Petitioners Brief — Roper v. Simmons

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Supreme Court. U.S }

FILED

No. 03-633

(CAPITAL CASE) APR 2 0 2004

OF THE CLERK

In the

SUPREME COURT OF THE UNITED STATES

DONALD P. ROPER,

Superintendent, Potosi Correctional Center,

Petitioner,

Vv.

CHRISTOPHER SIMMONS,

Respondent.

On Writ of Certiorari

to the Supreme Court of Missouri

BRIEF FOR PETITIONER

JEREMIAH W. (JAY) NIXON

Attorney General of Missouri

JAMES R. LAYTON

State Solicitor

STEPHEN D. HAWKE

Counsel of Record

EVAN J. BUCHHEIM

Assistant Attorneys General

P.O. Box 899

Jefferson City, MO 65102

Phone: (573) 751-3321

Fax: (573) 751-3825

Attorneys for Petitioner

—.

QUESTIONS PRESENTED FOR REVIEW

(Capital Case)

1. Once this Court holds that a particular punishment is

not “cruel and unusual,” and thus not barred by the Eighth and

Fourteenth Amendments, can a lower court reach a contrary

decision based on its own analysis of evolving standards?

2. Is the imposition of the death penalty on a person

who commits a murder at age seventeen “cruel and unusual,”

and thus barred by the Eighth and Fourteenth Amendments?

TABLE OF CONTENTS

Questions presented ........... ae i

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Constitutional and Statutory Provisions Involved ........ 2

Statement CF He Cass wo ccc cccccescceessaneeeeeeee 3

“Summary OC Ge AGRON ow. cc cccsseceseesueeeee 8

Argument

I. Lower courts should be bound by this Court’s Eighth

Amendment precedents, not set free to create a

patchwork of differing constitutional rules, reflecting

their own changing and subjective views of what

constitutes “cruel and unusual punishment.” ..... 11

Il. Principles of stare decisis argue against reversing the

holding in Stanford v. Kentucky. ............... 14

Ill. Reversing the Stanford v. Kentucky holding

could be justified only if there were a contrary national

consensus against capital punishment for killers who are

seventeen when they murder — and there is no such

GORSEREMB. 2.00 cccccsceesecseeuanne 15

A. Particular punishments are barred by the

Eighth Amendment only when there is a

national consensus that they are impermissible.

tei eiedceseetetcececess 15

B. Legislative activity since 1989 reflects the

public’s continued acceptance of capital

punishment as an available sanction for those

who murder at seventeen............... 19

1. Since Stanford, few states legislatures have

raised the age for capital punishment. .... 22

2. Meanwhile, other states have legislatively

confirmed sixteen as the minimum age, as

permitted by Stanford. ................ 24

3. Congress has maintained the availability of

capital punishment for those who commit crimes

DT, cGeeccescecceccececs 27

D. A new consensus contrary to Stanford is

unlikely, given that making capital punishment

E. Other evidence cited by the Missouri

Supreme Court is largely inapposite and entirely

insufficient to demonstrate a new and different

TABLE OF AUTHORITIES

Cases

Allen v. State, 636 So.2d 494 (Fla. 1994) .......... i4, 26

Atkins v. Virginia, 536 U.S. 304 (2002) . . . 15, 17, 19, 21, 24,

27, 29, 31, 36, 38

Coker v. Georgia, 433 U.S. 584 (1977) .......-. 18. 20, 21

Cooper v. Aaron, 358 U.S. 1 (1958) .............64.- 11

Crawford v. Washington, 124 S.Ct. 1354 (2004) ....... 15

Enmund v. Florida, 458 U.S. 782 (1982) .......... 20, 21

Ewing v. California, 538 U.S. 11 (2003) .............- 18

Fare v. Michael C., 442 U.S. 707 (1979) ............. 33

Ford v. Wainwright, 477 U.S. 399 (1986) ............. 32

Furman v. Georgia, 408 U.S. 238 (1972) ....... 17, 20, 38

Gore v. United States, 357 U.S. 386 (1958) ........... 20

Gregg v. Georgia, 428 U.S. 153 (1976) ...... 8, 15-20, 34

Hatter v. United States, 64 F.3d 647 (Fed. Cir. 1995) .... 11

In re Cameron T., 949 P.2d $45 (Ariz. Ct. App. 1997) ... 25

In re Stanford, 537 U.S. 968 (2002) .........00e.00.. 12

Jacobellis v. Ohio 378 U.S. 184 (1964) ............... 13

Khan v. State Oil Co., 93 F.3d 1358 (7" Cir. 1996) ...... 1]

Lockett v. Ohio, 438 U.S. 586 (1978) ..........0-- —

McCleskey v. Kemp, 481 U.S. 279 (1987) ........2-5:. 19

Miranda v. Arizona, 384 U.S. 436 (1966) .............. 5

Mullin v. Hain, 538 U.S. 957 (2003) ..........-.-.-+- 12

Patterson v. McLean Credit Union, 491

I, SR cnciccccccnucuctscatocsuunes 15

Patterson v. Texas, 536 U.S. 984 (2002) ............+- 12

Penry v. Lynaugh, 492 U.S. 302 (1989) ... 15, 17-19, 21, 29

Planned Parenthood v. Casey, 505 U.S.

PPPPPPPPrrrrriiririiirr Tite 14

Powell v. Texas, 392 U.S. 514 (1968) ........------45- 17

Rodriguez de Quijas v. Shearson/American

Express, Inc., 490 U.S. 477 (1989) ........-.+.- 11

Simmons v. Bowersox, 235 F.3d 1124 (8" Cir. 2001) ...... 7

Simmons v. Luebbers, 534 U.S. 924 (2001) ...........+.- 7

Simmons v. Missouri, 522 U.S. 953 (1997) ..........+.-. 6

Stanford v. Kentucky, 492 U.S. 361 (1989) .. 7-9, 11-17, 19-

24, 26-35, 37, 38, 40, 41, 43

State Oil Co. v. Khan, $22 U.S. 3 (1997) .........2+45- 11

Vii

State v. Davolt, 84 P.3d 456 (Ariz. 2004) ............. 26

State v. Furman, 858 P.2d 1092 (Wash. 1993) ......... 23

State v. Simmons, 944 S.W.2d 165 (Mo. banc 1997) ‘betes 6

Thompson v. Oklahoma, 487 U.S. 815 (1988) .... 17, 20, 22,

24, 29, 34, 36, 38

Tison v. Arizona, 481 U.S. 137 (1987) ............... 20

Trop v. Dulles, 356 U.S. 86 (1958) ............ 13, 15, 16

United States v. Hatter, 532 U.S. 557 (2001) .......... 11

United States v. Title Ins. & Trust Co.,

0 EROS yr en 14

Weems v. United States, 217 U.S. 349 (1910) .......... 16

1974 N.Y. Laws Ch. 367,§2.........0cccceeeeeeees 23

1981 Wash. Laws 535 (1981) .... 2.2.0... ccc eeeeee. 23

2000 Va. Acts Ch. 361 (H.B. 978)... 00.0... cece eee. 25

2004 S.D. Laws Ch. 166 (S.B. 182) ...............00. 22

_ 2004 Wyo. Sess. Laws Ch. 29(H.B.5) ............... 22

RIT re re 35

PE SERPOEEED océiccoccodcccencesususéees 6

Vill

Ariz. Const. art. 4, pt. 2, § 22(1) .. 0... eee ee ee eee 25

Ariz. Rev. Stat. § 13-501 (2004)... 2.2... ce eee eee eee 25

Arizona Constitution Article 6, § 15 ............62055. 25

Constitution of the United States, Amendment VIII ..... . . 2

Constitution of the United States, Amendment XIV, § 1 ...2

Florida Const. art. 1,§17 .......0..cceeecseueeeeees 26

Ind. Code Ann. § 35-50-2-3(b) (1)(A) (West Supp. 2003) fa

Kan. Stat. Ann. § 21-4622 (1990) ........0.....00000. 22

Kan. Stat. Ann. § 21-4622 (1995) ........0....000000. 22

Missouri Supreme Court Rule 29.15 ............00-.0. 6

Mo. Rev. Stat. § 565.020.2 (1994) ..........00eeceeee 25

Mo. Rev. Stat. § 565.020 (1994) ............ceeec eens 2

Mo. Rev. Stat. § 211.031.1 (2000) ...........00e000ees 6

Mo. Rev. Stat. § 302.060(2) (2000) .............0005. 34

Mo. Rev. Stat. § 311.325 (2000) ...........000eeeeeee 34

Mo. Rev. Stat. § 565.020.2 (1994) ..........00ccc0eee 14

Mont. Code Ann. § 45-5-102(2) (2003) ..........0005. 22

N.Y. Penal Law § 125.27(1)(b) (McKinney, 2004) ...... 23

N.Y. Penal Law § 60.06 (McKinney 2004) ............ 23

i ee ee 7

cS TTT 7

Ss GR, BR. WE ccc cccctvceccccceccccovescecses 1]

Va. Code Ann. § 18.2-10(a)(2003) ..........0060 ues 25

Wash. Rev. Code Ann. § 10.95.030(2) (West 2004) ..... 23

Mo. Rev. Stat. § 211.021(1), (2) (2000) ............... 6

Other Authoriti

Catherine A. Crosby, et al., The Juvenile Death

Penalty and the Eighth Amendment,

19 Law & Human Behavior 245 (1995) ........ 40

Curtis A. Bradley & Jack L. Goldsmith,

Treaties, Human Rights and Conditional

Consent, 149 U. Pa. L. Rev. 399 (2000) ........ 28

Joseph L. Hoffmann, On the Perils of Line

Drawing: Juveniles and the Death Penalty,

40 Hastings L.J. 229 (1989) ............2000ee

The President’s Coinmission on Law Enforcement

and Administration of Justice, Task Force

Report: Juvenile Delinquency and Youth

UU 504.60 uebeeecesedceus

The United Nations Convention on the Rights

of the Child: A Guide to the “Travaux

Preparatoires” 465 (Sharon Detrict, ed., 1992) ....

