ruling. Moreover, the constitutional rule adopted
in Atkins was tailored to this proportionality argument: It exempted from
capital punishment a defined group of offenders whose proven impairments
rendered it highly unlikely, and perhaps impossible, that they could act with
the degree of culpability necessary to deserve death. And Atkins left to the
States the development of mechanisms to determine which individual
offenders fell within this class.
In the instant case, by contrast, the moral proportionality arguments against

the juvenile death penalty fail to support the rule the Court adopts today. There
is no question that “the chronological age of a minor is itself a relevant
mitigating factor of great weight,” Eddings, 455 U.S., at 116, and that
sentencing juries must be given an opportunity carefully to consider a
61
defendant’s age and maturity in deciding whether to assess the death penalty.
But the mitigating characteristics associated with youth do not justify an
absolute age limit. A legislature can reasonably conclude, as many have, that
some 17-year-old murderers are mature enough to deserve the death penalty
in an appropriate case. And nothing in the record before us suggests that
sentencing juries are so unable accurately to assess a 17-year-old defendant’s
maturity, or so incapable of giving proper weight to youth as a mitigating
factor, that theEighth Amendment requires the bright-line rule imposed today.
In the end, the Court’s flawed proportionality argument simply cannot bear the
weight the Court would place upon it.
Reasonable minds can differ as to the minimum age at which commission of

a serious crime should expose the defendant to the death penalty, if at all.
Many jurisdictions have abolished capital punishment altogether, while many
others have determined that even the most heinous crime, if committed before
the age of 18, should not be punishable by death. Indeed, were my office that
of a legislator, rather than a judge, then I, too, would be inclined to support
legislation setting a minimum age of 18 in this context. But a significant
number of States, including Missouri, have decided to make the death penalty
potentially available for 17-year-old capital murderers such as respondent.
Without a clearer showing that a genuine national consensus forbids the
execution of such offenders, this Court should not substitute its own “inevitably
subjective judgment” on how best to resolve this difficult moral question for
the judgments of the Nation’s democratically elected legislatures.
See Thompson, supra, at 854 (O’Connor, J., concurring in judgment). I
respectfully dissent.
Notes
*.
* In 12 other States that have capital punishment, under-18 offenders can be subject
to the death penalty as a result of transfer statutes that permit such offenders to be
tried as adults for certain serious crimes. See ante, at 26 (Appendix A). As I observed
in Thompson v.Oklahoma, 487 U.S. 815, 850—852 (1988) (opinion concurring in
judgment): “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
[minors] to be channeled into the adult criminal justice process.” Accordingly, while
these 12 States clearly cannot be counted asopposing capital punishment of under-18
offenders, the fact that they permit such punishment through this indirect mechanism
does not necessarily show affirmative and unequivocal legislative support for the
practice. See ibid.
62
Justice Scalia, with whom The Chief Justice and Justice Thomas join,
dissenting.
In urging approval of a constitution that gave life-tenured judges the power

to nullify laws enacted by the people’s representatives, Alexander Hamilton
assured the citizens of New York that there was little risk in this, since “[t]he
judiciary … ha[s] neither FORCE nor WILL but merely judgment.” The Federalist
No. 78, p. 465 (C. Rossiter ed. 1961). But Hamilton had in mind a traditional
judiciary, “bound down by strict rules and precedents which serve to define
and point out their duty in every particular case that comes before
them.” Id., at 471. Bound down, indeed. What a mockery today’s opinion
makes of Hamilton’s expectation, announcing the Court’s conclusion that the
meaning of our Constitution has changed over the past 15 years–not, mind
you, that this Court’s decision 15 years ago was wrong, but that the
Constitution haschanged. The Court reaches this implausible result by
purporting to advert, not to the original meaning of the Eighth Amendment, but
to “the evolving standards of decency,” ante, at 6 (internal quotation marks
omitted), of our national society. It then finds, on the flimsiest of grounds, that
a national consensus which could not be perceived in our people’s laws barely
15 years ago now solidly exists. Worse still, the Court says in so many words
that what our people’s laws say about the issue does not, in the last analysis,
matter: “[I]n the end our own judgment will be brought to bear on the question
of the acceptability of the death penalty under the Eighth Amendment.” Ante,
at 9 (internal quotation marks omitted). The Court thus proclaims itself sole
arbiter of our Nation’s moral standards–and in the course of discharging that
awesome responsibility purports to take guidance from the views of foreign
courts and legislatures. Because I do not believe that the meaning of
our Eighth Amendment, any more than the meaning of other provisions of our
Constitution, should be determined by the subjective views of five Members of
this Court and like-minded foreigners, I dissent.
In determining that capital punishment of offenders who committed murder

before age 18 is “cruel and unusual” under the Eighth Amendment, the Court
first considers, in accordance with our modern (though in my view mistaken)
jurisprudence, whether there is a “national consensus,” ibid. (internal quotation
marks omitted), that laws allowing such executions contravene our modern
“standards of decency,”1 Trop v. Dulles, 356 U.S. 86, 101 (1958). We have held
that this determination should be based on “objective indicia that reflect the
public attitude toward a given sanction”–namely, “statutes passed by society’s
elected representatives.” Stanford v. Kentucky, 492 U.S. 361, 370 (1989)
63
(internal quotation marks omitted). As in Atkins v. Virginia, 536 U.S. 304, 312
(2002), the Court dutifully recites this test and claims halfheartedly that a
national consensus has emerged since our decision in Stanford, because 18
States–or 47% of States that permit capital punishment–now have legislation
prohibiting the execution of offenders under 18, and because all of four States
have adopted such legislation since Stanford. See ante, at 11.
Words have no meaning if the views of less than 50% of death penalty
States can constitute a national consensus. See Atkins, supra, at 342—345
(Scalia, J., dissenting). Our previous cases have required overwhelming
opposition to a challenged practice, generally over a long period of time.
In Coker v. Georgia, 433 U.S. 584, 595—596 (1977), a plurality concluded
the Eighth Amendment prohibited capital punishment for rape of an adult
woman where only one jurisdiction authorized such punishment. The plurality
also observed that “[a]t no time in the last 50 years ha[d] a majority of States
authorized death as a punishment for rape.” Id., at
593. In Ford v. Wainwright, 477 U.S. 399, 408 (1986), we held execution of the
insane unconstitutional, tracing the roots of this prohibition to the common law
and noting that “no State in the union permits the execution of the insane.”
In Enmund v. Florida, 458 U.S. 782, 792 (1982), we invalidated capital
punishment imposed for participation in a robbery in which an accomplice
committed murder, because 78% of all death penalty States prohibited this
punishment. Even there we expressed some hesitation, because the legislative
judgment was “neither ‘wholly unanimous among state legislatures,’ … nor as
compelling as the legislative judgments considered in Coker.” Id., at 793. By
contrast, agreement among 42% of death penalty States in Stanford, which the
Court appears to believe was correctly decided at the time, ante, at 20, was
insufficient to show a national consensus. See Stanford, supra, at 372.
In an attempt to keep afloat its implausible assertion of national consensus,

