Stanford v. Kentucky/Dissent Brennan

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I believe that to take the life of a person as punishment for a crime committed when below the age of 18 is cruel and unusual, and hence is prohibited by the Eighth Amendment. [p383]

The method by which this Court assesses a claim that a punishment is unconstitutional because it is cruel and unusual is established by our precedents, and it bears little resemblance to the method four Members of the Court apply in this case. To be sure, we begin the task of deciding whether a punishment is unconstitutional by reviewing legislative enactments and the work of sentencing juries relating to the punishment in question to determine whether our Nation has set its face against a punishment to an extent that it can be concluded that the punishment offends our "evolving standards of decency." Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). The Court undertakes such an analysis in this case. Ante at 370-373. But JUSTICE SCALIA, in his plurality opinion on this point, ante, at 374-380, would treat the Eighth Amendment inquiry as complete with this investigation. I agree with JUSTICE O'CONNOR, ante at 382, that a more searching inquiry is mandated by our precedents interpreting the Cruel and Unusual Punishments Clause. In my view, that inquiry must in this case go beyond age-based statutory classifications relating to matters other than capital punishment, cf. ante at 382 (O'CONNOR, J., concurring in part and concurring in judgment), and must also encompass what JUSTICE SCALIA calls, with evident but misplaced disdain, "ethicoscientific" evidence. Only then can we be in a position to judge, as our cases require, whether a punishment is unconstitutionally excessive, either because it is disproportionate, given the culpability of the offender, or because it serves no legitimate penal goal.


Our judgment about the constitutionality of a punishment under the Eighth Amendment is informed, though not determined, see infra at 391, by an examination of contemporary attitudes toward the punishment, as evidenced in the actions of legislatures and of juries. McCleskey v. Kemp, 481 U.S. 279, 300 (1987); Coker v. Georgia, 433 U.S. 584, 592 (1977) [p384] (plurality opinion). The views of organizations with expertise in relevant fields and the choices of governments elsewhere in the world also merit our attention as indicators whether a punishment is acceptable in a civilized society.

I A[edit]

The Court's discussion of state laws concerning capital sentencing, ante at 370-372, gives a distorted view of the evidence of contemporary standards that these legislative determinations provide. Currently, 12 of the States whose statutes permit capital punishment specifically mandate that offenders under age 18 not be sentenced to death. Ante at 370-371, n. 2. When one adds to these 12 States the 15 (including the District of Columbia) in which capital punishment is not authorized at all, [1] it appears that the governments in fully 27 of the States have concluded that no one under 18 should face the death penalty. A further three States explicitly refuse to authorize sentences of death for those who committed their offense when under 17, ante at 370, n. 2, making a total of 30 States that would not tolerate the execution of petitioner Wilkins. Congress' most recent enactment of a death penalty statute also excludes those under 18. [p385] Pub.L. 100-690, § 7001 (1), 102 Stat. 4390, 21 U.S.C. § 848(1) (1988 ed.).

In 19 States that have a death penalty, no minimum age for capital sentences is set in the death penalty statute. See Thompson v. Oklahoma, 487 U.S. 815, 826-827, and n. 26 (1988), and n. 1, supra. The notion that these States have consciously authorized the execution of juveniles derives from the congruence in those jurisdictions of laws permitting state courts to hand down death sentences, on the one hand, and, on the other, statutes permitting the transfer of offenders under 18 from the juvenile to state court systems for trial in certain circumstances. See Thompson, supra, at 867-868, and n. 3 (SCALIA, J., dissenting). I would not assume, however, in considering how the States stand on the moral issue that underlies the constitutional question with which we are presented, that a legislature that has never specifically considered the issue has made a conscious moral choice to permit the execution of juveniles. See 487 U.S. at 826-827, n. 24 (plurality opinion). On a matter of such moment that most States have expressed an explicit and contrary judgment, the decisions of legislatures that are only implicit, and that lack the "earmarks of careful consideration that we have required for other kinds of decisions leading to the death penalty," id. at 857 (O'CONNOR, J., concurring in judgment), must count for little. I do not suggest, of course, that laws of these States cut against the constitutionality of the juvenile death penalty — only that accuracy demands that the baseline for our deliberations should be that 27 States refuse to authorize a sentence of death in the circumstances of petitioner Stanford's case, and 30 would not permit Wilkins' execution; that 19 States have not squarely faced the question; and that only the few remaining jurisdictions have explicitly set an age below 18 at which a person may be sentenced to death.

I B[edit]

The application of these laws is another indicator the Court agrees to be relevant. The fact that juries have on occasion [p386] sentenced a minor to death shows, the Court says, that the death penalty for adolescents is not categorically unacceptable to juries. Ante at 374. This, of course, is true; but it is not a conclusion that takes Eighth Amendment analysis very far. Just as we have never insisted that a punishment have been rejected unanimously by the States before we may judge it cruel and unusual, so we have never adopted the extraordinary view that a punishment is beyond Eighth Amendment challenge if it is sometimes handed down by a jury. See, e.g., Enmund v. Florida, 458 U.S. 782, 792 (1982) (holding the death penalty cruel and unusual punishment for participation in a felony in which an accomplice commits murder, though about a third of American jurisdictions authorized such punishment, and at least six nontriggerman felony murderers had been executed, and three others were on death rows); Coker v. Georgia, 433 U.S. 584, 596-597 (1977) (holding capital punishment unconstitutional for the rape of an adult woman, though 72 persons had been executed for rape in this country since 1955, see Enmund, supra, at 795, and though Georgia juries handed down six death sentences for rape between 1973 and 1977). Enmund and Coker amply demonstrate that it is no "requisite" of finding an Eighth Amendment violation that the punishment in issue be "categorically unacceptable to prosecutors and juries," ante at 374 — and, evidently, resort to the Cruel and Unusual Punishment Clause would not be necessary to test a sentence never imposed because categorically unacceptable to juries.