No. 03-633

(CAPITAL CASE)

In the

SUPREME COURT OF THE UNITED STATES

DONALD P. ROPER,

Superintendent, Potosi Correctional Center,

Petitioner,

Vv.

CHRISTOPHER SIMMONS,

Respondent.

On Writ of Certiorari

to the Supreme Court of Missouri

BRIEF FOR PETITIONER

OPINIONS BELOW

The August 26, 2003 decision of the Supreme Court of

Missouri is reported at 112 S.W.3d 397 (Mo. banc 2003) and is

published in the Joint Appendix (“App.”) at A-107.

JURISDICTION

The judgment of the Missouri Supreme Court was

entered on August 26, 2003. (App. at A-107, A-151). The

petition for writ of certiorari was filed on October 24, 2003, and

was granted on January 26, 2004. This court has jurisdiction

under 28 U.S.C. § 1257(a) (2000).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

_ Constitution of the United States, Amendment VIII:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.

Constitution of the United States, Amendment XIV, § 1:

[N]or shall any state deprive any person of life,

liberty or property without due process of law .

Mo. Rev. Stat. § 565.020 (1994):

1. A person commits the crime of

murder in the first degree if he knowingly

causes the death of another person after

deliberation upon the matter.

2. Murder in the first degree is a class A

felony, and the punishment shall be either death

or imprisonment for life without eligibility for

probation or parole, or release except by act of

the governor; except that, if a person has not

reached his sixteenth birthday at the time of the

commission of the crime, the punishment shall

be imprisonment for life without eligibility for

probation or parole, or release except by act of

the governor.

STATEMENT OF THE CASE

Respondent Christopher Simmons was convicted of a

murder he committed while seventeen years of age. After his

conviction was upheld, he sought a writ of habeas corpus from

the Supreme Court of Missouri. That court granted the writ and

resentenced Simmons to life imprisonment. In doing so, the

court relied on the Eighth Amendment to the United States

Constitution — despite contrary, binding precedent from this

Court.

rd The Murder

The Missouri Supreme Court described the murder of

Shirley Crook in its direct appeal opinion affirming Simmons’s

murder conviction and death sentence. (App. A-21 to A-25). In

summary, those facts are as follows:

In early September 1993, Simmons, then age seventeen

(now 28), discussed with his friends, Charlie Benjamin, fifteen,

and John Tessmer, sixteen, the possibility of committing a

burglary and murdering someone. On several occasions,

Simmons described his planned crime: find someone to

burglarize, tie the victim up, and ultimately push the victim off

a bridge. Simmons assured his friends that their status as

juveniles would allow them to “get away with it.”

On September 8, 1993, Simmons arranged to meet

Benjamin and Tessmer at around 2:00 a.m. to carry out

Simmons’s plan. The trio met at the home of Brian Moomey.

When Simmons and Benjamin left to commit the burglary,

Tessmer returned home.

Simmons and Benjamin found a window cracked open

at the rear of Shirley Crook’s home. They opened the window,

reached through, unlocked the back door, and entered the house.

Simmons turned on a hallway light; the light awakened Mrs.

Crook, who was home alone. She sat up in bed and asked,

“Who’s there?” Simmons entered her bedroom and recognized

Mrs. Crook as a woman with whom he had previously had an

automobile accident. Mrs. Crook apparently recognized

Simmons as well.

Simmons ordered Mrs. Crook out of bed and, when she

did not comply, Simmons forced her to the floor with

Benjamin’s help. While Benjamin guarded Mrs. Crook in the

bedroom, Simmons found a roll of duct tape, returned to the

bedroom, and bound her hands behind her back. The two also

taped shut Mrs. Crook’s eyes and mouth. They placed Mrs.

Crook in the back of her minivan. Simmons drove the van from

Mrs. Crook’s home in Jefferson County to Castlewood State

Park in St. Louis County.

Simmons parked the van near a railroad trestle that

spanned the Meramec River. When he and Benjamin began to

unload Mrs. Crook, they discovered that she had freed her

hands and had removed some of the duct tape from her face.

Using Mrs. Crook’s purse strap, the belt from her bathrobe, a

towel from the back of the minivan, and some electrical wire

found on the trestle, Simmons and Benjamin bound Mrs. Crook

again, restraining her hands and feet and covering her head with

a towel. Simmons and Benjamin walked Mrs. Crook to the

railroad trestle. There, Simmons bound her hands and feet

together, hog-tied fashion, with the electrical cable, and covered

her face completely with duct tape. Simmons then pushed her

off the railroad trestle into the river below. At the time she fell,

Mrs. Crook was alive and conscious. Simmons and Benjamin

threw Mrs. Crook’s purse into the woods and drove the van

back to the mobile home park across from the subdivision in

which Mrs. Crook lived.

Later that day, Simmons returned to Moomey’s home

and bragged that he had killed a woman “because the bitch seen

my face.” Meanwhile, Mrs. Crook’s husband Steven returned

home from an overnight trip and discovered that she had not

gone to work as scheduled. When he did not hear from her by

that evening, he filed a missing person’s report.

That same afternoon, two fishermen found Mrs. Crook’s

body floating in the Meramec River, three quarters of a mile

downstream from the railroad trestle. The fishermen notified

authorities, who removed the body. The medical examiner

identified the body, determined the cause of death as drowning,

and noted that the victim was alive before being pushed from

the bridge. The examiner also reported that Mrs. Crook had

sustained several fractured ribs and considerable bruising,

injuries that did not result from her fall from the railroad trestle.

The next day, September 10, police learned that

Simmons was involved in the murder. They arrested Simmons

and took him to the Fenton Police Department. Police read

Simmons the warnings required by Miranda v. Arizona, 384

U.S. 436 (1966). Simmons waived his constitutional right to

counsel and confessed to the murder. He also agreed to

videotape a confession and to take part in a videotaped

“reenactment” of the murder at the crime scene.

. 6

2. The Trial, Post-conviction Proceedings, Appeals, and

Federal Habeas

At trial,' the jury found Simmons guilty of first degree

murder and recommended a sentence of death. The jury found

three statutory aggravating circumstances in the murder of

Shirley Crook: (1) it was committed for the purpose of

receiving money or any other thing of value; (2) it was

committed for the purpose of avoiding, interfering with, or

preventing a lawful arrest of Simmons; and (3) it involved

depravity of mind, and as a result, the murder was outrageously

and wantonly vile, horrible, and inhuman. (App. A-18).

Following the jury’s recommendation, the trial court sentenced

Simmons to death.

Simmons filed a motion for post-conviction relief under

Missouri Supreme Court Rule 29.15. After an evidentiary

hearing, the circuit court denied the motion.

Simmons took a consolidated appeal to the Supreme

Court of Missouri. That court affirmed Simmons’s conviction -

and sentence and affirmed the denial of post-conviction relief.

State v. Simmons, 944 S.W.2d 165 (Mo. banc 1997). This

Court denied review. Simmons v. Missouri, 522 U.S. 953

(1997).

Simmons filed a petition for writ of habeas corpus under

28 U.S.C. § 2254 (2000) in the United States District Court for

the Eastern District of Missouri. That court denied the petition.

' The trial was not held in juvenile court because Simmons

was not a “juvenile” under Missouri law. (See App. A-109 n.2).

For a Missouri juvenile court to have jurisdiction, the offender

must be sixteen or younger at the time of the offense. Mo. Rev.

Stat. § 211.031.1 (2000) (jurisdiction of juvenile court),

§ 211.021(1), (2) (2000) (defining “adult” and “child”).

Simmons v. Bowersox , No. 4:97-CV-2415 JCH (E.D. Mo. Aug.

5, 1999). The United States Court of Appeals for the Eighth

Circuit affirmed the denial. Simmons v. Bowersox, 235 F.3d

1124 (8" Cir. 2001). This Court denied review. Simmons v.

Luebbers, 534 U.S. 924 (2001).

3. State Habeas

The present litigation began on May 3, 2002, when

Simmons filed a petition for writ of habeas corpus with the

Supreme Court of Missouri under that court’s Rules 91.01(b)

and 91.02(b). After receiving memoranda from Simmons and

the State, the court issued a writ of habeas corpus. The State

then filed a return.