the Court throws overboard a proposition well established in our Eighth
Amendment jurisprudence. “It should be observed,” the Court says, “that
the Stanford Court should have considered those States that had abandoned
the death penalty altogether as part of the consensus against the juvenile
death penalty …; a State’s decision to bar the death penalty altogether of
necessity demonstrates a judgment that the death penalty is inappropriate for
all offenders, including juveniles.” Ante, at 20. The insinuation that the Court’s
new method of counting contradicts only “the StanfordCourt” is
misleading. None of our cases dealing with an alleged constitutional limitation
upon the death penalty has counted, as States supporting a consensus in favor
of that limitation, States that have eliminated the death penalty entirely.
See Ford, supra, at 408, n. 2; Enmund,supra, at 789; Coker, supra, at 594. And
with good reason. Consulting States that bar the death penalty concerning the
64
necessity of making an exception to the penalty for offenders under 18 is

rather like including old-order Amishmen in a consumer-preference poll on the
electric car. Ofcourse they don’t like it, but that sheds no light whatever on the
point at issue. That 12 States favor no executions says something about
consensus against the death penalty, but nothing–absolutely nothing–about
consensus that offenders under 18 deserve special immunity from such a
penalty. In repealing the death penalty, those 12 States considered none of the
factors that the Court puts forth as determinative of the issue before us today–
lower culpability of the young, inherent recklessness, lack of capacity for
considered judgment, etc. What might be relevant, perhaps, is how many of
those States permit 16- and 17-year-old offenders to be treated as adults with
respect to noncapital offenses. (They all do;2 indeed, some even requirethat
juveniles as young as 14 be tried as adults if they are charged with murder.3)
The attempt by the Court to turn its remarkable minority consensus into a faux
majority by counting Amishmen is an act of nomological desperation.
Recognizing that its national-consensus argument was weak compared with

our earlier cases, the Atkins Court found additional support in the fact that 16
States had prohibited execution of mentally retarded individuals
since Penry v. Lynaugh, 492 U.S. 302 (1989). Atkins, supra, at 314—316.
Indeed, the Atkins Court distinguished Stanford on that very ground, explaining
that “[a]lthough we decided Stanford on the same day as Penry,
apparently only two state legislatures have raised the threshold age for
imposition of the death penalty.” 536 U.S., at 315, n. 18 (emphasis added).
Now, the Court says a legislative change in four States is “significant” enough
to trigger a constitutional prohibition.4 Ante, at 11. It is amazing to think that
this subtle shift in numbers can take the issue entirely off the table for
legislative debate.
I also doubt whether many of the legislators who voted to change the laws in
those four States would have done so if they had known their decision would
(by the pronouncement of this Court) be rendered irreversible. After all,
legislative support for capital punishment, in any form, has surged and ebbed
throughout our Nation’s history. As Justice O’Connor has explained:
“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 … . In
succeeding decades, other American States continued the trend towards
abolition … . Later, and particularly after World War II, there ensued a steady
and dramatic decline in executions … . 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… .
65
“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… . 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.” Thompson v.Oklahoma, 487 U.S. 815, 854—855
(1988) (opinion concurring in judgment).
Relying on such narrow margins is especially inappropriate in light of the fact

that a number of legislatures and voters have expressly affirmed their support
for capital punishment of 16- and 17-year-old offenders since Stanford. Though
the Court is correct that no State has lowered its death penalty age, both the
Missouri and Virginia Legislatures–which, at the time ofStanford, had no
minimum age requirement–expressly established 16 as the minimum. Mo. Rev.
Stat. §565.020.2 (2000); Va. Code Ann. §18.2—10(a) (Lexis 2004). The people
of Arizona5 and Florida6 have done the same by ballot initiative. Thus, even
States that have not executed an under-18 offender in recent years
unquestionably favor the possibility of capital punishment in some
circumstances.
The Court’s reliance on the infrequency of executions, for under-18