Both in absolute and in relative terms, imposition of the death penalty on adolescents is distinctly unusual. Adolescent offenders make up only a small proportion of the current death-row population: 30 out of a total of 2,186 inmates, or 1.37 percent. NAACP Legal Defense and Educational Fund, Inc. (LDF), Death Row, U.S.A. (Mar. 1, 1989). [2] [p387] Eleven minors were sentenced to die in 1982; 9 in 1983; 6 in 1984; 5 in 1985; 7 in 1986; and 2 in 1987. App. N to Brief for the Office of the Capital Collateral Representative for the State of Florida as Amicus Curiae (hereafter OCCR Brief). Forty-one, or 2.3 percent, of the 1,813 death sentences imposed between January 1, 1982, and June 30, 1988, were for juvenile crimes. Id. at 15, and App.R. And juvenile offenders are significantly less likely to receive the death penalty than adults. During the same period, there were 97,086 arrests of adults for homicide, and 1,772 adult death sentences, or 1.8 percent; and 8,911 arrests of minors for homicide, compared to 41 juvenile death sentences, or 0.5 percent. Ibid., and Apps. Q and R. [3]

The Court speculates that this very small number of capital sentences imposed on adolescents indicates that juries have considered the youth of the offender when determining sentence, and have reserved the punishment for rare cases in which it is nevertheless appropriate. Ante at 374. The State of Georgia made a very similar and equally conjectural argument in Coker — that,

as a practical matter, juries simply reserve the extreme sanction for extreme cases of rape, and that recent experience . . . does not prove that jurors consider the death penalty to be a disproportionate punishment for every conceivable instance of rape.

433 U.S. at 597. This Court, however, summarily rejected this claim, noting simply that, in the vast majority of cases, Georgia juries had not imposed the death sentence for rape. It is certainly true that, in the vast majority of cases, juries have not sentenced juveniles to death, and it seems to me perfectly proper to conclude that a sentence so rarely imposed is "unusual." [p388]

I C[edit]

Further indicators of contemporary standards of decency that should inform our consideration of the Eighth Amendment question are the opinions of respected organizations. Thompson, 487 U.S. at 830 (plurality opinion). Where organizations with expertise in a relevant area have given careful consideration to the question of a punishment's appropriateness, there is no reason why that judgment should not be entitled to attention as an indicator of contemporary standards. There is no dearth of opinion from such groups that the state-sanctioned killing of minors is unjustified. A number, indeed, have filed briefs amicus curiae in these cases, in support of petitioners. [4] The American Bar Association has adopted a resolution opposing the imposition of capital punishment upon any person for an offense committed while under age 18, [5] as has the National Council of Juvenile [p389] and Family Court Judges. [6] The American Law Institute's Model Penal Code similarly includes a lower age limit of 18 for the death sentence. [7] And the National Commission on Reform of the Federal Criminal Laws also recommended that 18 be the minimum age. [8]

Our cases recognize that objective indicators of contemporary standards of decency in the form of legislation in other countries is also of relevance to Eighth Amendment analysis. Thompson, supra, at 830-831; Enmund, 458 U.S. at 796, n. 22; Coker, 433 U.S. at 596, n. 10; Trop v. Dulles, 356 U.S. at 102, and n. 35. Many countries, of course — over 50, including nearly all in Western Europe — have formally abolished the death penalty, or have limited its use to exceptional crimes such as treason. App. to Brief for Amnesty International as Amicus Curiae. Twenty-seven others do not in practice impose the penalty. Ibid. Of the nations that retain capital punishment, a majority — 65 — prohibit the execution of juveniles. Ibid. Sixty-one countries retain capital punishment and have no statutory provision exempting juveniles, though some of these nations are ratifiers of international treaties that do prohibit the execution of juveniles. Ibid. Since 1979, Amnesty International has recorded only eight executions of offenders under 18 throughout the world, three of these in the United States. The other five executions were carried out in Pakistan, Bangladesh, Rwanda, and Barbados. [9] In addition to national laws, three leading human rights treaties ratified or signed by the United States [p390] explicitly prohibit juvenile death penalties. [10] Within the world community, the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved.

I D[edit]

Together, the rejection of the death penalty for juveniles by a majority of the States, the rarity of the sentence for juveniles, both as an absolute and a comparative matter, the decisions of respected organizations in relevant fields that this punishment is unacceptable, and its rejection generally throughout the world, provide to my mind a strong grounding for the view that it is not constitutionally tolerable that certain States persist in authorizing the execution of adolescent offenders. It is unnecessary, however, to rest a view that the Eighth Amendment prohibits the execution of minors solely upon a judgment as to the meaning to be attached to the evidence of contemporary values outlined above, for the execution of juveniles fails to satisfy two well-established and independent Eighth Amendment requirements — that a [p391] punishment not be disproportionate, and that it make a contribution to acceptable goals of punishment.


