Slip Opinion — Roper v. Simmons

(Shp Opinion) OCTOBER TERM, 2004 1

Syllabus

United States v. it Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

ROPER, SUPERINTENDENT, POTOSI CORREC-

TIONAL CENTER v. SIMMONS

CERTIORARI TO THE SUPREME COURT OF MISSOURI

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

At age 17, respondent Simmons planned and committed a capital mur-

der. After he had turned 18, he was sentenced to death. His direct

appeal and subsequent itions for state and federal postconviction

relie Court then held, in Atkins v. Virginia, 536

U.S. 304, that the Eighth Amendment, applicable to the States

through the Fourteenth Amendment, prohibits the execution of a

mentally retarded person. Simmons filed a new petition for state

postconviction relief, arguing that Atkins’ reasoning established that

the Constitution prohibits the execution of a juvenile who was under

18 when he committed his crime. The Missouri Supreme Court

agreed and set aside Simmons’ death sentence in favor of life impris-

onment without eligibility for release. It held that, although Stan-

ford v. Kentucky, 492 U. S. 361, rejected the proposition that the Con-

stitution bars capital punishment for juvenile offenders younger than

18, a national consensus has developed against the execution of those

offenders since Stanford.

Held: The Eighth and Fourteenth Amendments forbid imposition of the

death penalty on offenders who were under the age of 18 when their

crimes were committed. Pp. 6-25.

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

usual punishments” must be interpreted according to its text, by con-

sidering history, tradition, and precedent, and with due regard for its

purpose and function in the constitutional design. To implement this

framework this Court has established the propriety and affirmed the

necessity of referring to “the evolving standards of decency that mark

the progress of a maturing society” to determine which punishments

are so disproportionate as to be “cruel and unusual.” Trop v. Dulles,

356 U. S. 86, 100-101. In 1988, in Thompson v. Oklahoma, 487 U. S.

ROPER v. SIMMONS

Syllabus

815, 818-838, a plurality determined that national standards of de-

cency did not permit the execution of any offender under age 16 at

the time of te erime: The next year, in Stanford, a 5-to-4 Court re-

ferred to temporary standards of decency, but concluded the

Eighth and Fourteenth Amendments did not proscribe the execution

of offenders over 15 but under 18 because 22 of 37 death penalty

States permitted that penalty for 16-year-old offenders, and 25 per-

mitted it for 17-year-olds, thereby indicating there was no national

consensus. 492 U. S., at 370-371. A plurality also “emphatically re-

ject[ed]” the suggestion that the Court should bring its own judgment

to bear on the acceptability of the juvenile death penalty. Id., at 377-

378. That same day the Court held, in Penry v. Lynaugh, 492 U. S.

302, 334, that the Eighth Amendment did not mandate a categorical

exemption from the death penalty for mentally retarded persons be-

cc. se only two States had enacted laws banning such executions.

Three Terms ago in Atkins, however, the Court held that standards of

decency had evolved since Penry and now demonstrated that the exe-

cution of the mentally retarded is cruel and unusual punishment.

The Atkins Court noted that objective indicia of society's standards,

as expressed in pertinent legislative enactments and state practice,

demonstrated that such executions had become so truly unusual that

it was fair to say that a national consensus has developed against

them. 536 U. S. at 314-315. The Court also returned to the rule, es-

tablished in decisions predating Stanford, that the Constitution con-

templates that the Court's own judgment be brought to bear on the

question of the acceptability of the death penalty. Id., at 312. After

observing that mental retardation diminishes personal culpability

even if the offender can distinguish right from wrong, id., at 318, and

that mentally retarded offenders’ impairments make it less defensi-

ble to impose the death penalty as retribution for past crimes or as a

real deterrent to future crimes, id., at 319-320, the Court ruled that

the death penalty constitutes an excessive sanction for the entire

category of mentally retarded offenders, and that the Eighth

Amendment places a substantive restriction on the State’s power to

take such an offender's life, id., at 321. Just as the Atkins Court re-

considered the issue decided in Penry, the Court now reconsiders the

issue decided in Stanford. Pp. 6-10.

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

by the enactments of legislatures that have addressed the question,

and the Court's own determination in the exercise of its independent

judgment, demonstrate that the death penalty is a disproportionate

punishment for juveniles. Pp. 10-21.

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

here—the rejection of the juvenile death penalty in the majority of

Cite as: 543 U. 8. (2005) 3

Syllabus

States; the infrequency of its use even where it remains on the books;

and the consistency in the trend toward abolition of the practice

provide sufficient evidence that today society views juveniles, in the

words Atkins used respecting the mentally retarded, as “categorically

less culpable than the average criminal,” 536 U. S., at 316. The evi-

dence of such consensus is similar, and in some respects parallel, to

the evidence in Atkins: 30 States prohibit the juvenile death penalty,

including 12 that have rejected it altogether and 18 that maintain it

but, by express provision or judicial interpretation, exclude juveniles

from its reach. Moreover, even in the 20 States without a formal

prohibition, the execution of juveniles is infrequent. Although, by

contrast to Atkins, the rate of change in reducing the incidence of the

juvenile death penalty, or in taking specific steps to abolish it, has

been less dramatic, the difference between this case and Atkins in

that respect is counterbalanced by the consistent direction of the

change toward abolition. Indeed, the slower pace here may be ex-

plained by the simple fact that the impropriety of executing juveniles

between 16 and 18 years old gained wide recognition earlier than the

impropriety of executing the mentally retarded. Pp. 10-13.