murderers, ante, at 10—11, 13, credits an argument that this Court considered
and explicitly rejected in Stanford. That infrequency is explained, we accurately
said, both by “the undisputed fact that a far smaller percentage of capital
crimes are committed by persons under 18 than over 18,” 492 U.S., at 374,
and by the fact that juries are required at sentencing to consider the offender’s
youth as a mitigating factor, see Eddings v. Oklahoma, 455 U.S. 104, 115—116
(1982). Thus, “it is not only possible, but overwhelmingly probable, that the
very considerations which induce [respondent] and [his] supporters to believe
that death should never be imposed on offenders under 18 cause prosecutors
and juries to believe that it should rarely be imposed.” Stanford,supra, at 374.
It is, furthermore, unclear that executions of the relevant age group have
decreased since we decided Stanford. Between 1990 and 2003, 123 of 3,599
death sentences, or 3.4%, were given to individuals who committed crimes
before reaching age 18. V. Streib, The Juvenile Death Penalty Today: Death
Sentences and Executions for Juvenile Crimes, January 1, 1973—September 30,
2004, No. 75, p. 9 (Table 3) (last updated Oct. 5, 2004), http://
www.law.onu.edu/faculty/streib/documentsJuvDeathSept 302004.pdf (all
Internet materials as visited Jan. 12, 2005, and available in the Clerk of Court’s
66
case file) (hereinafter Juvenile Death Penalty Today). By contrast, only 2.1% of
those sentenced to death between 1982 and 1988 committed the crimes when
they were under 18. See Stanford, supra, at 373 (citing V. Streib, Imposition of
Death Sentences for Juvenile Offenses, January 1, 1982, Through April 1, 1989,
p. 2 (paper for Cleveland-Marshall College of Law, April 5, 1989)). As for actual
executions of under-18 offenders, they constituted 2.4% of the total executions
since 1973. Juvenile Death Penalty Today 4. In Stanford, we noted that only 2%
of the executions between 1642 and 1986 were of under-18 offenders and
found that that lower number did not demonstrate a national consensus
against the penalty. 492 U.S., at 373—374 (citing V. Streib, Death Penalty for
Juveniles 55, 57 (1987)). Thus, the numbers of under-18 offenders subjected to
the death penalty, though low compared with adults, have either held steady
or slightly increased since Stanford. These statistics in no way support the
action the Court takes today.
II
Of course, the real force driving today’s decision is not the actions of four
state legislatures, but the Court’s “ ‘ “own judgment” ’ ” that murderers
younger than 18 can never be as morally culpable as older counterparts. Ante,
at 9 (quoting Atkins, 536 U.S., at 312 (in turn quotingCoker, 433 U.S., at 597
(plurality opinion))). The Court claims that this usurpation of the role of moral
arbiter is simply a “retur[n] to the rul[e] established in decisions
predating Stanford,”ante, at 9. That supposed rule–which is reflected solely in
dicta and never once in a holding that purports to supplant the consensus of
the American people with the Justices’ views7–was repudiated in Stanford for
the very good reason that it has no foundation in law or logic. If theEighth
Amendment set forth an ordinary rule of law, it would indeed be the role of this
Court to say what the law is. But the Court having pronounced that the Eighth
Amendment is an ever-changing reflection of “the evolving standards of
decency” of our society, it makes no sense for the Justices then
to prescribe those standards rather than discern them from the practices of our
people. On the evolving-standards hypothesis, the only legitimate function of
this Court is to identify a moral consensus of the American people. By what
conceivable warrant can nine lawyers presume to be the authoritative
conscience of the Nation? 8
The reason for insistence on legislative primacy is obvious and fundamental:

“ ‘[I]n a democratic society legislatures, not courts, are constituted to respond
to the will and consequently the moral values of the
people.’ ” Gregg v. Georgia, 428 U.S. 153, 175—176 (1976) (joint opinion of
Stewart, Powell, and Stevens, JJ.) (quoting Furman v. Georgia, 408 U.S. 238,
383 (1972) (Burger, C. J., dissenting)). For a similar reason we have, in our
67
determination of society’s moral standards, consulted the practices of

sentencing juries: Juries “ ‘maintain a link between contemporary community
values and the penal system’ ” that this Court cannot claim for
itself. Gregg, supra, at 181 (quoting Witherspoon v. Illinois, 391 U.S. 510, 519,
n. 15 (1968)).
Today’s opinion provides a perfect example of why judges are ill equipped to
make the type of legislative judgments the Court insists on making here. To
support its opinion that States should be prohibited from imposing the death
penalty on anyone who committed murder before age 18, the Court looks to
scientific and sociological studies, picking and choosing those that support its
position. It never explains why those particular studies are methodologically
sound; none was ever entered into evidence or tested in an adversarial
proceeding. As The Chief Justice has explained:
“[M]ethodological and other errors can affect the reliability and validity of
estimates about the opinions and attitudes of a population derived from
various sampling techniques. Everything from variations in the survey
methodology, such as the choice of the target population, the sampling design
used, the questions asked, and the statistical analyses used to interpret the
data can skew the results.” Atkins, supra, at 326—327 (dissenting opinion)
(citing R. Groves, Survey Errors and Survey Costs (1989); 1 C. Turner & E.
Martin, Surveying Subjective Phenomena (1984)).
In other words, all the Court has done today, to borrow from another context, is
to look over the heads of the crowd and pick out its friends.
Cf. Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in
judgment).
We need not look far to find studies contradicting the Court’s conclusions. As
petitioner points out, the American Psychological Association (APA), which
claims in this case that scientific evidence shows persons under 18 lack the
ability to take moral responsibility for their decisions, has previously taken
precisely the opposite position before this very Court. In its brief
in Hodgson v. Minnesota, 497 U.S. 417 (1990), the APA found a “rich body of
research” showing that juveniles are mature enough to decide whether to
obtain an abortion without parental involvement. Brief for APA as Amicus
Curiae, O. T. 1989, No. 88—805 etc., p. 18. The APA brief, citing psychology
treatises and studies too numerous to list here, asserted: “[B]y middle
adolescence (age 14—15) young people develop abilities similar to adults in
reasoning about moral dilemmas, understanding social rules and laws, [and]
reasoning about interpersonal relationships and interpersonal problems.” Id., at
19—20 (citations omitted). Given the nuances of scientific methodology and
68
conflicting views, courts–which can only consider the limited evidence on the
record before them–are ill equipped to determine which view of science is the
right one. Legislatures “are better qualified to weigh and ‘evaluate the results
of statistical studies in terms of their own local conditions and with a flexibility
of approach that is not available to the courts.’ ” McCleskey v. Kemp, 481 U.S.
279, 319 (1987) (quoting Gregg, supra,at 186).
Even putting aside questions of methodology, the studies cited by the Court
offer scant support for a categorical prohibition of the death penalty for
murderers under 18. At most, these studies conclude that, on average, or in
most cases, persons under 18 are unable to take moral responsibility for their
actions. Not one of the cited studies opines that all individuals under 18 are
unable to appreciate the nature of their crimes.
Moreover, the cited studies describe only adolescents who engage in risky or
antisocial behavior, as many young people do. Murder, however, is more than
just risky or antisocial behavior. It is entirely consistent to believe that young
people often act impetuously and lack judgment, but, at the same time, to
believe that those who commit premeditated murder are–at least sometimes–
just as culpable as adults. Christopher Simmons, who was only seven months
shy of his 18th birthday when he murdered Shirley Crook, described to his
friendsbeforehand–“[i]n chilling, callous terms,” as the Court puts it, ante, at 1–
the murder he planned to commit. He then broke into the home of an innocent
woman, bound her with duct tape and electrical wire, and threw her off a
bridge alive and conscious. Ante, at 2. In their amici brief, the States of
Alabama, Delaware, Oklahoma, Texas, Utah, and Virginia offer additional
examples of murders committed by individuals under 18 that involve truly
monstrous acts. In Alabama, two 17-year-olds, one 16-year-old, and one 19-
year-old picked up a female hitchhiker, threw bottles at her, and kicked and
stomped her for approximately 30 minutes until she died. They then sexually
assaulted her lifeless body and, when they were finished, threw her body off a
cliff. They later returned to the crime scene to mutilate her corpse. See Brief
for Alabama et al. as Amici Curiae 9—10; see also Loggins v. State, 771 So. 2d
1070, 1074—1075 (Ala. Crim. App. 1999); Duncan v. State, 827 So. 2d 838,
840—841 (Ala. Crim. App. 1999). Other examples in the brief are equally
shocking. Though these cases are assuredly the exception rather than the rule,
the studies the Court cites in no way justify a constitutional imperative that
prevents legislatures and juries from treating exceptional cases in an
exceptional way–by determining that some murders are not just the acts of
happy-go-lucky teenagers, but heinous crimes deserving of death.
That “almost every State prohibits those under 18 years of age from voting,
serving on juries, or marrying without parental consent,” ante, at 15, is
69
patently irrelevant–and is yet another resurrection of an argument that this