JUSTICE SCALIA forthrightly states in his plurality opinion that Eighth Amendment analysis is at an end once legislation and jury verdicts relating to the punishment in question are analyzed as indicators of contemporary values. A majority of the Court rejected this revisionist view as recently as last Term, see Thompson, 487 U.S. at 833-838 (plurality opinion); id. at 853-854 (opinion of O'CONNOR, J.), and does so again in this case and in Penry v. Lynaugh, ante p. 302. We need not and should not treat this narrow range of factors as determinative of our decision whether a punishment violates the Constitution because it is excessive.

The Court has explicitly stated that "the attitude of state legislatures and sentencing juries do not wholly determine" a controversy arising under the Eighth Amendment, Coker, 433 U.S. at 597 (plurality opinion) (emphasis added), because

the Constitution contemplates that, in the end, our own judgment will be brought to bear on the question of the [constitutional] acceptability of

a punishment, ibid. See also id. at 603-604, n. 2 (Powell, J., concurring in judgment) ("[T]he ultimate decision as to the appropriateness of the death penalty under the Eighth Amendment . . . must be decided on the basis of our own judgment in light of the precedents of this Court"); Enmund, 458 U.S. at 797 ("Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty" in a particular class of cases).

JUSTICE SCALIA's approach would largely return the task of defining the contours of Eighth Amendment protection to political majorities. But

[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and [p392] officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

West Virginia Board of Education v. Barnette, 319 U.S. 624, 638 (1943). Compare ante at 375-377, with Whitley v. Albers, 475 U.S. 312, 318 (1986) ("The language of the Eighth Amendment . . . manifests ‘an intention to limit the power of those entrusted with the criminal-law function of government'"). The promise of the Bill of Rights goes unfulfilled when we leave "[c]onstitutional doctrine [to] be formulated by the acts of those institutions which the Constitution is supposed to limit," Radin, The Jurisprudence of Death, 126 U.Pa.L.Rev. 989, 1036 (1978), as is the case under JUSTICE SCALIA's positivist approach to the definition of citizens' rights. This Court abandons its proven and proper role in our constitutional system when it hands back to the very majorities the Framers distrusted the power to define the precise scope of protection afforded by the Bill of Rights, rather than bringing its own judgment to bear on that question, after complete analysis. Despite JUSTICE SCALIA's view to the contrary, however,

our cases . . . make clear that public perceptions of standards of decency with respect to criminal sanctions are not conclusive. A penalty also must accord with "the dignity of man," which is the "basic concept underlying the Eighth Amendment." . . . This means, at least, that the punishment not be "excessive." . . . [T]he inquiry into "excessiveness" has two aspects. First, the punishment must not involve the unnecessary and wanton infliction of pain. . . . Second, the punishment must not be grossly out of proportion to the severity of the crime.

Gregg v. Georgia, 428 U.S. 153, 173 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.). [p393] Thus, in addition to asking whether legislative or jury rejection of a penalty shows that "society has set its face against it," ante at 378, the Court asks whether "a punishment is ‘excessive' and unconstitutional" because there is disproportion "between the punishment imposed and the defendant's blameworthiness," ante at 382 (opinion of O'CONNOR, J.), or because it

makes no measurable contribution to acceptable goals of punishment, and hence is nothing more than the purposeless and needless imposition of pain and suffering,

Coker, supra, at 592 (plurality opinion). See, e.g., Penry, ante at 335 (opinion of O'CONNOR, J.); ante at 342-343 (BRENNAN, J., concurring in part and dissenting in part).


There can be no doubt at this point in our constitutional history that the Eighth Amendment forbids punishment that is wholly disproportionate to the blameworthiness of the offender. "The constitutional principle of proportionality has been recognized explicitly in this Court for almost a century." Solem v. Helm, 463 U.S. 277, 286 (1983). Usually formulated as a requirement that sentences not be "disproportionate to the crime committed," id., at 284; see, e.g., Weems v. United States, 217 U.S. 349 (1910); O'Neil v. Vermont, 144 U.S. 323, 339-340 (1892) (Field, J., dissenting), the proportionality principle takes account not only of the "injury to the person and to the public" caused by a crime, but also of the "moral depravity" of the offender. Coker, supra, at 598. The offender's culpability for his criminal acts — "the degree of the defendant's blameworthiness," Enmund, supra, at 815 (O'CONNOR, J., dissenting); see also id. at 798 (opinion of the Court) — is thus of central importance to the constitutionality of the sentence imposed. Indeed, this focus on a defendant's blameworthiness runs throughout our constitutional jurisprudence relating to capital sentencing. See, e.g., Booth v. Maryland, 482 U.S. 496, 502 (1987) (striking down state statute requiring consideration by sentencer of evidence other than defendant's record and characteristics and the circumstances [p394] of the crime, which had no "bearing on the defendant's ‘personal responsibility and moral guilt'"); California v. Brown, 479 U.S. 538, 545 (1987) (an "emphasis on culpability in sentencing decisions has long been reflected in Anglo-American jurisprudence. . . . Lockett and Eddings reflect the belief that punishment should be directly related to the personal culpability of the criminal defendant") (O'CONNOR, J., concurring).