(2) Rejection of the imposition of the death penalty on juvenile of-

fenders under 18 is required by the Eighth Amendment. Capital

punishment must be limited to those offenders who commit “a narrow

category of the most serious crimes” and whose extreme culpability

makes them “the most deserving of execution.” Atkins, 536 U. S. at

319. Three general differences between juveniles under 18 and

adults demonstrate that juvenile offenders cannot with reliability be

classified among the worst offenders. Juveniles’ susceptibility to im-

mature and irresponsible behavior means “their irresponsible con-

duct is not as morally reprehensible as that of an adult.” Thompson

v. Oklahoma, 487 U.S. 815, 835. Their own vulnerability and com-

parative lack of control over their immediate surroundings mean ju-

veniles have a greater claim than adults to be forgiven for failing to

escape negative influences in their whole environment. See Stanford,

supra, at 395. The reality that juveniles still struggle to define their

identity means it is less supportable o conclude that even a heinous

crime committed by a juvenile is evidence of irretrievably depraved

character. The Thompson plurality recognized the import of these

characteristics with respect to juveniles under 16. 487 U. S., at 833

838. The same reasoning applies to all juvenile offenders under 18.

Once juveniles’ diminished culpability is recognized, it is evident that

neither of the two penological justifications for the death penalty—

retribution and deterrence of capital crimes by prospective offenders,

e.g., Atkins, 536 U. S., at 319—provides adequate justification for im-

posing that penalty on juveniles. Although the Court cannot deny or

4 ROPER v. SIMMONS

Syllabus

overlook the brutal crimes too many juvenile offenders have commit-

ted, it disagrees with petitioner's contention that, given the Court's

own insistence on individualized consideration in capital sentencing,

it is arbitrary and unnecessary to adopt a categorical rule barring

imposition of the death penalty on an offender under 18. An unac-

ceptable likelihood exists that the brutality or cold-blooded nature of

any particular crime would overpower mitigating arguments based

on youth as a matter of course, even where the juvenile offender's ob-

jective immaturity, vulnerability, and lack of true depravity should

require a sentence less severe than death. When a juvenile commits

a heinous crime, the State can exact forfeiture of some of the most

basic liberties, but the State cannot extinguish his life and his poten-

tial to attain a mature understanding of his own humanity. While

drawing the line at 18 is subject to the objections always raised

against categorical rules, that is the point where society draws the

line for many purposes between childhood and adulthood and the age

at which the line for death eligibility ought to rest. Stanford should

be deemed no longer controlling on this issue. Pp. 14—21.

(c) The overwhelming weight of international opinion against the

juvenile death penalty is not controlling here, but provides respected

and significant confirmation for the Court’s determination that the

penalty is disproportionate punishment for offenders under 18. See,

e.g., Thompson, supra, at 830-831, and n. 31. The United States is

the only country in the world that continues to give official sanction

to the juvenile penalty. It does not lessen fidelity to the Constitution

or pride in its origins to acknowledge that the express affirmation of

certain fundamental rights by other nations and peoples underscores

the centrality of those same rights within our own heritage of free-

dom. Pp. 21-25.

112 S. W. 3d 397, affirmed.

KENNEDY, J., delivered the opinion of the Court, in which STEVENS,

SOUTER, GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed a concur-

ring opinion, in which GINSBURG, J., joined. O'CONNOR, J., filed a dis -

senting opinion. SCALIA, J., filed a dissenting opinion, in which

REHNQUIST, C. J., and THOMAS, J., joined.

— — NT

Cite as: 543 U. 8. (2006) 1

SUPREME COURT OF THE UNITED STATES

No. 03-633

DONALD P. ROPER, SUPERINTENDENT, POTOSI

CORRECTIONAL CENTER, PETITIONER v.

CHRISTOPHER SIMMONS

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

MISSOURI

[March 1, 2005]

JUSTICE KENNEDY delivered the opinion of the Court.

This case requires us to address, for the second time in a

decade and a half, whether it is permissible under the

Eighth and Fourteenth Amendments to the Constitution

of the United States to execute a juvenile offender who

was older than 15 but younger than 18 when he commit-

ted a capital crime. In Stanford v. Kentucky, 492 U. S. 361

(1989), a divided Court rejected the proposition that the

Constitution bars capital punishment for juvenile offend-

ers in this age group. We reconsider the question.

At the age of 17, when he was still a junior in high

school, Christopher Simmons, the respondent here, com-

mitted murder. About nine months later, after he had

turned 18, he was tried and sentenced to death. There is

little doubt that Simmons was the instigator of the crime.