Court gave a decent burial in Stanford. (What kind of Equal Justice under Law is
it that–without so much as a “Sorry about that”–gives as the basis for sparing
one person from execution arguments explicitly rejected in refusing to spare
another?) As we explained in Stanford, 492 U.S., at 374, it is “absurd to think
that one must be mature enough to drive carefully, to drink responsibly, or to
vote intelligently, in order to be mature enough to understand that murdering
another human being is profoundly wrong, and to conform one’s conduct to
that most minimal of all civilized standards.” Serving on a jury or entering into
marriage also involve decisions far more sophisticated than the simple decision
not to take another’s life.
Moreover, the age statutes the Court lists “set the appropriate ages for the
operation of a system that makes its determinations in gross, and that does not
conduct individualized maturity tests.” Ibid. The criminal justice system, by
contrast, provides for individualized consideration of each defendant. In capital
cases, this Court requires the sentencer to make an individualized
determination, which includes weighing aggravating factors and mitigating
factors, such as youth. See Eddings, 455 U.S., at 115—117. In other contexts
where individualized consideration is provided, we have recognized that at
least some minors will be mature enough to make difficult decisions that
involve moral considerations. For instance, we have struck down abortion
statutes that do not allow minors deemed mature by courts to bypass parental
notification provisions. See, e.g., Bellotti v. Baird, 443 U.S. 622, 643—644
(1979) (opinion of Powell, J.); Planned Parenthood of Central
Mo. v. Danforth, 428 U.S. 52, 74—75 (1976). It is hard to see why this context
should be any different. Whether to obtain an abortion is surely a much more
complex decision for a young person than whether to kill an innocent person in
cold blood.
The Court concludes, however, ante, at 18, that juries cannot be trusted with
the delicate task of weighing a defendant’s youth along with the other
mitigating and aggravating factors of his crime. This startling conclusion
undermines the very foundations of our capital sentencing system, which
entrusts juries with “mak[ing] the difficult and uniquely human judgments that
defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal
system.’ ”McCleskey, supra, at 311 (quoting H. Kalven & H. Zeisel, The
American Jury 498 (1966)). The Court says, ante, at 18, that juries will be
unable to appreciate the significance of a defendant’s youth when faced with
details of a brutal crime. This assertion is based on no evidence; to the
contrary, the Court itself acknowledges that the execution of under-18
offenders is “infrequent” even in the States “without a formal prohibition on
70
executing juveniles,” ante, at 10, suggesting that juries take seriously their
responsibility to weigh youth as a mitigating factor.
Nor does the Court suggest a stopping point for its reasoning. If juries cannot
make appropriate determinations in cases involving murderers under 18, in
what other kinds of cases will the Court find jurors deficient? We have already
held that no jury may consider whether a mentally deficient defendant can
receive the death penalty, irrespective of his crime. SeeAtkins, 536 U.S., at
321. Why not take other mitigating factors, such as considerations of childhood
abuse or poverty, away from juries as well? Surely jurors “overpower[ed]” by
“the brutality or cold-blooded nature” of a crime, ante, at 19, could not
adequately weigh these mitigating factors either.
The Court’s contention that the goals of retribution and deterrence are not
served by executing murderers under 18 is also transparently false. The
argument that “[r]etribution is not proportional if the law’s most severe penalty
is imposed on one whose culpability or blameworthiness is diminished,” ante,
at 17, is simply an extension of the earlier, false generalization that
youth always defeats culpability. The Court claims that “juveniles will be less
susceptible to deterrence,” ante, at 18, because “ ‘[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,’ ” ibid. (quoting Thompson, 487 U.S., at 837). The Court
unsurprisingly finds no support for this astounding proposition, save its own
case law. The facts of this very case show the proposition to be false. Before
committing the crime, Simmons encouraged his friends to join him by assuring
them that they could “get away with it” because they were minors. State ex
rel. Simmons v. Roper, 112 S. W. 3d 397, 419 (Mo. 2003) (Price, J., dissenting).
This fact may have influenced the jury’s decision to impose capital punishment
despite Simmons’ age. Because the Court refuses to entertain the possibility
that its own unsubstantiated generalization about juveniles could be wrong, it
ignores this evidence entirely.
III
Though the views of our own citizens are essentially irrelevant to the Court’s
decision today, the views of other countries and the so-called international
community take center stage.
The Court begins by noting that “Article 37 of the United Nations Convention
on the Rights of the Child, [1577 U. N. T. S. 3, 28 I. L. M. 1448, 1468—1470,
entered into force Sept. 2, 1990], which every country in the world has
ratified save for the United States and Somalia, contains an express prohibition
71
on capital punishment for crimes committed by juveniles under 18.”Ante, at 22