On August 26, 2003, the court set aside Simmons’s

death sentence and resentenced him to life imprisonment

without eligibility for probation, parcle, or relief except by act

of the Governor. According to the Missouri court, Simmons’s

Eighth Amendment nghts were violated by his capital sentence

because he was seventeen when he murdered Mrs. Crook.

Wniting for the dissent, Judge Price found the issue controlled

om Court’s decision in Stanford v. Kentucky, 492 U.S. 361

SUMMARY OF THE ARGUMENT

The people in many states have chosen, through their

legislatures, to make capital nunishment available to

prosecutors and juies when the: find persons guilty of

committing heinous crimes at age seventeen. This Court

affirmed that choice in Stanford v. Kentucky, 492 U.S. 361

(1989). Even without the existence of Stanford, respondent

Simmons would bear the “heavy burden [that] rests on those

who would attack the judgment of the representatives of the

people.” Gregg v. Georgia, 428 U.S. 153, 175 (1976). Because

of Stanford, Simmons bears the additional burden of justifying

abandonment of the principle of stare decisis.

But the most important question here goes to the impact

this Court’s precedents have on lower courts. The Supreme

Court of Missouri assumed authority to effectively overrule this

Court’s interpretation of the Constitution in Stanford in favor of

its own. That is wrong. Even though Simmons’s argument

invoked the Eighth Amendment, with its evolving standards, it

is for this Court, and not lower courts, to declare whether a

particular punishment — here, capital sentences for those who

commit heinous murders while seventeen years old — has

become “cruel and unusual” and is thus newly barred by the

Eighth Amendment. The Missouri court’s action trivialized this

Court’s power and the command of its precedent.

Moreover, the Court should not abandon Stanford.

States, prosecutors, and juries have relied on that precedent for

the last fifteen years. The Missouri court did not find that any

of the traditional bases for departing from stare decisis existed.

Instead, it concluded that societal standards have evolved to the

point that Stanford is no longer good law. That conclusion is

incorrect.

This Court has consistently and appropriately refused to

declare a particular punishment “cruel and unusual” unless and

until there is a national consensus to that effect. To determine

whether there is a consensus, the Court looks at the objective

record in two areas: legislative action and jury verdicts.

In Stanford, the Court concluded that legislative acts did

not demonstrate a consensus against capital punishment for

those who commit crimes at age sixteen. Since Stanford, a few

state legislatures have raised the minimum age from sixteen to

eighteen. But most have retained the age limit affirmed in

Missoun court found otherwise, but to do so it had to include in

its total one state where a court, not the legislature, raised the

age, and two states that did not change the age at all, but merely

rejoined the capital punishment states without modifying age

distinctions they had previously made in non-capital sentencing.

Meanwhile, other states reaffirmed, legislatively, the sixteen-

year-old age limit. And voters in other States that had placed

the line at eighteen chose to make capital punishment available

to younger criminals. Meanwhile, the United States Senate,

working with the president, preserved the ability of the States

to make those choices. Those legislative acts confirm that the

consensus the Court looked for in Stanford still does not exist.

Jury verdicts confirm that result. Capital sentences and

executions of those who commit crimes before age eighteen are

more common today than they were when the Court decided

Stanford. |

Although this Court has focused on the objective

evidence of consensus in those two areas, it has also addressed

other considerations. But these, too, show no appreciable

interests today just as it did in 1989. Polling data leads to the

juveniles in the abstract, but they support it when faced with

specific cases. Some self-appointed expert groups opine that

the practice should be barred, but they do not speak with the

authority of a legislature and their opinions do not establish a

national consensus. And though foreign countries that have

capital punishment may have chosen a higher minimum age, the

question here is whether there is an American consensus that a

particular age is mandated by the United States Constitution.

If there is an American consensus today, it is a

consensus that the States should be allowed to preserve capital

punishment for use in the extraordinary case where a seventeen-

year-old commits a particularly heinous crime.

ARGUMENT

Lower courts should be bound by this Court’s

Eighth Amendment precedents, not set free to create a

patchwork of differing constitutional rules, reflecting their

own changing and subjective views of what constitutes

“cruel and unusual punishment.”

Decisions of this Court interpreting the Constitution are,

of course, the supreme law of the land. U.S. Const. Art. VI;

Cooper v. Aaron, 358 U.S. 1, 18 (1958). In 1989, this Court

held that the Eighth Amendment did not preclude the death

penalty for individuals who murder at sixteen or seventeen

years of age. Stanford v. Kentucky, 492 U.S. 361 (1989).

Whether that holding is still the law of the land is a decision for

this Court to make, not a decision for an inferior state or federal

court. “[I)}t is this Court’s prerogative alone to overrule one of

its precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997).

That is true even if “‘changes in judicial doctrine’ ha[ve]

significantly undermined” this Court’s prior holding, United

States v. Hatter, 532 U.S. 557, 567 (2001) (quoting Hatter v.

United States, 64 F.3d 647, 650 (Fed. Cir. 1995)); even if this

Court’s 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);

and even if this Court’s holding rests on “‘increasingly wobbly,

moth-eaten foundations,”” State Oil Co. v. Khan, 522 U.S. at 20

(quoting Khan v. State Oil Co., 93 F.3d 1358, 1363 (7® Cir.

1996)).

In startling contrast to these principles, here the

Supreme Court of Missouri recognized this Court’s precedent,

but declined to follow it. The Missouri court acknowledged

this Court’s holding: that the Eighth Amendment does not

prohibit the execution of sixteen- and seventeen-year-old

individuals who murder . (App. A-107, citing Stanford, 492

U.S. at 361 (1989); it nevertheless developed and applied the

opposite rule: that the Eighth Amendment prohibits the

execution of sixteen- and seventeen-year-old murderers. (App.

A-109). The Supreme Court of Missouri reached this holding

even though this Court declined to overturn Stanford three

times within the year before the Missouri court ruled. See

Mullin v. Hain, 538 U.S. 957 (2003) (Mem. Order) (order

granting application to vacate stay of execution of defendant

who was seventeen when he committed murder); /n re Stanford,

537 U.S. 968 (2002) (denying writ of habeas corpus of

petitioner who was seventeen when he committed murder);

Patterson v. Texas, 536 U.S. 984 (2002) (same).

The Supreme Court of Missouri rationalized its action

by suggesting that the question of whether the Eighth

Amendment prohibits the execution of those who murder just

before turning eighteen has become, since 1989, an undecided

question. (App. A-121). The Missouri court concluded that

~while the issue had been decided in Stanford, it is undecided

today because the Eighth Amendment should be interpreted “in

a flexible and dynamic manner.” (App. A-121, quoting

Stanford, 492 U.S. at 369).

This analysis by a lower court belittles this Court’s role

as the Nation’s highest court. This Court has never suggested

that the precedential value of its Eighth Amendment decisions

is less than that of its decisions in other areas. That the Eighth

Amendment should be interpreted “in a flexible and dynamic

manner” does not license lower courts to interpret that

amendment contrary to what they would concede in every other

context to be binding precedent from this Court.

Allowing lower courts to reinterpret the Eighth

Amendment contrary to this Court’s holdings would leave them

free to create their own definitions of “cruel and unusual

punishment.” There is little likelihood that those courts would

reach unanimity on the most serious questions regarding Eighth

Amendment protection. That lack of consensus would force

this Court to review Eighth Amendment issues even more

frequently. But such reexamination would, in turn, have little

effect, for the lower courts would have license to again deviate

from those renewed precedents.

Such deviations from a national norm are

distinguishable, of course, from states creating additional rights

for offenders through the legislative process or through their

state constitutions. A state court may, without implicating the

federal constitution, interpret the statutes, constitution, or

common law of its state in a manner that creates additional

rights for the offender. But a state court should not be free to

decide a federal constitutional issue contrary to precedent from

this Court. “It is, after all, a national Constitution [this Court is]

expounding.” Jacobellis v. Ohio 378 U.S. 184, 195 (1964). A

“national Constitution” requires national rules. ,

The Supreme Court of Missouri did not merely suggest

that it was free to reinterpret the national constitution; it

concluded that it was obligated to do so — i.e., that it was

required to reconsider the Eighth Amendment issue decided in

Stanford on the basis of any “evolving national consensus” it

might find in 2003. (App. A-122). The evolving-standard-of-

decency principle is, of course, the one this Court has long used

in resolving Eighth Amendment issues. See, e.g, Trop v.

Dulles, 356 U.S. 86, 100-01 (1958) (plurality opinion). And it

is an appropriate standard for a lower court to use when this

Court has not decided an Eighth Amendment issue. But when

this Court has determined that a punishment does or does not

violate the Cruel and Unusual Punishment Clause, a lower court

should not be free to reanalyze and redecide the issue merely

because there is some evidence that the standard has evolved.

Instead, the lower court should apply the controlling precedent -

and leave it to this Court to decide when the standard has

changed. Ifa state court wants to protect a young defendant by

extending protections this Court has refused, it should do so on

state, not federal, constitutional grounds. See, e.g., Allen v.