Before its commission Simmons said he wanted to murder

someone. In chilling, callous terms he talked about his

plan, discussing it for the most part with two friends,

Charles Benjamin and John Tessmer, then aged 15 and 16

2 ROPER v. SIMMONS

Opinion of the Court

respectively. Simmons proposed to commit burglary and

murder by breaking and entering, tying up a victim, and

throwing the victim off a bridge. Simmons assured his

friends they could “get away with it” because they were

minors.

The three met at about 2 a.m. on the night of the mur-

der, but Tessmer left before the other two set out. (The

State later charged Tessmer with conspiracy, but dropped

the charge in exchange for his testimony against Sim-

mons.) Simmons and Benjamin entered the home of the

victim, Shirley Crook, after reaching through an open

window and unlocking the back door. Simmons turned on

a hallway light. Awakened, Mrs. Crook called out, Who's

there“ In response Simmons entered Mrs. Crook's bed-

room, where he recognized her from a previous car acci-

dent involving them both. Simmons later admitted this

confirmed his resolve to murder her.

Using duct tape to cover her eyes and mouth and bind

her hands, the two perpetrators put Mrs. Crook in her

minivan and drove to a state park. They reinforced the

bindings, covered her head with a towel, and walked her

to a railroad trestle spanning the Meramec River. There

they tied her hands and feet together with electrical wire,

wrapped her whole face in duct tape and threw her from

the bridge, drowning her in the waters below.

By the afternoon of September 9, Steven Crook had

returned home from an overnight trip, found his bedroom

in disarray, and reported his wife missing. On the same

afternoon fishermen recovered the victim’s body from the

river. Simmons, meanwhile, was bragging about the

killing, telling friends he had killed a woman “because the

bitch seen my face.” ö

The next day, after receiving information of Simmons’

involvement, police arrested him at his high school and

took him to the police station in Fenton, Missouri. They

read him his Miranda rights. Simmons waived his right to

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Cite as: 543 U. 8. (2005) 3

Opinion of the Court

an attorney and agreed to answer questions. After less than

two hours of interrogation, Simmons confessed to the mur-

der and agreed to perform a videotaped reenactment at the

crime scene.

The State charged Simmons with burglary, kidnaping,

stealing, and murder in the first degree. As Simmons was

17 at the time of the crime, he was outside the criminal

jurisdiction of Missouri's juvenile court system. See Mo.

Rev. Stat. §§211.021 (2000) and 211.031 (Supp. 2003). He

was tried as an adult. At trial the State introduced Sim-

mons’ confession and the videotaped reenactment of the

crime, along with testimony that Simmons discussed the

crime in advance and bragged about it later. The defense

called no witnesses in the guilt phase. The jury having

returned a verdict of murder, the trial proceeded to the

penalty phase.

The State sought the death penalty. As aggravating

factors, the State submitted that the murder was commit-

ted for the purpose of receiving money; was committed for

the purpose of avoiding, interfering with, or preventing

lawful arrest of the defendant; and involved depravity of

mind and was outrageously and wantonly vile, horrible,

and inhuman. The State called Shirley Crook’s husband,

daughter, and two sisters, who presented moving evidence

of the devastation her death had brought to their lives.

In mitigation Simmons’ attorneys first called an officer

of the Missouri juvenile justice system, who testified that

Simmons had no prior convictions and that no previous

charges had been filed against him. Simmons’ mother,

father, two younger half brothers, a neighbor, and a friend

took the stand to tell the jurors of the close relationships

they had formed with Simmons and to plead for mercy on

his behalf. Simmons’ mother, in particular, testified to the

responsibility Simmons demonstrated in taking care of his

two younger half brothers and of his grandmother and to

his capacity to show love for them.

4 ROPER U SIMMONS

Opinion of the Court

During closing arguments, both the prosecutor and

defense counsel addressed Simmons’ age, which the trial

judge had instructed the jurors they could consider as a

mitigating factor. Defense counsel reminded the jurors

that juveniles of Simmons’ age cannot drink, serve on

juries, or even see certain movies, because “the legisla-

tures have wisely decided that individuals of a certain age

aren't responsible enough.” Defense counsel argued that

Simmons’ age should make “a huge difference to [the

jurors] in deciding just exactly what sort of punishment to

make.” In rebuttal, the prosecutor gave the following

response: “Age, he says. Think about age. Seventeen

years old. Isn't that scary? Doesn't that scare you? Miti-

gating? Quite the contrary I submit. Quite the contrary.”

The jury recommended the death penalty after finding

the State had proved each of the three aggravating factors

submitted to it. Accepting the jury’s recommendation, the

trial judge imposed the death penalty.

Simmons obtained new counsel, who moved in the trial

court to set aside the conviction and sentence. One argu-

ment was that Simmons had received ineffective assis-

tance at trial. To support this contention, the new counsel

called as witnesses Simmons’ trial attorney, Simmons’

friends and neighbors, and clinical psychologists who had

evaluated him.