(emphasis added). The Court also discusses the International Covenant on Civil
and Political Rights (ICCPR), December 19, 1966, 999 U. N. T. S. 175, ante, at
13, 22, which the Senate ratified only subject to a reservation that reads:
“The United States reserves the right, subject to its Constitutional restraints, to
impose capital punishment on any person (other than a pregnant woman) duly
convicted under existing or future laws permitting the imposition of capital
punishment, including such punishment for crime committed by persons below
eighteen years of age.” Senate Committee on Foreign Relations, International
Covenant on Civil and Political Rights, S. Exec. Rep. No. 102—23, (1992).
Unless the Court has added to its arsenal the power to join and ratify treaties
on behalf of the United States, I cannot see how this evidence favors, rather
than refutes, its position. That the Senate and the President–those actors our
Constitution empowers to enter into treaties, see Art. II, §2–have declined to
join and ratify treaties prohibiting execution of under-18 offenders can only
suggest that our country has either not reached a national consensus on the
question, or has reached a consensus contrary to what the Court announces.
That the reservation to the ICCPR was made in 1992 does not suggest
otherwise, since the reservation still remains in place today. It is also worth
noting that, in addition to barring the execution of under-18 offenders, the
United Nations Convention on the Rights of the Child prohibits punishing them
with life in prison without the possibility of release. If we are truly going to get
in line with the international community, then the Court’s reassurance that the
death penalty is really not needed, since “the punishment of life imprisonment
without the possibility of parole is itself a severe sanction,” ante, at 18, gives
little comfort.
It is interesting that whereas the Court is not content to accept what the
States of our Federal Union say, but insists on inquiring into what
they do (specifically, whether they in factapply the juvenile death penalty that
their laws allow), the Court is quite willing to believe that every foreign nation–
of whatever tyrannical political makeup and with however subservient or
incompetent a court system–in fact adheres to a rule of no death penalty for
offenders under 18. Nor does the Court inquire into how many of the countries
that have the death penalty, but have forsworn (on paper at least) imposing
that penalty on offenders under 18, have what no State of this country can
constitutionally have: a mandatory death penalty for certain crimes, with no
possibility of mitigation by the sentencing authority, for youth or any other
reason. I suspect it is most of them. See, e.g., R. Simon & D. Blaskovich, A
Comparative Analysis of Capital Punishment: Statutes, Policies, Frequencies,
and Public Attitudes the World Over 25, 26, 29 (2002). To forbid the death
72
penalty for juveniles under such a system may be a good idea, but it says
nothing about our system, in which the sentencing authority, typically a jury,
always can, and almost always does, withhold the death penalty from an
under-18 offender except, after considering all the circumstances, in the rare
cases where it is warranted. The foreign authorities, in other words, do not
even speak to the issue before us here.
More fundamentally, however, the basic premise of the Court’s argument–