- State, 636 So.2d 494 (Fla. 1994); see infra p. 26.

Il.

Principles of stare decisis argue against reversing the

holding in Stanford v. Kentucky.

Principles of stare decisis create a general obligation to

follow prior precedent - in this case, an obligation to follow

Stanford v. Kentucky. The bright line in Stanford has proved

workable since 1989. Stare decisis generally requires that such

workable lines be retained. See Planned Parenthood v. Casey,

505 U.S. 833, 845, 854 (1992). None of the traditional factors

that this Court examines in determining whether to overrule a

prior decision (see id. at 854-59) weighs in favor of overruling

Stanford.

The decision in Stanford led to the kind of reliance that

argues against overruling it. See, e.g., United States v. Title Ins.

& Trust Co., 265 U.S. 472, 486 (1924). Most notably, state

legislatures have relied on this Court’s holding in Stanford

when enacting or considering criminal laws. For example, the

Missouri legislature relied on Stanford when it amended its first

degree murder statute in 1990 to prohibit capital punishment

for those who murder before their sixteenth birthday. See Mo.

Rev. Stat. § 565.020.2 (1994). And presidents and the U.S.

Senate have relied on Stanford when addressing international

treaty issues. See infra at 27-28.

This is not an instance in which a legal rule has changed

or been found to rest on an erroneous premise, so as to undercut

the foundation for a prior holding. The principles on which

Stanford is based are not the remnant of some abandoned

doctrine. Patterson v. McLean Credit Union, 491 U.S. 164,

173-74 (1989). Stanford was based on principles articulated by

this Court in Trop v. Dulles and Gregg v. Georgia, 428 U.S.

153, 171 (1976) (opinion of Stewart, Powell, and Stevens, JJ.).

See Stanford, 492 U.S. at 369. No decision from this Court (or,

for that matter, a lower court) has described Stanford as a

deviation from the line of Eighth Amendment cases that began

with Trop. Nor has the Court departed from the Stanford

iteration of the Trop rule. Indeed, to the contrary, the Court

cited Stanford with approval in Atkins v. Virginia, 536 U.S.

304, 315 n.18 (2002). Legislatures should be allowed to

proceed as Stanford permits.

Reversing the Stanford v. Kentucky holding could be

justified only if there were a contrary national consensus

against capital punishment for killers who are seventeen

when they murder — and there is no such consensus.

AL Particular punishments are barred by the

Eighth Amendment only when there is a

national consensus that they are

impermissible.

Though the Eighth Amendment bars “cruel and unusual

punishments,” it does not identify, nor provide criteria for

identifying, such punishments. Certainly the list includes those

punishments considered cruel and unusual when the Bill of

Rights was adopted. Stanford, 492 U.S. at 368; Penry v.

Lynaugh, 492 U.S. 302, 330 (1989). See also Crawford v.

Washington, 124 S.Ct. 1354, 1373-74 (2004) (scope of Sixth

Amendment’s Confrontation Clause’s protection to accused

defined by Framers’ intent). But capital punishment for one

who murdered at age seventeen was not considered cruel and

unusual at that time. Stanford, 492 U.S. at 368.

This Court has repeatedly held, of course, that the list of

banned punishments was not fixed in 1789. Rather, it changes

as societal views evolve:

[T]he [Eighth] Amendment has been interpreted

in a flexible and dynamic manner. The Court

early recognized that “a principle to be vital,

must be capable of wider application than the

mischief which gave it birth.” Thus the Clause

forbidding “cruel and unusual” punishments “is

not fastened to the obsolete but may acquire

meaning as public opinion becomes enlightened

by a humane justice.”

Gregg v. Georgia, 428 U.S. at 171 (citation omitted) (quoting

Weems v. United States, 217 U.S. 349,373, 378 (1910)). The

Eighth Amendment draws its meaning “from the evolving

standards of decency that mark the progress of a maturing

society.” Gregg, 428 U.S. at 173 (quoting Trop v. Dulles, 356

U.S. at 101).

Determining the “standard of decency” requires an

assessment of contemporary values about the infliction of the

sanction. Gregg, 428 U.S. at 173. Necessarily, however, the

Court has articulated a standard that this assessment must reach.

It is not enough to find some who say that a particular

punishment is “cruel and unusual.” Nor has it ever been

enough that many, or perhaps even most, hold that value. Nor

has the Court, in the Eighth Amendment context, been willing

to rely on research or data purportedly validating those views.

Rather, this Court’s modern Eighth Amendment

opinions have consistently searched for a “national consensus.”

See Atkins v. Virginia, 536 U.S. at 317; Stanford, 492 U.S. at

381 (O’Connor, J. concurring); Penry v. Lynaugh, 492 U.S. at

334 (1989). Were it to demand anything short of a “national

consensus,” this Court would itself be declaring something to

be a “cruel and unusual punishment,” rather than deciding

whether a particular punishment has achieved that status.

Demanding a consensus is particularly important

because the Eighth Amendment may be a one-way ratchet —i.e.,

once a punishment reaches the “cruel and unusual” list, it may

never come off, no matter how society’s view of it may change.

As this Court observed in Gregg v. Georgia:

A decision that a given punishment is

impermissible under the Eighth Amendment

cannot be reversed short of a constitutional

amendment. The ability of the people to express

their preference through the normal democratic

processes, as well as through ballot referenda, is

shut off. Revisions cannot be made in the light

of further experience.

428 U.S. at 176; see also Thompson v. Oklahoma, 487 U.S.

815, 855 (1988) (O’Connor, J., concurring in judgment)

(observing that if the Court in 1972 would have held that a

national consensus existed to outlaw capital punishment, then

this “mistaken premise . . . would have been frozen into

constitutional law”). If that is true, the Court must not allow the

personal preferences of its current Members guide its decision

(although that temptation is great; see Furman v. Georgia, 408

U.S. 238, 411 (1972) (Blackmun, J., dissenting)). The Court

should not itself become “the ultimate arbiter of the standards

of criminal responsibility. .. throughout the country.” Gregg

v. Georgia, 428 U.S. at 175-76 (quoting Powell v. Texas, 392

U.S. 514, 533 (1968) (plurality opinion)); see also Thompson v.

Oklahoma, 487 U.S. at 854 (O’Connor, J., concurring in

judgment) (“I would not substitute our inevitably subjective

judgment about the best age at which to draw a line in the

capital punishment context for the judgments of the Nation’s

legislatures.”’).

To avoid becoming the “ultimate arbiter,” making things

“cruel and unusual” by judicial fiat, the Court must adopt and

apply rules that accommodate legislative movement in more

than one direction. Societal views of law enforcement

standards do change, as reflected in legislation. As discussed

below, infra at p. 22-27, states have moved both directions in

determining the minimum age for particular punishments. They

have made similar moves with regard to other punishment

issues.

For example, the kind of punishment upheld in Ewing

v. California, 538 U.S. 11 (2003), is stricter — perhaps far

stricter — than its predecessor. See id. at 43 (Breyer, J.,

dissenting) (“between the end of World War II and 1994 (when

California enacted the three strikes law), no one like Ewing

could have served more than /0 years in prison.” (emphasis in

original) (internal reference omitted)). Had the Court ruled

before 1994 that a lengthy sentence was “cruel and unusual”

merely because it was uncommon (or even unheard of),

California would have been constitutionally barred from

adopting what this Court so recently upheld.

Whether society’s views have become so settled and

uniform that there is a new “national consensus” that bars,

perhaps forever, a particular punishment is not judged

according to anyone’s subjective views. Rather, courts must

“look to objective indicia that reflect the public attitude toward

a given sanction.” Gregg, 428 U.S. at 173 (plurality opinion);

see also Penry, 492 U.S. at 331 (“In discerning those ‘evolving

standards,’ we have looked to objective evidence of how our

society views a particular punishment today.”); Coker v.

- _ a

Georgia, 433 U.S. 584, 592 (1977) (plurality opinion) (“Eighth

Amendment judgments . . . should be informed by objective

factors to the maximum possible extent.”). This Court has

focused on two areas for such indicia: legislative acts and jury

verdicts. See, e.g., Stanford, 492 U.S. at 373; Penry, 492 U.S.

at 331; Atkins, 536 U.S. at 312. The current data in those areas

demonstrates no significant change since Stanford. There is

still not “national consensus” — of the sort this Court has

demanded — that it is “cruel and unusual” to impose capital

punishment on any person who acts at age seventeen, no matter

how heinous the crime.

B. Legislative activity since 1989 reflects the public’s

continued acceptance of capital punishment as an available

sanction for those who murder at seventeen.

The Court has always mandated deference to legislative

acts, even in the Eighth Amendment context. See Stanford, 492

U.S. at 369-70. Consistent with its own jurisprudence, this

Court, in reviewing the decision below, should presume the

validity of Missouri’s law. Mo. Rev. Stat. § 565.020.2 (1994)

(prohibiting capital punishment for those under sixteen). “And

a heavy burden rests on those who would attack the judgment

of the representatives of the people.” Gregg, 428 U.S. at 175;

see also Stanford, 492 U.S. at 373.