Part of the submission was that Simmons was “very

immature,” “very impulsive,” and “very susceptible to

being manipulated or influenced.” The experts testified

about Simmons’ background including a difficult home

environment and dramatic changes in behavior, accompa-

nied by poor school performance in adolescence. Simmons

was absent from home for long periods, spending time

using alcohol and drugs with other teenagers or young

adults. The contention by Simmons’ postconviction coun-

sel was that these matters should have been established in

the sentencing proceeding. —

—

Cite as: 543 U. 8. (2005) 5

Opinion of the Court

The trial court found no constitutional violation by

reason of ineffective assistance of counsel and denied the

motion for postconviction relief. In a consolidated appeal

from Simmons’ conviction and sentence, and from the

denial of postconviction relief, the Missouri Supreme

Court affirmed. State v. Simmons, 944 S. W. 2d 165, 169

(en banc), cert. denied, 522 U. S. 953 (1997). The federal

courts denied Simmons’ petition for a writ of habeas cor-

pus. Simmons v. Bowersox, 235 F. 3d 1124, 1127 (CA8),

cert. denied, 534 U. S. 924 (2001).

After these proceedings in Simmons’ case had run their

course, this Court held that the Eighth and Fourteenth

Amendments prohibit the execution of a mentally retarded

person. Atkins v. Virginia, 536 U. S. 304 (2002). Simmons

filed a new petition for state postconviction relief, arguing

that the reasoning of Atkins established that the Constitu-

tion prohibits the execution of a juvenile who was under

18 when the crime was committed.

The Missouri Supreme Court agreed. State ex rel. Sim-

mons v. Roper, 112 S. W. 3d 397 (2003) (en banc). It held

that since Stanford,

“a national consensus has developed against the exe-

cution of juvenile offenders, as demonstrated by the

fact that eighteen states now bar such exeeutions-for~

juveniles, that twelve other states bar executions al-

together, that no state has lowered its age of execu-

tion below 18 since Stanford, that five states have leg-

islatively or by case law raised or established the

minimum age at 18, and that the imposition of the ju-

venile death penalty has become truly unusual over

the last decade.” 112 S. W. 3d, at 399.

On this reasoning it set aside Simmons’ death sentence

and resentenced him to “life imprisonment without eligi-

bility for probation, parole, or release except by act of the

Governor.” Id., at 413.

6 ROPER v. SIMMONS

Opinion of the Court

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

affirm.

II

The Eighth Amendment provides: “Excessive bail shall

not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” The provision is applica-

ble to the States through the Fourteenth Amendment.

Furman v. Georgia, 408 U. S. 238, 239 (1972) (per curiam);

Robinson v. California, 370 U.S. 660, 666-667 (1962);

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463

(1947) (plurality opinion). As the Court explained in

Atkins, the Eighth Amendment guarantees individuals the

right not to be subjected to excessive sanctions. The right

flows from the basic “‘precept of justice that punishment

for crime should be graduated and proportioned to [the]

offense.” 536 U.S., at 311 (quoting Weems v. United

States, 217 U.S. 349, 367 (1910)). By protecting even

those convicted of heinous crimes, the Eighth Amendment

reaffirms the duty of the government to respect the dignity

of all persons.

The prohibition against “cruel and unusual punish-

ments,” like other expansive language in the Constitution,

must be interpreted according to its text, by considering

history, tradition, and precedent, and with due regard for

its purpose and function in the constitutional design. To

implement this framework we have established the pro-

priet and affirmed the necessity of referring to “the evolv-

ing standards of decency that mark the progress of a

maturing society” to determine which punishments are so

disproportionate as to be cruel and unusual. Trop v.

Dulles, 356 U. S. 86, 100-101 (1958) (plurality opinion).

In Thompson v. Oklahoma, 487 U. S. 815 (1988), a

plurality of the Court determined that our standards of

decency do not permit the execution of any offender under

the age of 16 at the time of the crime. Id., at 818-838

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Cite as; 543 U. 8. (2006) 7

Opinion of the Court

(opinion of STEVENS, ., joined by Brennan, Marshall, and

Blackmun, JJ.). The plurality opinion explained that no

death penalty State that had given express consideration

to a minimum age for the death penalty had set the age

lower than 16. Id., at 826-829. The plurality also ob-

served that “[t]he conclusion that it would offend civilized

standards of decency to execute a person who was less

than 16 years old at the time of his or her offense is con-

sistent with the views that have been expressed by re-

spected professional organizations, by other nations that

share our Anglo-American heritage, and by the leading

members of the Western European community.” Id., at

830. The opinion further noted that juries imposed the

death penalty on offenders under 16 with exceeding rarity;

the last execution of an offender for a crime committed

under the age of 16 had been carried out in 1948, 40 years

prior. Id., at 832-833.

Bringing its independent judgment to bear on the per-

missibility of the death penalty for a 15-year-old offender,

the Thompson plurality stressed that the reasons why

juveniles are not trusted with the privileges and responsi-

bilities of an adult also explain why their irresponsible

conduct is not as morally reprehensible as that of an

adult.” Jd., at 835. According to the plurality, the lesser

culpability of offenders under 16 made the death penalty

inappropriate as a form of retribution, while the low like-

lihood that offenders under 16 engaged in “the kind of

cost-benefit analysis that attaches any weight to the pos-

sibility of execution” made the death penalty ineffective as

a means of deterrence. Id., at 836-838. With JUSTICE

O’CONNOR concurring in the judgment on narrower

grounds, id., at 848-859, the Court set aside the death

sentence that had been imposed on the 15-year-old

offender.