that American law should conform to the laws of the rest of the world–ought to
be rejected out of hand. In fact the Court itself does not believe it. In many
significant respects the laws of most other countries differ from our law–
including not only such explicit provisions of our Constitution as the right to
jury trial and grand jury indictment, but even many interpretations of the
Constitution prescribed by this Court itself. The Court-pronounced exclusionary
rule, for example, is distinctively American. When we adopted that rule
in Mapp v. Ohio, 367 U.S. 643, 655 (1961), it was “unique to American
Jurisprudence.” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388,
415 (1971) (Burger, C. J., dissenting). Since then a categorical exclusionary rule
has been “universally rejected” by other countries, including those with rules
prohibiting illegal searches and police misconduct, despite the fact that none of
these countries “appears to have any alternative form of discipline for police
that is effective in preventing search violations.” Bradley, Mapp Goes Abroad,
52 Case W. Res. L. Rev. 375, 399—400 (2001). England, for example, rarely
excludes evidence found during an illegal search or seizure and has only
recently begun excluding evidence from illegally obtained confessions. See C.
Slobogin, Criminal Procedure: Regulation of Police Investigation 550 (3d ed.
2002). Canada rarely excludes evidence and will only do so if admission will
“bring the administration of justice into disrepute.” Id., at 550—551 (internal
quotation marks omitted). The European Court of Human Rights has held that
introduction of illegally seized evidence does not violate the “fair trial”
requirement in Article 6, §1, of the European Convention on Human Rights. See
Slobogin,supra, at 551; Bradley, supra, at 377—378.
The Court has been oblivious to the views of other countries when deciding
how to interpret our Constitution’s requirement that “Congress shall make no
law respecting an establishment of religion… .” Amdt. 1. Most other countries–
including those committed to religious neutrality–do not insist on the degree of
separation between church and state that this Court requires. For example,
whereas “we have recognized special Establishment Clause dangers where the
government makes direct money payments to sectarian
institutions,” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819,
842 (1995) (citing cases), countries such as the Netherlands, Germany, and
Australia allow direct government funding of religious schools on the ground
73
that “the state can only be truly neutral between secular and religious
perspectives if it does not dominate the provision of so key a service as
education, and makes it possible for people to exercise their right of religious
expression within the context of public funding.” S. Monsma & J. Soper, The
Challenge of Pluralism: Church and State in Five Democracies 207 (1997); see
also id., at 67, 103, 176. England permits the teaching of religion in state
schools.Id., at 142. Even in France, which is considered “America’s only rival in
strictness of church-state separation,” “[t]he practice of contracting for
educational services provided by Catholic schools is very widespread.” C.
Glenn, The Ambiguous Embrace: Government and Faith-Based Schools and
Social Agencies 110 (2000).
And let us not forget the Court’s abortion jurisprudence, which makes us one
of only six countries that allow abortion on demand until the point of viability.
See Larsen, Importing Constitutional Norms from a “Wider
Civilization”: Lawrence and the Rehnquist Court’s Use of Foreign and
International Law in Domestic Constitutional Interpretation, 65 Ohio St. L. J.
1283, 1320 (2004);
Center for Reproductive Rights, The World’s Abortion Laws (June 2004),
http://www.reproductiverights.org/
pub_fac_abortion_laws.htm l. Though the Government and amici in cases
following Roe v.Wade, 410 U.S. 113 (1973), urged the Court to follow the
international community’s lead, these arguments fell on deaf ears. See
McCrudden, A Part of the Main? The Physician-Assisted Suicide Cases and
Comparative Law Methodology in the United States Supreme Court, in Law at
the End of Life: The Supreme Court and Assisted Suicide 125, 129—130 (C.
Schneider ed. 2000).
The Court’s special reliance on the laws of the United Kingdom is perhaps
the most indefensible part of its opinion. It is of course true that we share a
common history with the United Kingdom, and that we often consult English
sources when asked to discern the meaning of a constitutional text written
against the backdrop of 18th-century English law and legal thought. If we
applied that approach today, our task would be an easy one. As we explained
inHarmelin v. Michigan, 501 U.S. 957, 973—974 (1991), the “Cruell and
Unusuall Punishments” provision of the English Declaration of Rights was
originally meant to describe those punishments “ ‘out of [the Judges’] Power’ ”–
that is, those punishments that were not authorized by common law or statute,
but that were nonetheless administered by the Crown or the Crown’s judges.
Under that reasoning, the death penalty for under-18 offenders would easily
survive this challenge. The Court has, however–I think wrongly–long rejected a
purely originalist approach to our Eighth Amendment, and that is certainly not
the approach the Court takes today. Instead, the Court undertakes the majestic
74
task of determining (and thereby prescribing) our Nation’s current standards of

decency. It is beyond comprehension why we should look, for that purpose, to
a country that has developed, in the centuries since the Revolutionary War–and
with increasing speed since the United Kingdom’s recent submission to the
jurisprudence of European courts dominated by continental jurists–a legal,
political, and social culture quite different from our own. If we took the Court’s
directive seriously, we would also consider relaxing our double jeopardy
prohibition, since the British Law Commission recently published a report that
would significantly extend the rights of the prosecution to appeal cases where
an acquittal was the result of a judge’s ruling that was legally incorrect. See
Law Commission, Double Jeopardy and Prosecution Appeals, LAW COM No. 267,
Cm 5048, p. 6, ¶1.19 (Mar. 2001); J. Spencer, The English System in European
Criminal Procedures 142, 204, and n. 239 (M. Delmas-Marty & J. Spencer eds.
2002). We would also curtail our right to jury trial in criminal cases since,
despite the jury system’s deep roots in our shared common law, England now
permits all but the most serious offenders to be tried by magistrates without a
jury. See D. Feldman, England and Wales, in Criminal Procedure: A Worldwide
Study 91, 114—115 (C. Bradley ed. 1999).
The Court should either profess its willingness to reconsider all these matters
in light of the views of foreigners, or else it should cease putting forth
foreigners’ views as part of thereasoned basis of its decisions. To invoke alien
law when it agrees with one’s own thinking, and ignore it otherwise, is not
reasoned decisionmaking, but sophistry.9
The Court responds that “[i]t does not lessen our fidelity to the Constitution
or our pride in its origins to acknowledge that the express affirmation of certain
fundamental rights by other nations and peoples simply underscores the
centrality of those same rights within our own heritage of freedom.” Ante, at 24
—25. To begin with, I do not believe that approval by “other nations and
peoples” should buttress our commitment to American principles any more
than (what should logically follow) disapproval by “other nations and peoples”
should weaken that commitment. More importantly, however, the Court’s
statement flatly misdescribes what is going on here. Foreign sources are cited
today, not to underscore our “fidelity” to the Constitution, our “pride in its
origins,” and “our own [American] heritage.” To the contrary, they are cited to
set aside the centuries-old American practice–a practice still engaged in by a
large majority of the relevant States–of letting a jury of 12 citizens decide
whether, in the particular case, youth should be the basis for withholding the
death penalty. What these foreign sources “affirm,” rather than repudiate, is
the Justices’ own notion of how the world ought to be, and their diktat that it
shall be so henceforth in America. The Court’s parting attempt to downplay the
significance of its extensive discussion of foreign law is unconvincing.
75
“Acknowledgment” of foreign approval has no place in the legal opinion of this