Proportionality analysis requires that we compare "the gravity of the offense," understood to include not only the injury caused, but also the defendant's culpability, with "the harshness of the penalty." Solem, supra, at 292. In my view, juveniles so generally lack the degree of responsibility for their crimes that is a predicate for the constitutional imposition of the death penalty that the Eighth Amendment forbids that they receive that punishment.

III A[edit]

Legislative determinations distinguishing juveniles from adults abound. These age-based classifications reveal much about how our society regards juveniles as a class, and about societal beliefs regarding adolescent levels of responsibility. See Thompson, 487 U.S. at 823-825 (plurality opinion).

The participation of juveniles in a substantial number of activities open to adults is either barred completely or significantly restricted by legislation. All States but two have a uniform age of majority, and have set that age at 18 or above. OCCR Brief, App. A. No State has lowered its voting age below 18. Id., App. C; see Thompson, supra, at 839, App. A. Nor does any State permit a person under 18 to serve on a jury. OCCR Brief, App. B; see Thompson, supra, at 840, App. B. Only four States ever permit persons below 18 to marry without parental consent. OCCR Brief, App. D; see Thompson, supra, at 843, App. D. Thirty-seven States have specific enactments requiring that a patient have attained 18 before she may validly consent to medical treatment. OCCR Brief, App. E. Thirty-four [p395] States require parental consent before a person below 18 may drive a motor car. Id., App. F; see Thompson, supra, at 842, App. C. Legislation in 42 States prohibits those under 18 from purchasing pornographic materials. OCCR Brief, App. G; see Thompson, supra, at 845, App. E. Where gambling is legal, adolescents under 18 are generally not permitted to participate in it, in some or all of its forms. OCCR Brief, App. H; see Thompson, supra, at 847, App. F. In these and a host of other ways, minors are treated differently from adults in our laws, which reflects the simple truth derived from communal experience that juveniles, as a class, have not the level of maturation and responsibility that we presume in adults and consider desirable for full participation in the rights and duties of modern life.

The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult.

Thompson, supra, at 835 (plurality opinion). Adolescents "are more vulnerable, more impulsive, and less self-disciplined than adults," and are without the same "capacity to control their conduct and to think in long-range terms." Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders, Confronting Youth Crime 7 (1978) (hereafter Task Force). They are particularly impressionable and subject to peer pressure, see Eddings v. Oklahoma, 455 U.S. 104, 115 (1982), and prone to "experiment, risk-taking and bravado," Task Force 3. They lack "experience, perspective, and judgment." Bellotti v. Baird, 443 U.S. 622, 635 (1979). See generally Thompson, supra, at 843-844, n. 43; Brief for American Society for Adolescent Psychiatry et al. as Amici Curiae (reviewing scientific evidence). Moreover, the very paternalism that our society shows toward youths and the dependency it forces upon them mean that society bears a responsibility for the actions of juveniles that it does not for the actions of adults who are, at least theoretically, free to make their own choices:

youth crime . . . is not exclusively the offender's fault; offenses by [p396] the young represent a failure of family, school, and the social system, which share responsibility for the development of America's youth.

Task Force 7.

To be sure, the development of cognitive and reasoning abilities and of empathy, the acquisition of experience upon which these abilities operate and upon which the capacity to make sound value judgments depends, and in general the process of maturation into a self-directed individual fully responsible for his or her actions, occur by degrees. See, e.g., G. Manaster, Adolescent Development and the Life Tasks (1977). But the factors discussed above indicate that 18 is the dividing line that society has generally drawn, the point at which it is thought reasonable to assume that persons have an ability to make, and a duty to bear responsibility for their, judgments. Insofar as age 18 is a necessarily arbitrary social choice as a point at which to acknowledge a person's maturity and responsibility, given the different developmental rates of individuals, it is, in fact,

a conservative estimate of the dividing line between adolescence and adulthood. Many of the psychological and emotional changes that an adolescent experiences in maturing do not actually occur until the early 20s.

Brief for American Society for Adolescent Psychiatry et al. as Amici Curiae 4 (citing social scientific studies).

III B[edit]

There may be exceptional individuals who mature more quickly than their peers, and who might be considered fully responsible for their actions prior to the age of 18, despite their lack of the experience upon which judgment depends. [11] In my view, however, it is not sufficient to accommodate the [p397] facts about juveniles that an individual youth's culpability may be taken into account in the decision to transfer him or her from the juvenile to the adult court system for trial, or that a capital sentencing jury is instructed to consider youth and other mitigating factors. I believe that the Eighth Amendment requires that a person who lacks that full degree of responsibility for his or her actions associated with adulthood not be sentenced to death. Hence it is constitutionally inadequate that a juvenile offender's level of responsibility be taken into account only along with a host of other factors that the court or jury may decide outweigh that want of responsibility.