The next year, in Stanford v. Kentucky, 492 U.S. 361

(1989), the Court, over a dissenting opinion joined by four

8 ROPER v. SIMMONS

Opinion of the Court

Justices, referred to contemporary standards of decency in

this country and concluded the Eighth and Fourteenth

Amendments did not proscribe the execution of juvenile

offenders over 15 but under 18. The Court noted that 22

of the 37 death penalty States permitted the death penalty

for 16-year-old offenders, and, among these 37 States, 25

permitted it for 17-year-old offenders. These numbers, in

the Court’s view, indicated there was no national consen-

sus “sufficient to label a particular punishment cruel and

unusual.” Id., at 370-371. A plurality of the Court also

“emphatically rejectſed]“ the suggestion that the Court

should bring its own judgment to bear on the acceptability

of the juvenile death penalty. Id., at 377-378 (opinion of

SCALIA, I., joined by REHNQUIST, C. J., and White and

KENNEDY, JJ.); see also id., at 382 (O'CONNOR, J., concur-

ring in part and concurring in judgment) (criticizing the

plurality’s refusal “to judge whether the nexus between

the punishment imposed and the defendant's blamewor-

thiness”’ is proportional”).

The same day the Court decided Stanford, it held that

the Eighth Amendment did not mandate a categorical -

exemption from the death penalty for the mentally re-

tarded. Penry v. Lynaugh, 492 U.S. 302 (1989). In reach-

ing this conclusion it stressed that only two States had

enacted laws banning the imposition of the death penalty

on a mentally retarded person convicted of a capital of-

fense. Id., at 334. According to the Court, “the two state

statutes prohibiting execution of the mentally retarded,

even when added to the 14 States that have rejected capi-

tal punishment completely, [did] not provide sufficient

evidence at present of a national consensus.” Ibid.

Three Terms ago the subject was reconsidered in Atkins.

We held that standards of decency have evolved since

Penry and now demonstrate that the execution of the

mentally retarded is cruel and unusual punishment. The

Court noted objective indicia of society’s standards, as

e

Cite as: 543 U. 8. (2005) 9

Opinion of the Court

expressed in legislative enactments and state practice

with respect to executions of the mentally retarded. When

Atkins was decided only a minority of States permitted the

practice, and even in those States it was rare. 536 U. S.,

at 314-315. On the basis of these indicia the Court de-

termined that executing mentally retarded offenders has

become truly unusual, and it is fair to say that a national

consensus has developed against it.“ Id., at 316.

The inquiry into our society's evolving standards of

decency did not end there. The Atkins Court neither

repeated nor relied upon the statement in Stanford that

the Court's independent judgment has no bearing on the

acceptability of a particular punishment under the Eighth

Amendment. Instead we returned to the rule, established

in decisions predating Stanford, that “‘the Constitution

contemplates that in the end our own judgment will be

brought to bear on the question of the acceptability of the

death penalty under the Eighth Amendment.“ 536 U. S.,

at 312 (quoting Coker v. Georgia, 433 U. S. 584, 597 (1977)

(plurality opinion)). Mental retardation, the Court said,

diminishes personal culpability even if the offender can

distinguish right from wrong. 536 U.S., at 318. The

impairments of mentally retarded offenders make it less

defensible to impose the death penalty as retribution for

past crimes and less likely that the death penalty will

have a real deterrent effect. Id., at 319-320. Based on

these considerations and on the finding of national con-

sensus against executing the mentally retarded, the Court

ruled that the death penalty constitutes an excessive

sanction for the entire category of mentally retarded of-

fenders, and that the Eighth Amendment “‘places a sub-

stantive restriction on the State’s power to take the life’ of

a mentally retarded offender.” Id., at 321 (quoting Ford v.

Wainwright, 477 U. S. 399, 405 (1986)). a

Just as the Atkins Court reconsidered the issue decided

in Penry, we now reconsider the issue decided in Stanford.

10 ROPER v. SIMMONS

Opinion of the Court

The beginning point is a review of objective indicia of

consensus, as expressed in particular by the enactments of

legislatures that have addressed the question. This data

gives us essential instruction. We then must determine,

in the exercise of our own independent judgment, whether

the death penalty is a disproportionate punishment for

juveniles.

III

A

The evidence of national consensus against the death

penalty for juveniles is similar, and in some respects

parallel, to the evidence Atkins held sufficient to demon-

strate a national consensus against the death penalty for

the mentally retarded. When Atkins was decided, 30

States prohibited the death penalty for the mentally re-

tarded. This number comprised 12 that had abandoned

the death penalty altogether, and 18 that maintained it

but excluded the mentally retarded from its reach. 536

U. S., at 313-315. By a similar calculation in this case, 30

States prohibit the juvenile death penalty, comprising 12

that have rejected the death penalty altogether and 18

that maintain it but, by express provision or judicial in-

terpretation, exclude juveniles from its reach. See Appen-

dix A, infra. Atkins emphasized that even in the 20 States

without formal prohibition, the practice of executing the

mentally retarded was infrequent. Since Penry, only five

States had executed offenders known to have an IQ under

70. 536 U.S., at 316. In the present case, too, even in the

20 States without a formal prohibition on executing juve-

niles, the practice is infrequent. Since Stanford, six States

have executed prisoners for crimes committed as juveniles.