Court unless it is part of the basis for the Court’s judgment–which is surely
what it parades as today.
IV
To add insult to injury, the Court affirms the Missouri Supreme Court without
even admonishing that court for its flagrant disregard of our precedent
in Stanford. Until today, we have always held that “it is this Court’s prerogative
alone to overrule one of its precedents.”State Oil Co. v. Khan, 522 U.S. 3, 20
(1997). That has been true even where “ ‘changes in judicial doctrine’ ha[ve]
significantly undermined” our prior holding, United States v. Hatter,532 U.S.
557, 567 (2001) (quoting Hatter v. United States, 64 F.3d 647, 650 (CA Fed.
1995)), and even where our prior holding “appears to rest on reasons rejected
in some other line of decisions,” Rodriguez de Quijas v. Shearson/
American Express, Inc., 490 U.S. 477, 484 (1989). Today, however, the Court
silently approves a state-court decision that blatantly rejected controlling
precedent.
One must admit that the Missouri Supreme Court’s action, and this Court’s
indulgent reaction, are, in a way, understandable. In a system based upon
constitutional and statutory text democratically adopted, the concept of “law”
ordinarily signifies that particular words have a fixed meaning. Such law does
not change, and this Court’s pronouncement of it therefore remains
authoritative until (confessing our prior error) we overrule. The Court has
purported to make of the Eighth Amendment, however, a mirror of the passing
and changing sentiment of American society regarding penology. The lower
courts can look into that mirror as well as we can; and what we saw 15 years
ago bears no necessary relationship to what they see today. Since they are not
looking at the same text, but at a different scene, why should our earlier
decision control their judgment?
However sound philosophically, this is no way to run a legal system. We

must disregard the new reality that, to the extent our Eighth
Amendment decisions constitute something more than a show of hands on the
current Justices’ current personal views about penology, they purport to be
nothing more than a snapshot of American public opinion at a particular point
in time (with the timeframes now shortened to a mere 15 years). We must
treat these decisions just as though they
represented real law, real prescriptions democratically adopted by the
American people, as conclusively (rather than sequentially) construed by this
Court. Allowing lower courts to reinterpret the Eighth Amendment whenever
they decide enough time has passed for a new snapshot leaves this Court’s
76
decisions without any force–especially since the “evolution” of ourEighth

Amendment is no longer determined by objective criteria. To allow lower courts
to behave as we do, “updating” the Eighth Amendment as needed, destroys
stability and makes our case law an unreliable basis for the designing of laws
by citizens and their representatives, and for action by public officials. The
result will be to crown arbitrariness with chaos.
Notes
1.
The Court ignores entirely the threshold inquiry in determining whether a particular
punishment complies with the Eighth Amendment: whether it is one of the “modes or
acts of punishment that had been considered cruel and unusual at the time that the Bill
of Rights was adopted.” Ford v. Wainwright, 477 U.S. 399, 405 (1986). As we have
noted in prior cases, the evidence is unusually clear that the Eighth Amendment was
not originally understood to prohibit capital punishment for 16- and 17-year-old
offenders. See Stanford v. Kentucky, 492 U.S. 361, 368 (1989). At the time the Eighth
Amendment was adopted, the death penalty could theoretically be imposed for the
crime of a 7-year-old, though there was a rebuttable presumption of incapacity to
commit a capital (or other) felony until the age of 14. See ibid.(citing 4 W. Blackstone,
Commentaries *23—*24; 1 M. Hale, Pleas of the Crown 24—29 (1800)).
2.
See Alaska Stat. §47.12.030 (Lexis 2002); Haw. Rev. Stat. §571—22 (1999); Iowa
Code §232.45 (2003); Me. Rev. Stat. Ann., Tit. 15, §3101(4) (West 2003); Mass. Gen.
Laws Ann., ch. 119, §74 (West 2003); Mich. Comp. Laws Ann. §764.27 (West 2000);
Minn. Stat. §260B.125 (2002); N. D. Cent. Code §27—20—34 (Lexis Supp. 2003); R. I.
Gen. Laws §14—1—7 (Lexis 2002); Vt. Stat. Ann., Tit. 33, §5516 (Lexis 2001); W. Va.
Code §49—5—10 (Lexis 2004); Wis. Stat. §938.18 (2003—2004); see also National
Center for Juvenile Justice, Trying and Sentencing Juveniles as Adults: An Analysis of
State Transfer and Blended Sentencing Laws 1 (Oct. 2003). The District of Columbia is
the only jurisdiction without a death penalty that specifically exempts under-18
offenders from its harshest sanction–life imprisonment without parole. See D. C. Code
§22—2104 (West 2001).
3.
See Mass. Gen. Laws Ann., ch. 119, §74 (West 2003); N. D. Cent. Code §27—20—34
(Lexis Supp. 2003); W. Va. Code §49—5—10 (Lexis 2004).
4.
As the Court notes, Washington State’s decision to prohibit executions of offenders
under 18 was made by a judicial, not legislative, decision. State v. Furman, 122 Wash.
2d 440, 459, 858 P.2d 1092, 1103 (1993), construed the State’s death penalty statute–
which did not set any age limit–to apply only to persons over 18. The opinion found
that construction necessary to avoid what it considered constitutional difficulties, and
did not purport to reflect popular sentiment. It is irrelevant to the question of changed
national consensus.
77
5.
In 1996, Arizona’s Ballot Proposition 102 exposed under-18 murderers to the death
penalty by automatically transferring them out of juvenile courts. The statute
implementing the proposition required the county attorney to “bring a criminal
prosecution against a juvenile in the same manner as an adult if the juvenile is fifteen,
sixteen or seventeen years of age and is accused of … first degree murder.” Ariz. Rev.
Stat. Ann. §13—501 (West 2001). The Arizona Supreme Court has added to this scheme
a constitutional requirement that there be an individualized assessment of the
juvenile’s maturity at the time of the offense. See State v.Davolt, 207 Ariz. 191, 214—
216, 84 P.3d 456, 479—481 (2004).
6.
Florida voters approved an amendment to the State Constitution, which changed the
wording from “cruel or unusual” to “cruel and unusual,” Fla. Const., Art. I, §17 (2003).
See Commentary to 1998 Amendment, 25B Fla. Stat. Ann., p. 180 (West 2004). This
was a response to a Florida Supreme Court ruling that “cruel or unusual” excluded the
death penalty for a defendant who committed murder when he was younger than 17.
See Brennan v. State, 754 So. 2d 1, 5 (Fla. 1999). By adopting the federal
constitutional language, Florida voters effectively adopted our decision
in Stanford v. Kentucky, 492 U.S. 361 (1989). See Weaver, Word May Allow Execution
of 16-Year-Olds, Miami Herald, Nov. 7, 2002, p. 7B.
7.
See, e.g., Enmund v. Florida, 458 U.S. 782, 801 (1982) (“[W]e have no reason to
disagree with th[e] judgment [of the state legislatures] for purposes of construing and
applying theEighth Amendment”); Coker v. Georgia, 433 U.S. 584, 597 (1977) (plurality
opinion) (“[T]he legislative rejection of capital punishment for rape strongly confirms
our own judgment”).
8.
Justice O’Connor agrees with our analysis that no national consensus exists
here, ante, at 8—12 (dissenting opinion). She is nonetheless prepared (like the
majority) to override the judgment of America’s legislatures if it contradicts her own
assessment of “moral proportionality,” ante, at 12. She dissents here only because it
does not. The votes in today’s case demonstrate that the offending of selected lawyers’
moral sentiments is not a predictable basis for law–much less a democratic one.
9.
Justice O’Connor asserts that the Eighth Amendment has a “special character,” in
that it “draws its meaning directly from the maturing values of civilized
society.” Ante, at 19. Nothing in the text reflects such a distinctive character–and we
have certainly applied the “maturing values” rationale to give brave new meaning to
other provisions of the Constitution, such as the Due Process Clause and the Equal
Protection Clause. See, e.g., Lawrence v. Texas, 539 U.S. 558, 571—573 (2003); United
States v. Virginia, 518 U.S. 515, 532—534 (1996); Planned Parenthood of Southeastern
Pa. v. Casey, 505 U.S. 833, 847—850 (1992). Justice O’Connor asserts that an
international consensus can at least “serve to confirm the reasonableness of a
consonant and genuine American consensus.” Ante, at 19. Surely not unless it can also
demonstrate the unreasonableness of such a consensus. Either America’s principles
are its own, or they follow the world; one cannot have it both ways. Finally, Justice
O’Connor finds it unnecessary to consult foreign law in the present case because there
is “no . . . domestic consensus” to be confirmed. Ibid. But since she believes that the
78
Justices can announce their own requirements of “moral proportionality” despite the
absence of consensus, why would foreign law not be relevant to that judgment? If
foreign law is powerful enough to supplant the judgment of the American people,
surely it is powerful enough to change a personal assessment of moral proportionality.
79