Immaturity that constitutionally should operate as a bar to a disproportionate death sentence does not guarantee that a minor will not be transferred for trial to the adult court system. Rather, the most important considerations in the decision to transfer a juvenile offender are the seriousness of the offense, the extent of prior delinquency, and the response to prior treatment within the juvenile justice system. National Institute for Juvenile Justice and Delinquency, United States Dept. of Justice, Major Issues in Juvenile Justice Information and Training, Youth in Adult Courts: Between Two Worlds 211 (1982). Psychological, intellectual, and other personal characteristics of juvenile offenders receive little attention at the transfer stage, and cannot account for differences between those transferred and those who remain in the juvenile court system. See Solway, Hays, Schreiner, & Cansler, Clinical Study of Youths Petitioned for Certification as Adults, 46 Psychological Rep. 1067 (1980). Nor is an adolescent's lack of full culpability isolated at the sentencing stage as a factor that determinatively bars a death sentence. A jury is free to weigh a juvenile offender's youth and lack of full responsibility against the heinousness of the crime and other aggravating factors — and, finding the aggravating factors weightier, to sentence even the most immature of 16- or 17-year olds to be killed. By no stretch of the imagination, [p398] then, are the transfer and sentencing decisions designed to isolate those juvenile offenders who are exceptionally mature and responsible, and who thus stand out from their peers as a class.

It is thus unsurprising that individualized consideration at transfer and sentencing has not in fact ensured that juvenile offenders lacking an adult's culpability are not sentenced to die. Quite the contrary. Adolescents on death row appear typically to have a battery of psychological, emotional, and other problems going to their likely capacity for judgment and level of blameworthiness. A recent diagnostic evaluation of all 14 juveniles on death rows in four States is instructive. Lewis et al., Neuropsychiatric, Psychoeducational, and Family Characteristics of 14 Juveniles Condemned to Death in the United States, 145 Am.J.Psychiatry 584 (1988). Seven of the adolescents sentenced to die were psychotic when evaluated, or had been so diagnosed in earlier childhood; four others had histories consistent with diagnoses of severe mood disorders; and the remaining three experienced periodic paranoid episodes, during which they would assault perceived enemies. Id. at 585, and Table 3. Eight had suffered severe head injuries during childhood, id. at 585, and Table 1, and nine suffered from neurological abnormalities, id. at 585, and Table 2. Psychoeducational testing showed that only 2 of these death-row inmates had IQ scores above 90 (that is, in the normal range) — and both individuals suffered from psychiatric disorders — while 10 offenders showed impaired abstract reasoning on at least some tests. Id. at 585-586, and Tables 3 and 4. All but two of the adolescents had been physically abused, and five sexually abused. Id. at 586-587, and Table 5. Within the families of these children, violence, alcoholism, drug abuse, and psychiatric disorders were commonplace. Id. at 587, and Table 5.

The cases under consideration today certainly do not suggest that individualized consideration at transfer and sentencing [p399] ensure that only exceptionally mature juveniles, as blameworthy for their crimes as an adult, are sentenced to death. Transferring jurisdiction over Kevin Stanford to Circuit Court, the Juvenile Division of the Jefferson, Kentucky, District Court nevertheless found that Stanford, who was 17 at the time of his crime,

has a low internalization of the values and morals of society and lacks social skills. That he does possess an institutionalized personality and has, in effect, because of his chaotic family life and lack of treatment, become socialized in delinquent behavior. That he is emotionally immature, and could be amenable to treatment if properly done on a long-term basis of psychotherap[eu]tic intervention and reality-based therapy for socialization and drug therapy in a residential facility.

App. in No. 87-5765, p. 9.

At the penalty phase of Stanford's trial, witnesses testified that Stanford, who lived with various relatives, had used drugs from the age of about 13, and that his drug use had caused changes in his personality and behavior. 10 Record in No. 87-5765, pp. 1383-1392, 1432. Stanford had been placed at times in juvenile treatment facilities, and a witness who had assessed him upon his admission to an employment skills project found that he lacked age-appropriate social interaction skills; had a history of drug abuse; and wanted for family support or supervision. Id. at 1408; see also id. at 1440-1442.

Heath Wilkins was 16 when he committed the crime for which Missouri intends to kill him. The juvenile court, in ordering him transferred for trial to adult court, focused upon the viciousness of Wilkins' crime, the juvenile system's inability to rehabilitate him in the 17 months of juvenile confinement available, and the need to protect the public, though it also mentioned that Wilkins was, in its view, "an experienced person, and mature in his appearance and habits." App. in No. 87-6026, p. 5. The Circuit Court found Wilkins [p400] competent to stand trial. [12] Record in No. 87-6026, p. 42. Wilkins then waived counsel, with the avowed intention of pleading guilty and seeking the death penalty, id. at 42, 55, and the Circuit Court accepted the waiver, id. at 84, and later Wilkins' guilty plea, id. at 144-145. Wilkins was not represented by counsel at sentencing. See id. at 188-190. Presenting no mitigating evidence, he told the court he would prefer the death penalty to life in prison, id. at 186-187 — "[o]ne I fear, the other one I don't," id. at 295 — and after hearing evidence from the State, the Court sentenced Wilkins to die. Wilkins took no steps to appeal, and objected to an amicus' efforts on his behalf. The Missouri Supreme Court, however, ordered an evaluation to determine whether Wilkins was competent to waive his right to appellate counsel. Concluding that Wilkins was incompetent to waive his rights, [13] the state-appointed forensic psychiatrist found that Wilkins "suffers from a mental disorder" that affects his "reasoning and impairs his behavior." App. in No. 87-6026, p. 74. It would be incredible to suppose, given this psychiatrist's conclusion and his summary of Wilkins' past, set out in the margin, [14] that Missouri's transfer and sentencing schemes [p401] had operated to identify in Wilkins a 16-year old mature and culpable beyond his years.