. But in the Eighth Amendment context, turning first to

legislative acts is not merely a matter of deferring to the will of

the popularly elected branch. In the cacophony of personal

opinions, the legislative voice is the only official expression of

the people’s will. It is the one voice we deem to be truly

representative and collective. As this Court has noted, “the

legislation enacted by the country’s legislatures” is the “clearest

and most reliable objective evidence of how our society views

a particular punishment today.” Penry, 492 U.S. at 331; see

also, e.g., McCleskey v. Kemp, 481 U.S. 279, 300 (1987).

Thus, the Court explained in Gregg:

“{I]n a democratic society, legislatures, not

courts, are constituted to respond to the will and

consequently the moral values of the people.”

The deference we owe to the decisions of the

state legislatures under our federal system . . . is

enhanced where the specification of

punishments is concerned, for “these are

peculiarly questions of legislative policy.”

428 U.S. at 175-76 (citations omitted) (quoting Furman, 408

U.S. at 383 (Burger, C.J., dissenting)); Gore v. United States,

357 U.S. 386, 393 (1958). Consistent with Gregg, this Court

has repeatedly said that it must listen, first and foremost, to the

legislative voice when looking for a national consensus. See,

e.g., Enmund vy. Florida, 458 U.S. 782, 789-93 (1982); Tison v.

Arizona, 481 U.S. 137, 152-53 (1987); Thompson v. Oklahoma,

487 U.S. at 826-30; Stanford, 492 U.S. at 370.

If the Court is going to reconsider its Stanford holding,

the first objective question, then, must be whether the Nation’s

legislatures have spoken in a way that is inconsistent with

Stanford, i.e., whether they have, since 1989, reached a

consensus that any execution of a person who committed his

crime before age 18 is “cruel and unusual.”

The Court has posed parallel questions a number of

times. For example, in Coker v. Georgia, the Court considered

the States’ statutory position with regard to capital punishment

for rape. Of the thirty-five states that had at that point reenacted

a post-Furman capital punishment scheme, only three had

extended that scheme to cover rape of an adult woman. 433

U.S. at 594. Two of those had dropped that extension by the

time the Court decided Coker, making Georgia the “sole

jurisdiction in the United States . . . that authorize[d] a sentence

of death when the rape victim is an adult woman.” /d. at 595-

96.

Similarly, in Enmund v. Florida, the Court considered

the legislative record as to capital punishment for felony

murder. 458 U.S. at 789-93. Only eight states authorized

capital punishment in a situation where the defendant did not

kill, attempt to kill, or intend to kill. Jd. at 792. And none of

the states that had enacted new capital punishment statutes since

1978 had authorized that penalty for “a defendant who

somehow participated in a robbery where a murder occurred.”

Id.

Even in Atkins, the Court followed this path, noting first

that there was no record of “any state legislative consideration

of the suitability of imposing the death penalty on mentally

retarded offenders prior to 1986.” 536 U.S. at 313. The Court

then identified 19 state legislatures that had barred such

executions since 1986 — and pointed out that none had gone the

other direction. /d. at 314-17.

The Missouri Supreme Court claimed to be stepping in

this Court’s Atkins footprints. But in reality, it took a different

route, for the kind of legislative record that was critical in

Coker, Enmund, and Atkins was not available here. Rather, the

record since Stanford is mixed.

In Stanford, this Court identified twelve states, out of

thirty-seven that had capital punishment, that expressly

excluded that penalty as an option for the seventeen-year-old

offender. 492 U.S. at 370, 370 n.2. See also Atkins, 536 U.S.

at 315 n. 18 (contrasting the post-Penry legislative record with

regard to the mentally retarded and the post-Stanford record

regarding “the threshold age for imposition of the death

penalty.”). Today, the situation is not appreciably different.

We do not yet have a pattern of lawmaking sufficient to

establish a national consensus that capital punishment is “cruel

and unusual” when imposed on anyone “so much as one day

under” eighteen. See Thompson, 487 U.S. at 859 (Scalia, J.,

dissenting).

l. Since Stanford, few states legislatures have

raised the age for capital punishment.

In holding that such a consensus now exists, the

Supreme Court of Missouri concluded that five states had

joined the Stanford list of twelve that barred capital punishment

entirely when the defendant was under age eighteen at the time

of the crime. In fact, only two legislatures had decided to raise

the age for eligibility: Indiana and Montana. Ind. Code Ann. §

35-50-2-3(b) (1 (A) (West Supp. 2003); Mont. Code Ann. § 45-

5-102(2) (2003). Two legislatures have more recently done so:

South Dakota and Wyoming (2004 S.D. Laws Ch. 166 (S.B.

182); 2004 Wyo. Sess. Laws Ch. 29 (H.B. 5)). The legislatures

in the other states listed by the Missouri court - Kansas, New

York, and Washington — have not changed the age limit.

When this Court decided Stanford, Kansas was among

the states that did not have capital punishment as a sentencing

option. See Thompson v. Oklahoma, 487 U.S. at 826 n.25.

When Kansas adopted its new capital punishment statute, the

legislature did not deal specifically with offenders under

eighteen; it merely carried over a distinction in its existing

sentencing law. Previously, the maximum Kansas prison

sentence was 40 years without parole, and Kansas exempted

offenders under eighteen from that prison term. Kan. Stat. Ann.

§ 21-4622 (1990). When Kansas made capital punishment an

alternative to the 40-year sentence, it did not modify the

juvenile exception. Kan. Stat. Ann. § 21-4622 (1995). There

was not a legislative vote in favor of any particular age.

New York, too, rejoined the capital punishment states

after Stanford. N.Y. Penal Law § 60.06 (McKinney 2004).

And like Kansas, New York did not deal specifically with

under-eighteen offenders. The maximum prior sentence was

life imprisonment without parole. New York, like Kansas, had

exempted offenders under eighteen from these prison ierms.

And New York, too, carried that over into its capital

punishment law — though indirectly. New Y ork’s age limitation

is not found in its sentencing law, but in the law defining the

crime itself; since 1974, an element of first degree murder in

New York has been that the offender be more than eighteen

years old. See N.Y. Penal Law § 125.27(1)(b) (McKinney,

2004); 1974 N.Y. Laws Ch. 367, § 2. In New York, a murderer

under eighteen could not be convicted of first degree murder

- either before or after Stanford.

Neither Kansas nor New York raised its age for

conviction and sentence for first degree murder since Stanford.

Again, all they did was add capital punishment to existing

sentencing regime. That is not a solid suggestion that the

people of those states have recently concluded that capital

punishment cannot be available for any person who commits a

crime at age seventeen.

Washington provides even less support for the Missouri

court’s claimed new legislative consensus. The change that the

Missouri court cites was not a legislative one at all. When the

Washington legislature enacted its current death penalty statute

in 1981, the legislature included no minimum age for death

eligibility. 1981 Wash. Laws 535 (1981) (codified at Wash.

Rev. Code Ann. § 10.95.030(2) (West 2004)). Stanford did not

prompt a legislative change. Rather, the Supreme Court of

Washington held the statute to be “unconstitutional as applied

to defendants fifteen years or younger if interpreted to authorize

imposition of the death penalty following decline of jurisdiction

in juvenile court.” State v. Furman, 858 P.2d 1092, 1103

(Wash. 1993). The state statutory scheme as written allowed a

person under sixteen to be tried as an adult and potentially

sentenced to death. The Washington court concluded that it

must declare unconstitutional a death sentence for any juvenile

— even one who was seventeen at the time of his offense. /d.

at 1096, 1103 (offense occurred two months before defendant's

eighteenth birthday). Thus the threshold age for execution in

Washington is now eighteen. But again the change was not the

result of legislative action.

In sum, then, the Missouri court should not have

suggested that Kansas, New York, or Washington raised the

minimum age for capital punishment. In fact, nearly all of the

states whose positions were important in Stanford still stand in

the same place.

2. Meanwhile, other states have legislatively

confirmed sixteen as the minimum age, as

permitted by Stanford.

In Atkins, the Court looked not only to the current

position of the states, but also to the pace and direction of

change. Critical to the Atkins holding was “the consistency of

the direction” in legislative acts. 536 U.S. at 315. Here, the

movement is not in a consistent direction; instead of raising the

age for capital punishment eligibility, various states have

confirmed positions that were once merely implicit, or have

even moved the other way. Indeed, the record today is not

appreciably different from the record in 1989, when Justice

O’Connor noted the phenomenon of states setting sixteen as the

minimum age for capital punishment. Stanford v. Kentucky,

492 U.S. at 381 (O’Connor, J., concurring).

Since this Court’s 1986 decision in Thompson v.

Oklahoma, some state legislatures have set sixteen as their

minimum age for the imposition of capital punishment. As

noted above, supra at pp. 14, 19, in 1990, the Missouri

legislature established sixteen as its minimum age. See Mo.

