NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006

Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

 1.5 Prohibition of Execution of Minors

In Thompson v. Oklahoma, 487 U.S. 815 (1988), the Supreme Court held that executing those who were under the age of 16 at the time of their offense violates the Eighth Amendment’s cruel and unusual punishment prohibition. The Court based its conclusion on society’s “evolving standards of decency,” as reflected in existing legislation, and on the reduced culpability of juveniles due to their lesser experience, maturity, and education. A year later, in Stanford v. Kentucky, 492 U.S. 361 (1989), the Court held that the imposition of death sentences upon individuals who were 16 or 17 years old at the time of their crime, however, does not violate the Eighth Amendment. The Court found no clear societal consensus against such executions reflected in the relevant state or federal law.

Following the decision in Stanford, the Supreme Court reconsidered the issue and held in Roper v Simmons, 543 U.S. 551 (2005), that the Eighth and Fourteenth Amendments forbid the imposition of the death penalty on those who were under the age of 18 at the time their crimes were committed. The Court said that, as in Atkins v. Virginia, 536 U.S. 304 (2002), the objective indicia of national consensus-- 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 juvenile as “categorically less culpable than the average criminal.” The Court concluded that both objective indicia of consensus, as expressed in particular by legislative enactments and the Court’s own determination in the exercise of its independent judgment, demonstrate that the death penalty is a disproportionate punishment for juveniles. 

Additionally, by statute, the imposition of the death penalty for federal crimes is limited to those over eighteen at the time of the offense, see infra § 5.1.

Prior to the decision in Roper, California, Montana, and Oregon prohibited executing defendants who were under the age of 18 during the commission of the crime, and Nevada prohibited executing defendants who were under the age of 16 during the commission of the crime. Also, it has been held by the Washington Supreme Court in State v. Furman, 122 Wash. 2d 440, 858 P.2d 1092 (1993) that a person under eighteen years old when the crime was committed cannot be sentenced to death. In 2005 Nevada enacted legislation raising the threshold age for imposition of the death penalty to 18.

Roper v. Simmons, 543 U.S. 551 (2005) (holding that 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).

In re Stanford, 537 U.S. 968 (2002) (mem.) (denying petition for writ of habeas corpus; but see dissenting opinion of Stevens, J. (joined by Souter, J., Ginsburg, J., and Breyer, J.,), expressing view that there were no valid procedural objections to reconsideration of issue of whether Eighth Amendment prohibits capital punishment for offense committed by one under age of eighteen, and that given decision in Atkins v. Virginia, Court should reconsider issue; noting that since Stanford v. Kentucky was decided in 1989, four state legislatures and the Supreme Court of Washington have forbidden such execution).

Patterson v. Texas, 536 U.S. 984 (2002) (mem.) (denying stay of execution of sentence of death for crime petitioner committed when seventeen; but see dissenting opinions of Stevens, J. and Ginsburg, J. (joined by Breyer, J.). expressing view that it was time to revisit issue of whether Eighth Amendment prohibits capital punishment for crime committed while under eighteen).

Stanford v. Kentucky, 492 U.S. 361 (1989) (holding Eighth Amendment not violated by imposition of death sentence on sixteen- and seventeen-year-olds; not contrary to “evolving standards of decency” because pattern of existing legislation insufficient to establish societal consensus against execution of sixteen- and seventeen-year-olds).

Thompson v. Oklahoma, 487 U.S. 815 (1988) (holding Eighth Amendment, defined by “evolving standards of decency,” violated by execution of those under sixteen when crime committed because state statutes and jury determinations show societal consensus against such execution; juveniles receive reduced culpability because less experienced, mature, educated, and intelligent, and more susceptible to influence than adults).

Eddings v. Oklahoma, 455 U.S. 104 (1982) (holding mitigating evidence of family history and emotional disturbance must be considered at death sentencing; for sixteen year old defendant, evidence of turbulent family history, abuse, and emotional disturbance especially relevant as mitigating factors; stating youth less mature, responsible than adults).

Lisa K. Arnett, Comment, Death at an Early Age: International Law Arguments Against the Death Penalty for Juveniles, 57 U. Cin. L. Rev. 245 (1988) (reviewing Thompson in light of international law regarding death penalty for juveniles).

Laura Dalton, Note, Stanford v. Kentucky and Wilkins v. Missouri: A Violation of An Emerging Rule of Customary International Law, 32 Wm. & Mary L. Rev. 161 (1990) (summarizing customary international law and treaties regarding death penalty and juveniles, and U.S. reliance and duty to follow, and critiques Stanford in light of international law).

Katherine Hunt Federle, Emancipation and Execution: Transferring Children to Criminal Court in Capital Cases, 1996 Wis. L. Rev. 447 (1996) (arguing against judicial transfer provisions allowing minors to be tried as adults and lowering age required for adult trial; proposing alternative analysis for constitutionality of a juvenile death penalty and need for reform).

Robert P. Gritton, Note, Capital Punishment: New Weapons in the Sentencing Process, 24 Ga. L. Rev. 423 (1990) (summarizing 1990 Supreme Court philosophy on death penalty and modern effect of Supreme Court rulings on death penalty for juveniles and mentally retarded).

Joseph L. Hoffman, On the Perils of Line-Drawing: Juveniles and the Death Penalty, 40 Hastings L.J. 229 (1989) (analyzing retributive purpose and effect of juvenile death penalty, arguing ban on juvenile death penalty cannot be supported by retributive justice principles).

Sherri Jackson, Note, Too Young to Die–Juveniles and the Death Penalty–A Better Alternative to Killing Our Children: Youth Empowerment, 22 New Eng. J. on Crim. & Civ. Confinement 391 (1996) (arguing that imposition of death penalty on juveniles is cruel and unusual punishment, and offering alternatives to respond to juvenile offenses).

Jennifer Seibring Marcotte, Comment, Death Penalty for Minors: Who Should Decide?, 20 S. Ill. U. L.J. 621 (1996) (arguing against Supreme Court’s arbitrarily established minimum age for death sentencing and that it should be left to state legislatures).

Tanya M. Perfecky, Note, Children, the Death Penalty and the Eighth Amendment: An Analysis of Stanford v. Kentucky, 35 Vill. L. Rev. 641 (1990) (analyzing Stanford in light of precedent, American norms, and international law and custom on execution of minors, and arguing Stanford holding inadequate).