III C[edit]

Juveniles very generally lack that degree of blameworthiness that is, in my view, a constitutional prerequisite for the [p402] imposition of capital punishment under our precedents concerning the Eighth Amendment proportionality principle. The individualized consideration of an offender's youth and culpability at the transfer stage and at sentencing has not operated to ensure that the only offenders under 18 singled out for the ultimate penalty are exceptional individuals whose level of responsibility is more developed than that of their peers. In that circumstance, I believe that the same categorical assumption that juveniles as a class are insufficiently mature to be regarded as fully responsible that we make in so many other areas is appropriately made in determining whether minors may be subjected to the death penalty. As we noted in Thompson, 487 U.S. at 825-826, n. 23, it would be ironic if the assumptions we so readily make about minors as a class were suddenly unavailable in conducting proportionality analysis. I would hold that the Eighth Amendment prohibits the execution of any person for a crime committed below the age of 18.


Under a second strand of Eighth Amendment inquiry into whether a particular sentence is excessive, and hence unconstitutional, we ask whether the sentence makes a measurable contribution to acceptable goals of punishment. Thompson, supra, at 833; Enmund v. Florida, 458 U.S. at 798; Coker v. Georgia, 433 U.S. at 592; Gregg v. Georgia, 428 U.S. at 173. The two "principal social purposes" of capital punishment are said to be "retribution and the deterrence of capital crimes by prospective offenders." Gregg, supra, at 183; see Enmund, supra, at 798. Unless the death penalty applied to persons for offenses committed under 18 measurably contributes to one of these goals, the Eighth Amendment prohibits it. See ibid.

"[R]etribution as a justification for executing [offenders] very much depends on the degree of [their] culpability." Id. at 800. I have explained in Part III, supra, why I believe juveniles lack the culpability that makes a crime so extreme [p403] that it may warrant, according to this Court's cases, the death penalty; and why we should treat juveniles as a class as exempt from the ultimate penalty. These same considerations persuade me that executing juveniles "does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts." Id. at 801. See Thompson, supra, at 836-837. A punishment that fails the Eighth Amendment test of proportionality because disproportionate to the offender's blameworthiness, by definition, is not justly deserved.

Nor does the execution of juvenile offenders measurably contribute to the goal of deterrence. Excluding juveniles from the class of persons eligible to receive the death penalty will have little effect on any deterrent value capital punishment may have for potential offenders who are over 18: these adult offenders may of course remain eligible for a death sentence. The potential deterrent effect of juvenile executions on adolescent offenders is also insignificant. The deterrent value of capital punishment rests

on the assumption that we are rational beings who always think before we act, and then base our actions on a careful calculation of the gains and losses involved.

Gardiner, The Purposes of Criminal Punishment, 21 Mod.L.Rev. 117, 122 (1958). As the plurality noted in Thompson, supra, at 837,

[t]he likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent.

First, juveniles "have less capacity . . . to think in long-range terms than adults," Task Force 7, and their careful weighing of a distant, uncertain, and indeed highly unlikely consequence prior to action is most improbable. [15] In addition, juveniles have little [p404] fear of death, because they have "a profound conviction of their own omnipotence and immortality." Miller, Adolescent Suicide: Etiology and Treatment, in 9 Adolescent Psychiatry 327, 329 (S. Feinstein, J. Looney, A. Schwartzberg, & A. Sorosky eds. 1981). See also, e.g., Gordon, The Tattered Cloak of Immortality, in Adolescence and Death 16, 27 (C. Corr & J. McNeil eds. 1986) (noting prevalence of adolescent risk-taking); Brief for American Society for Adolescent Psychiatry et al. as Amici Curiae 5-6 (citing research). Because imposition of the death penalty on persons for offenses committed under the age of 18 makes no measurable contribution to the goals of either retribution or deterrence, it is "nothing more than the purposeless and needless imposition of pain and suffering," Coker, supra, at 592, and is thus excessive and unconstitutional.


There are strong indications that the execution of juvenile offenders violates contemporary standards of decency: a majority of States decline to permit juveniles to be sentenced to death; imposition of the sentence upon minors is very unusual even in those States that permit it; and respected organizations with expertise in relevant areas regard the execution of juveniles as unacceptable, as does international opinion. These indicators serve to confirm, in my view, my conclusion that the Eighth Amendment prohibits the execution of persons for offenses they committed while below the age of 18, because the death penalty is disproportionate when applied to such young offenders and fails measurably to serve the goals of capital punishment. I dissent.


^ . See Thompson v. Oklahoma, 487 U.S. 815, 826, and n. 25 (1988), listing 14 States. The 15th State to have rejected capital punishment altogether is Vermont. Vermont repealed a statute that had allowed capital punishment for some murders. See Vt.Stat.Ann., Tit. 13, § 2303 (1974 and Supp.1988). The State now provides for the death penalty only for kidnaping with intent to extort money. § 2403. Insofar as it permits a sentence of death, § 2403 was rendered unconstitutional by our decision in Furman v. Georgia, 408 U.S. 238 (1972), because Vermont's sentencing scheme does not guide jury discretion, see Vt.Stat.Ann., Tit. 13, §§ 7101-7107 (1974). Vermont's decision not to amend its only law allowing the death penalty in light of Furman and its progeny, in combination with its repeal of its statute permitting capital punishment for murder, leads to the conclusion that the State rejects capital punishment.