In the past 10 years, only three have done so: Okla-

homa, Texas, and Virginia. See V. Streib, The Juvenile

Death Penalty Today: Death Sentences and Executions

for Juvenile Crimes, January 1, 1973- December 31,

Cite as: 543 U. 8. (2005) 11

Opinion of the Court

2004, No. 76, p. 4 (2005), available at http://www.law.

onu.edu/ faculty / streib/ documents / JuvDeath Dec 2004. pdf

(last updated Jan. 31, 2005) (as visited Feb. 25, 2005, and

available in the Clerk of Court’s case file). In December

2003 the Governor of Kentucky decided to spare the life of

Kevin Stanford, and commuted his sentence to one of life

imprisonment without parole, with the declaration that

wle ought not be executing people who, legally, were

children.“ Lexington Herald Leader, Dec. 9, 2003, p. B3,

2003 WL 65043346. By this act the Governor ensured

Kentucky would not add itself to the list of States that

have executed juveniles within the last 10 years even by

the execution of the very defendant whose death sentence

the Court had upheld in Stanford v. Kentucky.

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

evidence of consensus in Atkins and in this case. Impres-

sive in Atkins was the rate of abolition of the death pen-

alty for the mentally retarded. Sixteen States that per-

mitted the execution of the mentally retarded at the time

of Penry had prohibited the practice by the time we heard

Atkins. By contrast, the rate of change in reducing the

incidence of the juvenile death penalty, or in taking spe-

cific steps to abolish it, has been slower. Five States that

allowed the juvenile death penalty at the time of Stanford

have abandoned it in the intervening 15 years—four

through legislative enactments and one through judicial

decision. Streib, supra, at 5, 7; State v. Furman, 122

Wash. 2d 400, 858 P. 2d 1092 (1993) (en banc).

Though less dramatic than the change from Penry to

Atkins (“telling,” to borrow the word Atkins used to de-

scribe this difference, 536 U.S., at 315, n. 18), we still

consider the change from Stanford to this case to be sig-

nificant. As noted in Atkins, with respect to the States

that had abandoned the death penalty for the mentally

retarded since Penry, lilt is not so much the number of

these States that is significant, but the consistency of the

12 ROPER v. SIMMONS

Opinion of the Court

direction of change.” 536 U.S., at 315. In particular we

found it significant that, in the wake of Penry, no State

that had already prohibited the execution of the mentally

retarded had passed legislation to reinstate the penalty.

536 U.S., at 315-316. The number of States that have

abandoned capital punishment for juvenile offenders since

Stanford is smaller than the number of States that aban-

doned capital punishment for the mentally retarded after

Penry; yet we think the same consistency of direction of

change has been demonstrated. Since Stanford, no State

that previously prohibited capital punishment for juve-

niles has reinstated it. This fact, coupled with the trend

toward abolition of the juvenile death penalty, carries

special force in light of the general popularity of anticrime

legislation, Atkins, supra, at 315, and in light of the par-

ticular trend in recent years toward cracking down on

juvenile crime in other respects, see H. Snyder & M. Sick-

mund, National Center for Juvenile Justice, Juvenile

Offenders and Victims: 1999 National Report 89, 133

(Sept. 1999); Scott & Grisso, The Evolution of Adolescence:

A Developmental Perspective on Juvenile Justice Reform,

88 J. Crim. L. & C. 137, 148 (1997). Any difference be-

tween this case and Atkins with respect to the pace of

abolition is thus counterbalanced by the consistent direc-

tion of the change.

The slower pace of abolition of the juvenile death pen-

alty over the past 15 years, moreover, may have a simple

explanation. When we heard Penry, only two death pen-

alty States had already prohibited the execution of the

mentally retarded. When we heard Stanford, by contrast,

12 death penalty States had already prohibited the execu-

tion of any juvenile under 18, and 15 had prohibited the

execution of any juvenile under 17. If anything, this

shows that the impropriety of executing juveniles between

16 and 18 years of age gained wide recognition earlier

than the impropriety of executing the mentally retarded.

Cite as: 543 U.S.__ (2005) 13

Opinion of the Court

In the words of the Missouri Supreme Court: “It would be

the ultimate in irony if the very fact that the inappropri-

ateness of the death penalty for juveniles was broadly

recognized sooner than it was recognized for the mentally

retarded were to become a reason to continue the execu-

tion of juveniles now that the execution of the mentally

retarded has been barred.” 112 S. W. 3d, at 408, n. 10.