Rev. Stat. § 565.020.2 (1994). And in Virginia, the General

Assembly amended its law in 2000 to expressly allow capital

punishment for offenders who were sixteen years or older at the

time of the offense. See Va. Code Ann. § 18.2-10(a)(2003);

2000 Va. Acts Ch. 361 (H.B. 978).

In Arizona, the people, acting as the legislature by

initiative, made a parallel change, exposing more sixteen- and

seventeen-year-old offenders to the possibility of capital

punishment. On November 5, 1996, Arizona voters passed

Ballot Proposition 102, the Juvenile Justice Initiative. It

repealed former Arizona Constitution Article 6, § 15, which

gave superior courts the authority to transfer a juvenile for

prosecution. Under the new amendment, juveniles fifteen years

of age or older who are accused of murder and other violent

felony offenses would be prosecuted as adults. See Ariz. Const.

art. 4, pt. 2, § 22(1). The voters’ purpose in adopting the

constitutional amendments was to speed the pace and to

augment the effectiveness of the juvenile justice system in

Arizona and to respond more stringently to juvenile crime when

appropriate. Jn re Cameron T., 949 P.2d 545, 550 (Ariz. Ct.

App. 1997). Eliminating the discretionary step of the juvenile

justice system and vesting mandatory criminal prosecution

jurisdiction in the criminal trial court would have the effect of

exposing more juvenile offenders to the possibility of capital

punishment. That is, the amendment would divest the juvenile

courts — which cannot impose capital punishment — of

jurisdiction over certain juvenile offenders, including those

charged with murder. See also Ariz. Rev. Stat. § 13-501 (2004)

(“the county attorney shall 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 in violation of § 13-1105.”). The

amendment is the clearest expression of the people’s voice.

Later, the Arizona Supreme Court rejected the

amendment, but on grounds that cast no doubt on the people’s

meaning. The court held that the new procedures were

insufficient to allow individualized consideration of the

appropriate sentence, required by this Court in Lockett v. Ohio,

438 U.S. 586, 605 (1978) (plurality opinion). See State v.

Davolt, 84 P.3d 456, 479-81 (Ariz. 2004). That judicial ruling,

however, does not erase, for purposes of considering whether

there is a new consensus, the legislative voice endorsing the

availability of capital punishment for sixteen- and seventeen-

year-old murderers.

In Florida, the process leading to a similar endorsement

was prompted by judicial action. In Allen v. State, 636 So.2d

494 (Fla. 1994), the Florida Supreme Court concluded that a

Flonda statute allowing the death penalty for a fifteen year old

violated Article I, § 17 of the Florida Constitution. Jd. at 497.

Section 17, as it then read, prohibited imposition of “cruel or

unusual” punishment (emphasis added). That decision

prompted a response by the people, in their legislative role.

In November 2002, Florida voters overwhelmingly

approved a state constitutional amendment that changed the

State constitutional standard from “cruel or unusual” to “cruel

and unusual,” mirroring the Eighth Amendment standard in the

federal constitution. Florida Const. art. I, § 17 (as amended

2002); elections results available at http://election.dos.state.

fl.us/elections/resultsarchive/Index.asp? ElectionDate=1 1/5/0

2&DATAMODE-. It was adopted when Stanford defined the

scope of the Eighth Amendment with regard to capital

punishment for those under eighteen. Thus the legislative

decree in Florida effectively lowered the age of eligibility, to

the level approved in Stanford.

That movement — especially when combined with states

that affirmed, post-Sitanford, the sixteen-year-old line —

demonstrates that here, unlike in Atkins, there is not a

“consistency of direction” suggesting that we have reached a

new “national consensus.”

3. Congress has maintained the availabiiity of

capital punishment for those who commit crimes

at age seventeen.

State legislatures are not, of course, the only legislative

voice. The people also speak through their elected members in

Congress. And since Stanford, the United States Senate, in

cooperation with the President, has expressly preserved the

States’ ability to apply their own capital punishment laws to

those who commit heinous crimes before turning eighteen.

For example, when the Senate ratified the International

Covenant on Civil and Political Rights (ICCPR) in 1992, it did

so with a series of reservations, understandings, and

declarations. These included specific reservation of the right

_ to impose capital punishment on youthful offenders:

[T]he United States reserves the right, subject to

its Constitutional constraints, 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 punishments

for crimes committed by persons below eighteen

years Of age.

U.S. Senate Resolution of Advice and Consent to Ratification

of the International Covenant on Civil and Political Rights, 138

Cong. Rec. 8070 (April 2, 1992). The reservations,

understandings, and declarations were proposed by the

President, adopted by the Senate as a condition of its advice and

consent to the ICCPR, and included with the United States

Instrument of Ratification deposited with the United Nations.

See Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human

Rights and Conditional Consent, 149 U. Pa. L. Rev. 399, 404

(2000) (hereinafter “Bradley”).’

Contemporaneous with Stanford, the United States was

negotiating the text of the proposed United Nations Convention

on the Rights of the Child. During these negotiations, the

United States delegation objected to a proposed ban on juvenile

executions, but did not insist on deletion of that provision

“provided it was understood that the United States maintained

its right to make a reservation on this point.” The United

Nations Convention on the Rights of the Child: A Guide to the

“Travaux Preparatoires” 465 (Sharon Detrict, ed., 1992).

President Clinton signed the Convention in 1995, but stated

that he would ask the Senate to attach “‘a number of reservations

and understandings” to “ protect the rights of various states

under the nation’s federal system of government and maintain

the country’s ability to use existing tools of the criminal justice

system in appropriate cases.” Press Release, White House Press

Office, Statement on US Decision to Sign UN Convention on

the Rights of the Child (Feb. 10, 1995). The Senate has not

ratified the Convention Curtis A. Bradley, The Juvenile Death

Penalty and International Law, 52 Duke L.J. 485, 512 (2002),

and thus has declined to endorse the capital punishment ban that

the Convention contains.

? A final draft of ICCPR had been completed in 1966 and

the treaty took effect in 1976, all without formal United States

involvement. The United States had signed the ICCPR in 1977,

but President Jimmy Carter quickly followed this signature with

proposed conditions on the United States ratification, including a

condition declining to agree to the juvenile death penalty

provision. Message from the President of the United States

Transmitting For Treaties Pertaining to Human Rights, S.Exec.

Docs. C, D, E, and F, 95-2, at ITI-IV (1978).

* * *

Of course, it is not Missouri’s burden to show a national

consensus in favor of capital punishment for those who murder

at seventeen. See Stanford, 492 U.S. at 373. But the foregoing

amply demonstrates a different national consensus: one that

preserves the ability of individual state legislatures to make that

penalty available for the most heinous and dangerous crimes,

even when committed by those who have not quite reached

eighteen. That consensus is entirely inconsistent with the

holding of the Supreme Court of Missouri.

C. Jurors continue to impose capital punishment contrary

to the alleged consensus.

The second objective factor “the Court has examined in

determining the acceptability of capital punishment to the

American sensibility is the behavior of juries.” Thompson v.

Oklahoma, 487 U.S. at 831 (plurality opinion of Stevens, J.).

Thus, in determining that there was not a national consensus

against capital punishment of those offenders who were sixteen

at the time of the murder, this Court looked at the rate of

sentencing of those offenders. Stanford, 492 U.S. at 373-75.

Similarly, in Atkins, the court looked at “[tJhe practice” of

Imposing capital punishment on the mentally retarded. Atkins,

536 U.S. at 316. Noting the change in jury verdicts since

Penry, in the Atkins Court determined that such verdicts pointed

toward a consensus further limiting capital punishment for the

mentally retarded. Jd. But comparing current data with that

considered in Stanford points the opposite direction here.’

> Petitioner does not mean to suggest, by reference to the

kind of data considered in Stanford, Penry, and Atkins, that such |

data tells us much about societal views about punishment, rather

than about patterns of criminal activity. Perhaps such views could

be accurately ascertained by comparing jury verdicts for

comparable crimes committed by persons at various ages. But we

In Stanford, the Court looked first at the ages at which

those who received capital sentences had committed their

crimes. The Court noted that between 1982 and 1988, fifteen

of the 2,106 death sentences were imposed on individuals who

were sixteen years of age or younger. Stanford, 492 U.S. at

373. During that same time period thirty death sentences were

imposed on those who were seventeen at the time of the crime.

Id. These death sentences, 45 out of 2,106, represented 2.1% of

the total sentences. /d.

Two people who were fifteen, 32 who were sixteen, and

89 people who were seventeen received capital sentences

between 1990 and 2003. Victor Streib, The Juvenile Death

Penalty Today: Death Sentences and Executions for Juvenile

Crimes, January 1, 1973 - March 15, 2004 at page 9 (Table 4)

(March 15, 2004) (available on-line at

http://www.law.onu.edw/faculty/streib/JuvDeathMar152004.p

df) (hereinafter “Streib”).* Those aged fifteen, sixteen, and

seventeen at the time they killed totaled 123 out of the total 359

death sentences for this period. /d. That is significantly more

proportionately, than the 2.1% noted by the court in Stanford.

This sentencing data points away from the consensus that the

Supreme Court of Missouri purported to find.

In Stanford, the Court looked not only at sentencing, but

at actual executions. The Court noted the actual executions for

crimes committed under age eighteen accounted for 2% of the

total number of executions between 1642 and 1986. Stanford,

492 U.S. at 373-74. Comparing that with the data for 1973

through 2003 reveals an upward trend. Since 1973, 22

are aware of no such data.