In addition, South Dakota, though it statutorily provides for a death penalty, has sentenced no one to death since Furman, arguably making a 28th State that has abandoned the death penalty.

^ . One person currently on death row for juvenile crimes was sentenced in Maryland, which has since set 18 as the minimum age for its death penalty.

^ . Capital sentences for juveniles would presumably be more unusual still were capital juries drawn from a cross-section of our society, rather than excluding many who oppose capital punishment, see Lockhart v. McCree, 476 U.S. 162 (1986) — a fact that renders capital jury sentences a distinctly weighted measure of contemporary standards.

^ . Briefs for American Bar Association; Child Welfare League of America, National Parents and Teachers Association, National Council on Crime and Delinquency, Children's Defense Fund, National Association of Social Workers, National Black Child Development Institute, National Network of Runaway and Youth Services, National Youth Advocate Program, and American Youth Work Center; American Society for Adolescent Psychiatry and American Orthopsychiatric Association; Defense for Children International-USA; National Legal Aid and Defender Association, and National Association of Criminal Defense Lawyers; Office of Capital Collateral Representative for the State of Florida; and International Human Rights Law Group, as Amici Curiae. See also Briefs for American Baptist Churches, American Friends Service Committee, American Jewish Committee, American Jewish Congress, Christian Church (Disciples of Christ), Mennonite Central Committee, General Conference Mennonite Church, National Council of Churches, General Assembly of the Presbyterian Church, Southern Christian Leadership Conference, Union of American Hebrew Congregations, United Church of Christ Commission for Racial Justice, United Methodist Church General Board of Church and Society, and United States Catholic Conference; West Virginia Council of Churches; and Amnesty International as Amici Curiae.

^ . American Bar Association, Summary of Action of the House of Delegates 17 (1983 Annual Meeting).

^ . National Council of Juvenile and Family Court Judges, Juvenile and Family Court Newsletter, Vol. 19, No. 1, p. 4 (Oct. 1988).

^ . American Law Institute, Model Penal Code §210.6(1)(d) (Proposed Official Draft 1962); American Law Institute, Model Penal Code and Commentaries §210.6, Commentary, p. 133 (1980) ("[C]ivilized societies will not tolerate the spectacle of execution of children").

^ . National Commission on Reform of Federal Criminal Laws, Final Report of the Proposed New Federal Criminal Code § 3603 (1971).

^ . Brief for Amnesty International as Amicus Curiae in Thompson v. Oklahoma, O.T. 1987, No. 86-6169, p. 6.

^ . Article 6(5) of the International Covenant on Civil and Political Rights, Annex to G.A.Res. 2200, 21 U.N. GAOR Res.Supp. (No. 16) 53, U.N.Doc. A/6316 (1966) (signed but not ratified by the United States), reprinted in 6 International Legal Material 368, 370 (1967); Article 4(5) of the American Convention on Human Rights, O.A.S. Official Records, OEA/Ser. K/XVI/1.1, Doc. 65, Rev. 1, Corr. 2 (1970) (same), reprinted in 9 International Legal Material 673, 676 (1970); Article 68 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, (ratified by the United States). See also Resolutions and Decisions of the United Nations Economic and Social Council, Res. 1984/50, U. N. ESCOR Supp. (No. 1), p. 33, U. N. Doc. E/1984/84 (1984) (adopting "safeguards guaranteeing protection of the rights of those facing the death penalty," including the safeguard that "[p]ersons below 18 years of age at the time of the commission of the crime shall not be sentenced to death"), endorsed by the United Nations General Assembly, U.N. GAOR Res. 39/118, U.N.Doc. A/39/51, p. 211, 2, 5 (1985), and adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, p. 83, U.N.Doc. A/Conf. 121/22, U.N. Sales No. E.86.IV.1 (1986).

^ . Delinquent juveniles are unlikely to be among these few. Instead, they will typically be among those persons for whom society's presumption of a capacity for mature judgment at 18 is much too generous. See, e.g., Scharf, Law and the Child's Evolving Legal Conscience, in 1 Advances in Law and Child Development 1, 16 (R. Sprague ed. 1982) (discussing study of delinquents aged 15 to 17, suggesting that the group's mean moral maturity level was below that of average middle-class 10- to 12-year-olds).

^ . Two psychological reports were prepared concerning Wilkins when the issue of his competency to stand trial arose. Neither suggests that Wilkins was exceptionally mature for his age. One found his intellectual functioning "within the average range," App. in No. 87-6026, p. 10, and his "[h]igher order processes," such as reasoning and judgment, to be "within the approximate normal range," id. at 11. The other concluded:

[Wilkins'] capacity to manage and control affect is tenuous and inconsistent, leaving him a subject to impulsive actions as well as arbitrary and capricious thinking which is prone to skirt over details, and considerations for logical systematic thought. He is intolerant of intense affects such as anxiety, depression, or anger, in that such feelings are overwhelming, interfere with his ability to think clearly, and gives rise to impulsive action. He is vulnerable to massive infusions of intense rage which leads to spasms of destructive action. His rage commingles with a profound depressive experience generated by an excruciating sense of lonely alienation whereby he experiences both himself and other people as being lifeless and empty. . . .
He barely experiences ties to others or emp[athe]tic attunement . . . .