Petitioner cannot show national consensus in favor of

capital punishment for juveniles but still resists the con-

clusion that any consensus exists against it. Petitioner

supports this position with, in particular, the observation

that when the Senate ratified the International Covenant

on Civil and Political Rights (ICCPR), Dec. 19, 1966, 999

U. N. T. S. 171 (entered into force Mar. 23, 1976), it did so

subject to the President’s proposed reservation regarding

Article 6(5) of that treaty. which prohibits capital punish-

ment for juveniles. Brief for Petitioner 27. This reserva-

tion at best provides only faint support for petitioner’s

argument. First, the reservation was passed in 1992;

since then, five States have abandoned capital punish-

ment for juveniles. Second, Congress considered the issue

when enacting the Federal Death Penalty Act in 1994, and

determined that the death penalty should not extend to

juveniles. See 18 U.S. C. §3591. The reservation to Arti-

cle 6(5) of the ICCPR provides minimal evidence that

there is not now a national consensus against juvenile

executions.

As in Atkins, the objective indicia of consensus in this

case the rejection of the juvenile death penalty in the

majority of States; the infrequency of its use even where it

remains on the books; and the consistency in the trend

toward abolition of the practice—provide sufficient evi-

dence that today our society views juveniles, in the words

Atkins used respecting the mentally retarded, as “cate-

gorically less culpable than the average criminal.” 536

U. S., at 316.

14 ROPER v. SIMMONS

Opinion of the Court

B

A majority of States have rejected the imposition of the

death penalty on juvenile offenders under 18, and we now

hold this is required by the Eighth Amendment.

Because the death penalty is the most severe punish-

ment, the Eighth Amendment applies to it with special

force. Thompson, 487 U. S., at 856 (O'CONNOR, q., concur-

ring in judgment). Capital punishment must be limited to

those offenders who commit “a narrow category of the

most serious crimes” and whose extreme culpability makes

them “the most deserving of execution.” Atkins, supra, at

319. This principle is implemented throughout the capital

sentencing process. States must give narrow and precise

definition to the aggravating factors that can result in a

capital sentence. Godfrey v. Georgia, 446 U. S. 420, 428

429 (1980) (plurality opinion). In any capital case a de-

fendant has wide latitude to raise as a mitigating factor

“any aspect of [his or her] character or record and any of

the circumstances of the offense that the defendant prof-

fers as a basis for a sentence less than death.” Lockett v.

Ohio, 438 U.S. 586, 604 (1978) (plurality opinion); Ed-

dings v. Oklahoma, 455 U. S. 104, 110—112 (1982); see also

Johnson v. Texas, 509 U. S. 350, 359-362 (1993) (summa-

rizing the Court’s jurisprudence after Furman v. Georgia,

408 U.S. 238 (1972) (per curiam), with respect to a sen-

tencer’s consideration of aggravating and mitigating fac-

tors). There are a number of crimes that beyond question

are severe in absolute terms, yet the death penalty may

not be imposed for their commission. Coker v. Georgia,

433 U. S. 584 (1977) (rape of an adult woman); Enmund v.

Florida, 458 U. S. 782 (1982) (felony murder where defen-

dant did not kill, attempt to kill, or intend to kill). The

death penalty may not be imposed on certain classes of

offenders, such as juveniles under 16, the insane, and the

mentally retarded, no matter how heinous the crime.

Thompson v. Oklahoma, supra; Ford v. Wainwright, 477

Cite as: 543 U. 8. (2006) 15

Opinion of the Court

U. S. 399 (1986); Atkins, supra. These rules vindicate the

underlying principle that the death penalty is reserved for

a narrow category of crimes and offenders.

Three general differences between juveniles under 18

and adults demonstrate that juvenile offenders cannot

with reliability be classified among the worst offenders.

First, as any parent knows and as the scientific and socio-

logical studies respondent and his amici cite tend to con-

firm, a] lack of maturity and an underdeveloped sense of

responsibility are found in youth more often than in adults

and are more understandable among the young. These

qualities often result in impetuous and ill-considered

actions and decisions.” Johnson, supra, at 367; see also

Eddings, supra, at 115116 (“Even the normal 16-year-old

customarily lacks the maturity of an adult”). It has been

noted that “adolescents are overrepresented statistically

in virtually every category of reckless behavior.” Arnett,

Reckless Behavior in Adolescence: A Developmental Per-

spective, 12 Developmental Review 339 (1992). In recog-

nition of the comparative immaturity and irresponsibility

of juveniles, almost every State prohibits those under 18

years of age from voting, serving on juries, or marrying

without parental consent. See Appendixes BD, infra.

The second area of difference is that juveniles are more

vulnerable or susceptible to negative influences and out-

side pressures, including peer pressure. Eddings, supra,

at 115 (“[YJouth is more than a chronological fact. It is a

time and cond ew a person may be most

susceptible to influence and to psychological damage”).

This is explained in part by the prevailing circumstance

that juveniles have less control, or less experience with

control, over their own environment. See Steinberg &

Scott, Less Guilty by Reason of Adolescence: Developmen-

tal Immaturity, Diminished Responsibility, and the Juve-

nile Death Penalty, 58 Am. Psychologist 1009, 1014 (2003)

(hereinafter Steinberg & Scott) (“[A]s legal minors, [juve-

16 ROPER v. SIMMONS

Opinion of the Court

niles} lack the freedom that adults have to extricate them-

selves from a criminogenic setting”).