Roper v. Simmons

Uploaded by

Copyright:

Available Formats

Roper v. Simmons

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Roper v. Simmons

Uploaded by

Copyright:

Available Formats

justiciapenaladolescente.blogspot.

ROPER V. SIMMONS (03-633) 543 U.S. 551 (2005)

SUPREME COURT OF THE UNITED STATES

CERTIORARI TO THE SUPREME COURT OF MISSOURI

No. 03—633.Argued October 13, 2004–Decided March 1, 2005

(a) The Eighth Amendment’s prohibition against “cruel and unusual

(b) Both objective indicia of consensus, as expressed in particular by the

(1) As in Atkins, the objective indicia of national consensus here–the

offender’s objective immaturity, vulnerability, and lack of true depravity should

(c) The overwhelming weight of international opinion against the juvenile

112 S. W. 3d 397, affirmed.

Opinion of the Court

SUPREME COURT OF THE UNITED STATES

DONALD P. ROPER, SUPERINTENDENT, POTOSI

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

Justice Kennedy delivered the opinion of the Court.

By the afternoon of September 9, Steven Crook had returned home from an

The next day, after receiving information of Simmons’ involvement, police

In mitigation Simmons’ attorneys first called an officer of the Missouri

During closing arguments, both the prosecutor and defense counsel

The trial court found no constitutional violation by reason of ineffective

“a national consensus has developed against the execution of juvenile

We granted certiorari, 540 U.S. 1160 (2004), and now affirm.

“ ‘precept of justice that punishment for crime should be graduated and

The prohibition against “cruel and unusual punishments,” like other

In Thompson v. Oklahoma, 487 U.S. 815 (1988), a plurality of the Court

Bringing its independent judgment to bear on the permissibility of the death

that had been imposed on the 15-year-old

in Stanford that the Court’s independent judgment has no bearing on the

There is, to be sure, at least one difference between the evidence of

same consistency of direction of change has been demonstrated.

Petitioner cannot show national consensus in favor of capital punishment for

As in Atkins, the objective indicia of consensus in this case–the rejection of

A majority of States have rejected the imposition of the death penalty on

Three general differences between juveniles under 18 and adults

The second area of difference is that juveniles are more vulnerable or

possibility exists that a minor’s character deficiencies will be reformed. Indeed,

In Thompson, a plurality of the Court recognized the import of these

Once the diminished culpability of juveniles is recognized, it is evident that

As for deterrence, it is unclear whether the death penalty has a significant or

In concluding that neither retribution nor deterrence provides adequate

It is difficult even for expert psychologists to differentiate between the

Drawing the line at 18 years of age is subject, of course, to the objections

These considerations mean Stanford v. Kentucky should be deemed no

In holding that the death penalty cannot be imposed upon juvenile

Our determination that the death penalty is disproportionate punishment for

As respondent and a number of amici emphasize, Article 37 of the United

U. N. T. S. 3, 28 I. L. M. 1448, 1468—1470 (entered into force Sept. 2, 1990);

Though the international covenants prohibiting the juvenile death penalty

It is proper that we acknowledge the overwhelming weight of international

The Eighth and Fourteenth Amendments forbid imposition of the death

APPENDIX A TO OPINION OF THE COURT

I. STATES THAT PERMIT THE IMPOSITION OF THE DEATH PENALTY ON

Ala. Code §13A—6—2(c) (West 2004) (no express minimum age)

Ariz. Rev. Stat. Ann. §13—703(A) (West Supp. 2004) (same)

Ark. Code Ann. §5—4—615 (Michie 1997) (same)

Del. Code Ann., Tit. 11, (Lexis 1995) (same)

Fla. Stat. §985.225(1) (2003) (same)

Ga. Code Ann. §17—9—3 (Lexis 2004) (same)

Idaho Code §18—4004 (Michie 2004) (same)