“Actually, the number may be higher, Streib acknowledges

that his data “almost invariably under-report the number of death

sentenced juvenile offenders... .” Streib, supra, at page 2.

ae FM

individuals who murdered at the ages of sixteen and seventeen

have been executed, out of a total of 901 executions — a rate of

2.4%. Thus executions of those who were sixteen and

seventeen years old at the time they murdered is 20% higher, as

a proportion of total executions, than the historical rate of 2%

noted by the court in Stanford. Streib, supra, at 4.

Finally, in Stanford the Court observed that the last

execution of a person who committed a crime under seventeen

years of age had occurred in 1959. 492 U.S. at 374. The

question here, of course, is punishment for those who murder at

seventeen. And the execution data there is telling: twenty-one

since 1973. Streib, supra, at 4. Again, the data regarding actual

executions points away from the kind of consensus for limiting

capital punishment that this Court found in Atkins and the

Missouri court found here.

Instead of looking at sentences and executions, as this

Court did in Stanford, 492 U.S. at 373-74, the Supreme Court

of Missouri looked only at the number of states that had

actually conducted executions. Since 1985, seven states,

including Missouri, had since 1985, executed an offender who

was sixteen or seventeen at the time of the offense. Streib,

supra, at 4. Nothing in that data supports the consensus that the

Missouri court posits.

Even if counting states performing executions were the

appropriate method of analysis, the data relied upon by the

Missouri court would be insufficient. It severely understates the

situation. Currently thirteen states — including Missouri — have

individuals awaiting capital punishment who committed their

crimes while under age eighteen. Jd. at 24-30. There is no

basis in the Missouri court’s decision for supposing that the

absence of such individuals from other states’ lists is the result

of juries’ views regarding capital punishment. The fact remains

that capital sentences and executions of those who commit

heinous crimes before turning eighteen are more common now

than they were when Stanford was decided. The contemporary

history of jury verdicts simply does not support the claim that

imposing capital punishment on persons who commit heinous

crimes shortly before turning eighteen has “become truly

unusual,” or that it would be “fair to say that a national

consensus has developed against it.” Atkins, 536 U.S. at 316.

D. A new consensus contrary to Stanford is unlikely, given

that making capital punishment available as a penalty for

those who, before turning eighteen, methodically commit

the most heinous crimes serves society’s interests in

retribution and deterrence.

Moving away from objective indications of consensus,

the Court has also addressed whether capital punishment for

sixteen- or seventeen-year-old murderers serves the societal

purposes that capital punishment fulfills. See Ford v.

Wainwright, 477 U.S. 399, 409 (1986). Of course, in this

respect, the Missouri court never implies that something has

changed since 1989 to suggest that this Court was wrong on this

point in Stanford, or that the analysis today should be any

different. Nor does the Missouri court consider that whether a

society should allow capital punishment as an option for any

particular group of murderers is, in the first instance, a political

question. Whether capital punishment in those circumstances

effectively serves societal goals such as retribution and

deterrence is a question better answered in legislative rather

than in judicial forums. Nonetheless, to the extent the Supreme

Court of Missouri assumed that role (see App. A-130 to A-131),

it relied on faulty premises.

Initially, the Missouri court seems to have found that

those who murder at age seventeen are less culpable as a class

than those who murder at age eighteen. (App. A-131). This

Court has rejected that contention, and the court below gives no

reason to set aside this Court’s analysis. In Stanford, the Court

rejected a constitutional policy of stereotyping on the basis of

an offender being age sixteen or seventeen. 492 U.S. at 378.

Instead, the Court recognized that the abilities of individual

youth differ; thus, it should be up to the jury to determine the

appropriate punishment. See id.

The correctness of this Court’s conclusion — and the

error in the assumption made below — seems obvious. Youth

mature, but not in a uniform way. As the President’s

Commission on Law Enforcement and Administration of

Justice concluded:

[S]ome youths handled by juvenile courts are

hardened, dangerous offenders, while some

adults older than the arbitrary upper age are

emotionally and sometimes physically immature

individuals. ... No chronological age bracket is

uniformly identical or entirely homogenous.

The President’s Commission on Law Enforcement and

Administration of Justice, Task Force Report: Juvenile

Delinquency and Youth Crime (1967), at 119-20. See also Fare

v. Michael C., 442 U.S. 707, 734 n.4 (1979) (Powell, J.,

dissenting).

The variation in the maturation process minimizes the

value of age, standing alone, as a basis for determining when

capital punishment serves or fails to serve societal interest.

“(A]ge is simply a ‘proxy’ for a combination of factors such as

maturity, judgment, responsibility, and the capability to assess

the possible consequences of one’s conduct.” Joseph L.

Hoffmann, On the Perils of Line Drawing: Juveniles and the

Death Penalty, 40 Hastings L.J. 229, 258 (1989). There is

certainly a point at which age is an appropriate proxy for

determining whether imposing capital punishment on an

individual makes sense, even without legislation. In the

common law, it was age seven. Thompson v. Oklahoma, 487

U.S. at 864 (Scalia, J. dissenting), citing 4 Blackstone

Commentaries *23-*24. Under the consensus recognized in

Thompson and Stanford, it is sixteen.

But in general, the social question of the minimum age

at which capital punishment can be imposed — even for most

heinous crimes — is not one that can be answered with any

certainty. Thus the Missouri legislature’s post-Stanford

decision to set the line at sixteen should be given substantial

deference. See Gregg v. Georgia, 428 U.S. at 174-76. The

legislatures in Missouri and elsewhere could rationally

determine; given their review of social science literature and

their statutes, and from their own experiences, that the societal

purpose of retribution is fulfilled by capital punishment with the

constitutional line drawn at sixteen. See id. at 186-87. And

those legislatures could rationally determine that, with the

sixteen- and seventeen-year-old offender, the need for specific

deterrence and incapacitation is greater than for older offenders,

because of the longer period in which the offender could

reoffend.

Any such line is to some degree imprecise. If the courts

push further into the business of establishing such lines, they

will inevitably be faced with more and more questions. If the

line is eighteen,.why not twenty-one? Or thirty-five? Courts

relying on such ephemeral concepts as the effectiveness of

retribution and deterrence will find no principled place to stop.

That legislatures have adopted different ages as proxy for

maturity in other contexts provides no comfort in this respect.

Missouri permits driving at age fifteen, and unsupervised

driving at sixteen. (Mo. Rev. Stat. §§ 302.060(2), 302.130.1)

(2000). It forbids use of alcohol until twenty-one (Mo. Rev.

Stat. § 311.325 (2000)). Both are legislative judgments about

the ability of persons to manage complex, peer-influenced

behavior and the threat such behavior poses to public safety.

Tying a decision here to any one of the age limits imposed in

other contexts will merely ensure myriad future cases citing as

authority statutes setting higher limits in less relevant

circumstances.°

Certainly nothing in the facts of this case suggests that

the Missouri legislature’s decision to set the line for capital

punishment at the point approved in Stanford was irrational or

inappropriate. Respondent Simmons did not act impulsively;

he deliberately planned the burglary and murder. There is no

indication that he was unable to control his emotions and is

therefore less culpable. There is no indication that he was led

in the crime by older individuals; to the contrary, Simmons

recruited a fifteen and sixteen year old. The suggestion that

Simmons was unable to perform the cost-benefit analysis

associated with deterrence is unsupportable on the record here.

That Simmons told others they could avoid the most serious

punishment because they would be processed by the juvenile

justice system shows his concern about potential sanctions for

his wrongdoing and his misweierstanding of the reach of that

system, not a deficient ability to understand the consequences

of his actions.

Addressing deterrence, it is possible that the Missouri

court concluded that because few seventeen year old offenders

are executed, there is no deterrent effect. (App. A-133).

Hopefully, the principal reason few seventeen-year-old

offenders are subjected to capital punishment is because few

commit, with the requisite mental state, capital crimes. Perhaps

that is because the deterrent impact of even a few executions

* That is particularly true as to references to state laws that are

affected — or even coerced — by federal laws. See, e.g., 23 U.S.C. §

158(a)(1) (2000).

has been great. Regardless, to use that data to suggest a

diminished deterrent effect required the Missouri court to

ignore the impact of even two years of maturation — two years

that are important to juries. As noted earlier, the possibility of

a seventeen-year-old offender being executed is significantly

higher than it was for the fifteen-year-old offender in Thompson

v. Oklahoma. Only five fifteen-year-old offenders are discussed

in Thompson, 487 U.S. at 832-33; now 73 offenders (not

including Simmons) who were sixteen or seventeen years old

when they committed their crimes await execution. Streib,

supra, at pages 3, 23-29.

To the traditional concerns with how capital punishment

applied to a defined group serves societal interests in deterrence

and retribution, the Missouri court, perhaps prompted by a brief

reference in Atkins, 536 U.S. at 321, added a concern that “the

risk of wrongful execution” existed with young offenders.

(App. A-133). The court presented no authority for this

proposition. And the court’s analysis is facile. The court

asserted that youthful defendants have had less time as

compared to older ones to develop mitigating evidence. (App.