Id. at 22.

^ . Wilkins was diagnosed as being of a "Conduct Disorder, Undersocialized-Aggressive Type," with a borderline personality disorder that left him with

difficulty in establishing a pattern of predictable response to stressful situations vacillating between aggression towards others or self-destructive activity.

Id. at 67-68. He had been "exhibiting bizarre behavior, paranoid ideation, and idiosyncratic thinking" since 1982. Id. at 68.

^ . The state-appointed psychiatrist summarized Wilkins' past in his report:

Mr. Wilkins . . . was raised in a rather poor socioeconomic environment [and] reportedly had extremely chaotic upbringing during his childhood. He was physically abused by his mother, sometimes the beatings would last for two hours. . . . As a child, he started robbing houses for knives and money, and loved to set fires. Mr. Wilkins' mother worked at night and slept during the day, thus the children were left alone at night by themselves. He claims that he was started on drugs by his uncle [at age six; see id. at 67]. Apparently he used to shoot BB guns at passing cars. Mr. Wilkins indicated that his mother's boyfriend had a quick temper, and that he hated him. He also started disliking his mother, not only because she punished [him], but also because she stood up for her boyfriend, who was unkind towards [him]. He then decided to poison his mother and boyfriend by placing rat poison in Tylenol capsules. They were informed by his brother about the situation. They secretly emptied the capsules and made him eat them. He was afraid of death, and attempted vomiting by placing [his] fingers in his throat. Then he ended up getting a beating from his mother and boyfriend. At the age of ten, Mr. Wilkins was evaluated at Tri-County Mental Health Center and Western Missouri Mental Health Center. He stayed there for a period of six months. He was then sent to Butterfield Youth's Home, and then to East Range, a residential facility for boys. He started using drugs quite heavily. . . . He also started drinking hard liquor . . . .
At Butterfield, he was very angry at the teachers because they considered him to be "dumb." He showed rather strange behavior there. When he became depressed, he would dance with a net over his head. On another occasion, he cut his wrist and claimed to have had frequent thoughts of suicide. Prior to going to Butterfield, he had jumped off a bridge but the car swerved before he was hit. At Butterfield, he attempted to overdose with alcohol and drugs, and another time with antipsychotic medication, Mellaril. Mr. Wilkins was placed on Mellaril because he was "too active." He stayed at . . . Butterfield . . . for three and one half years between the ages of 10 through 13 1/2. After that, he was transferred to Crittenton Center, since it was closer to his mother's residence. He stayed there only for four or five months, and was then kicked out. The court gave him permission to go home on probation. At this time, his mother had started seeing another boyfriend, and Mr. Wilkins apparently liked him. He continued the usage of alcohol and drugs while at school, continued to break into houses stealing money, jewelry, and knives, and generally stole money to spend at the arcade. On one occasion, he ran away to Southern California. He was introduced to amphetamines there, and spent all his money. . . . After his return [home, he] was charged with a stolen knife and was sent to [a] Detention Center . . . . At age 15, he was sent to the Northwest Regional Youth Services in Kansas City. There, an attempt at prescribing Thorazine (major tranquilizer) was made. After this, Mr. Wilkins was placed in a foster home. He ran away from the foster home . . . . Beginning in May of 1985, he lived on the streets . . . .
Records from Butterfield . . . indicated that Mr. Wilkins' natural father was committed to a mental institution in Arkansas, and there was considerable amount of physical abuse that existed in the family. . . . In the educational testing, he gave rather unusual responses. For example, when asked the reasons why we need policemen, he replied, "To get rid of people like me." He also revealed plans to blow up a large building in Kansas City [and] made bizarre derogatory sexual comments towards women prior to visits with his mother. He had episodes of hyperventilation, and passed out by fainting or chest squeezing. . . . On one occasion in September of 1981, he put gasoline into a toilet and set fire to it, causing an explosion. Mr. Wilkins' brother was diagnosed to be suffering from schizophrenia when he was admitted along with Mr. Wilkins in 1982 at Crittenton Center. Mr. Wilkins was often noticed to be fantasizing about outer space and supernatural powers. In the fall of 1982, [the Crittenton psychiatrist] recommended placement on Mellaril because of a "disoriented thinking pattern and high anxiety." In 1983, his condition started deteriorating. . . . His final diagnoses in November of 1983, when he was discharged from Crittenton, were Borderline Personality and Passive-Aggressive Personality. Psychological testing at Crittenton indicated isolated episodes of paranoid functioning.

Id. at 57-61.

^ . See, e.g., Kastenbaum, Time and Death in Adolescence, in The Meaning of Death 99, 104 (H. Feifel ed. 1959). Among the conclusions Kastenbaum drew from his study were that

[t]he adolescent lives in an intense present; "now" is so real to him that both past and future seem pallid by comparison. Everything that is important and valuable in life lies either in the immediate life situation or in the rather close future.