A-133). That argument is a neutral one; youthful defendants

have had less time to develop aggravating circumstances as

well. Further, a youthful defendant would have had time to

develop ties with local schools, counselors, coaches, and the

like; thus, those defendants have ample ability to develop

mitigating evidence. There is no categorical risk of error when

youthful defendants are tried that would justify courts taking

over the legislative role of defining the age at which persons,

regardless of their crimes, should be subject to capital

punishment.°

® The court below also concluded that there was a risk of

wrongful execution in this particular case because the government

rebutted the mitigating aspect of petitioner's age at the time of the

murder. (App. A-133). That point is misplaced on the record in

But again, whether and how making capital punishment

available as a penalty for some crimes committed by some

seventeen year olds increases risks of error and serves society’ s

interests in retribution and deterrence are not questions that can

be answered by objective criteria. And though answering them

may tell us whether there should be a national consensus

allowing or disallowing such a penalty, they tell us little or

anne Geet whether Gave to 6 conmenems ene way oF Ge

other.

E. Other evidence cited by the Missouri Supreme Court is

largely inapposite and entirely insufficient to demonstrate

a new and different national consensus.

This Court has debated the appropriateness of looking

anywhere beyond legislative acts and jury verdicts in

determining what constitutes a consensus that standards have

evolved to the point that a particular punishment now violates

constitutional guarantees. Compare Stanford, 492 U.S. at 377

with id. at 391 (Brennan, J., dissenting). One area of debate has

been whether and how the Court should evaluate the value of

capital punishment in terms of retribution and deterrence.

compare Stanford, 492 U.S. at 379-80 with id. at 403-05

(Brennan, J., dissenting). In the course of discussing the

possibility of consensus, members of the Court have also

mentioned other kinds of evidence. The Missouri court took

the hints, and invoked various other sources in its search for

consensus. Those sources are largely inapposite, their use is

problematic, and ultimately they do not lead to the conclusion

the Missouri court reached.

this case. But even if it were supportable, the point could justify

at most, a rule regarding how mitigation evidence is presented and

argued, not a blanket rule against capital punishment for those

who commit crimes at seventeen.

Polls and other social science research.

One basis cited by the Missouri court for its decision

was political polls concerning support for the death penalty for

juveniles. (App. A-i29). This Court has said, quite correctly,

that political polling data is an uncertain foundation upon which

to rest constitutional law. Stanford, 492 U.S. at 377. See also

Atkins v. Virginia, 536 U.S. at 326-27 (Rehnquist, C.J.,

dissenting), and 328-37 (Appendix to Opinion of Rehnquist,

C.J.). Justice Marshall observed that the utility of public

opinion polls in ascertaining standards of decency “cannot be

very great.” Furman v. Georgia, 408 U.S. at 361 (Marshall, J.,

concurring). In Atkins, the Court's reference to polling data and

the views of various social and professional organizations was

relegated to a footnote, and the Court noted that “these factors

are by no means dispositive.” 536 U.S. at 316. But here, even

if polls were dispositive, they would not demonstrate the

consistency and accuracy necessary to support a claimed

national consensus.

Perhaps reflecting concern about the rising rate of crime

committed by juveniles, the 34% of Missourians who support

capital punishment for juveniles (App. A-129; citing Juvenile

Offender Public Opinion Survey, Center for Advanced Social

Research, University of Missouri - Columbia (Mar. 2003)

available at http://www.abanet.org/crimjust/juvjus/mopoll.pdf))

is substantially higher than the 1965 Gallup Survey that

reported 23% favored the death penalty for persons under

twenty-one years of age. Victor Streib, Death Penalty for

Juveniles, 33 (1987). The issue before the Court is not whether

a majority of the public supports or opposes capital punishment

in these circumstances, a legislative issue, but whether it is

“generally abhorrent to the conscience of the community.”

Thompson v. Oklahoma, 487 U.S. at 832. Assuming for the

sake of argument that the 34% of Missourians figure cited by

the Missouri court represents the current national view, more

than one person in three supports retaining authority to execute

those who commit a capital homicide at age seventeen.

That polls do not prove a national consensus against

imposing capital punishment on any person who commits any

crime before turning eighteen is further demonstrated by the

fact that the more specific or concrete the poll question is, the

higher the response favoring use of capital punishment — and

by fluctuations in public opinion, as people hear of particularly

heinous crimes committed by young people. After the March

24, 1998 school shooting in Jonesburg, Arkansas, half of the

Americans polled said that eleven- and thirteen-year-old boys

should receive capital punishment. James Garbarino, Lost Boys

20 (1999). Similarly, when asked in the context of the D.C.

sniper shooting whether a particular sixteen- or seventeen-year-

old accused capital offender (Lee Boyd Malvo) should be

executed if found guilty of a capital offense, the answer was

overwhelmingly “yes.” A Vote.com poll taken in the wake of

the D.C. sniper shootings, asked whether we should “Abolish

the death penalty for minors?” Seventy-six percent responded,

“No! Murderers shouldn’t be able to use age to limit

punishment.” And the Harris Interactive survey for CNN and

Time Magazine found that 51% of respondents supported the

death penalty for suspected D.C. sniper Lee Boyd Malvo if he

were found guilty.’ Poll questions that inquire about executing

“juveniles” or “minors” in general terms are not reliable

indicators of public opinion about whether no sixteen- or

seventeen- year-old criminal who commits premeditated murder

"Vote.com poll results may be found at

http://www. vote.com/vResults/index.phtml? voteID=49 1 554 14&cat=4075

633.

*Results of the Harris Interactive survey are reported by the Death

Penalty Information Center on their website:

http://www .deathpenaltyinfo.org/article.php?scid=27&did=883.

should ever be eligible for the death penalty.

Social science research into juror voting, using

hypothetical cases before ersatz jurors, also demonstrates

societal acceptance uf capital punishment of young offenders.

See Catherine A. Crosby, et al., The Juvenile Death Penalty and

the Eighth Amendment, 19 Law & Human Behavior 245 (1995).

While only 60% of the study participants voted to execute the

study’s ten-year-old defendant, the figure rose to 90% in favor

of capital punishment of the defendant who was sixteen years

old. Jd. at 254. Forty percent of juvenile court judges believe

that the death penalty is warranted for some juvenile offenders.

Rorie Sherman, Juvenile Judges Say: Time to Get Tough, The

National L.J., Aug. 8, 1994, at Al. Such study and survey data,

like polling data, reveals that there is no national consensus

opposing capital punishment for offenders who murder at age

seventeen.

Opinions of “expert” and self-selected interest groups.

The Missouri court also looked to the positions of

lobbyist and special interest groups. (App. A-129). The court

did not attempt to articulate the significance of counting the

number of such groups in determining whether respondent had

met his heavy burden of showing a national consensus opposing

capital punishment for those who offend at ages sixteen and

seventeen. And this Court wisely “decline[d] the invitation to

rest constitutional law upon such uncertain foundations” in

Stanford. 492 U.S. at 377. Courts should not be in the position

of trying to determine whether a vote of a committee of the

YMCA of the USA (App. A-129), and other groups with their

inherent biases, constitutes meaningful evidence of a national

consensus.

International views.

The Missouri court also took note of views of the

international community in opposition to capital punishment.

(App. A-130). The court below did not, nor could it, explain

how such views reflect an American consensus that evolving

standards of decency proscribe capital punishment for one who

murders at seventeen.

To support its theory, the court below referred to Article

37(A) of the United Nations Convention on the Rights of the

Child. (App. A-130). As discussed above, that treaty has not

received the advice and consent of the United States Senate.

See supra at p. 28. Indeed, “the United States is the only

country in the world that has not yet ratified this international

agreement, in large part because of our desire to remain free to

retain the death penalty for juvenile offenders.” Streib, supra,

at 8.

The court below also found “of note” that two other

countries a!low capital punishment of those who offend when

they are sixteen and seventeen. (App. A-130). Again, the court

below did not, nor could it, explain how the justice practices of

other countries, be they Iran or Congo or even Canada or Great

Britain, show our national consensus for or against any

particular limit on capital punishment. As the Court observed

in Stanford, the Eighth Amendment inquiry is into the standard

of decency in modern American society as a whole, not the

standard in soc. -ties in first, second, or third world countries.

Stanford, 492 U.S. at 369 n.1. This Court has properly stated

that in ascertaining the standard of decency of American

society, courts should look to the political attitudes of our

society, not of societies from around the globe. /d.

* ° .

These kind of considerations, though discussed by this

Court in the past, have never been the basis for a decision that

American standards of decency have evolved so as to make any

particular punishment “cruel and unusual.” At most, they have

buttressed positions based on more objective indicia of a

national consensus. To turn now to these ephemeral

considerations would open the door to abuse and uncertainty —

particularly were the Court, as discussed in point I, supra, to

free the lower courts to reach their own independent and

contradictory conclusions as to what the Eighth Amendment

means.

CONCLUSION

For the reasons stated above, the Court should reverse *\

the decision of the Missouri Supreme Court and reaffirm its