The third broad difference is that the character of a

juvenile is not as well formed as that of an adult. The

personality traits of juveniles are more transitory, less

fixed. See generally E. Erikson, Identity: Youth and Crisis

(1968).

These differences render suspect any conclusion that a

juvenile falls among the worst offenders. The susceptibil-

ity of juveniles to immature and irresponsible behavior

means “their irresponsible conduct is not as morally rep-

rehensible as that of an adult.” Thompson, supra, at 835

(plurality opinion). Their own vulnerability and compara-

tive lack of control over their immediate surroundings

mean juveniles have a greater claim than adults to be

forgiven for failing to escape negative influences in their

whole environment. See Stanford, 492 U. S., at 395 (Bren-

nan, J., dissenting). The reality that juveniles still strug-

gle to define their identity means it is less supportable to

conclude that even a heinous crime committed by a juve-

nile is evidence of irretrievably depraved character. From

a moral standpoint it would be misguided to equate the

failings of a minor with those of an adult, for a greater

possibility exists that a minor's character deficiencies will

be reformed. Indeed, the relevance of youth as a miti-

gating factor derives from the fact that the signature

qualities of youth are transient; as individuals mature, the

impetuousness and recklessness that may dominate in

younger years can subside.” Johnson, supra, at 368; see

also Steinberg & Scott 1014 (“For most teens, [risky or

antisocial] behaviors are fleeting; they cease with maturity

as individual identity becomes settled. Only a reiatively

small proportion of adolescents who experiment in risky or

illegal activities develop entrenched patterns of problem

behavior that persist into adulthood”).

In Thompson, a plurality of the Court recognized the

Cite as: 543 U.S. __ (2005) 17

Opinion of the Court

import of these characteristics with respect to juveniles

under 16, and relied on them to hold that the Eighth

Amendment prohibited the imposition of the death penalty

on juveniles below that age. 487 U.S., at 833-838. We

conclude the same reasoning applies to all juvenile offend-

ers under 18.

Once the diminished culpability of juveniles is recog-

nized, it is evident that the penological justifications for

the death penalty apply to them with lesser force than to

adults. We have held there are two distinct social pur-

poses served by the death penalty: “‘retribution and deter-

rence of capital crimes by prospective offenders. Atkins,

536 U. S., at 319 (quoting Gregg v. Georgia, 428 U. S. 153,

183 (1976) (joint opinion of Stewart, Powell, and STEVENS,

JJ.)). As for retribution, we remarked in Atkins that “[ijf

the culpability of the average murderer is insufficient to

justify the most extreme sanction available to the State,

the lesser culpability of the mentally retarded offender

surely does not merit that form of retribution.” 536 U. S.,

at 319. The same conclusions follow from the lesser cul-

pability of the juvenile offender. Whether viewed as an

attempt to express the community's moral outrage or as

an attempt to right the balance for the wrong to the vic-

tim, the case for retribution is not as strong with a minor

as with an adult. Retribution is not proportional if the

law’s most severe penalty is imposed on one whose culpa-

bility or blameworthiness is diminished, to a substantial

degree, by reason of youth and immaturity.

As for deterrence, it is unclear whether the death pen-

alty has a significant or even measurable deterrent effect

on juveniles, as counsel for the petitioner acknowledged at

oral argument. Tr. of Oral Arg. 48. In general we leave to

legislatures the assessment of the efficacy of various

criminal penalty schemes, see Harmelin v. Michigan, 501

U.S. 957, 998-999 (1991) (KENNEDY, J., concurring in

part and concurring in judgment). Here, however, the

18 ROPER v. SIMMONS

Opinion of the Court

absence of evidence of deterrent effect is of special concern

because the same characteristics that render juveniles less

culpable than adults suggest as well that juveniles will be

less susceptible to deterrence. In particular, as the plural-

ity observed in Thompson, “(t]he likelihood that the teen-

age offender has made the kind of cost-benefit analysis

that attaches any weight to the possibility of execution is

so remote as to be virtually nonexistent.” 487 U. S., at

837. To the extent the juvenile death penalty might have

residual deterrent effect, it is worth noting that the pun-

ishment of life imprisonment without the possibility of

parole is itself a severe sanction, in particular for a young

person. 1

In concluding that neither retribution nor deterrence

provides adequate justification for imposing the death

penalty on juvenile offenders, we cannot deny or overlook

the brutal crimes too many juvenile offenders have com-

mitted. See Brief for Alabama etal. as Amici Curiae.

Certainly it can be argued, although we by no means

concede the point, that a rare case might arise in which a

juvenile offender has sufficient psychological maturity,

and at the same time demonstrates sufficient depravity, to

merit a sentence of death. Indeed, this possibility is the

linchpin of one contention pressed by petitioner and his

amici. They assert that even assuming the truth of the

observations we have made about juveniles’ diminished

culpability in general, jurors nonetheless should be al-

lowed to consider mitigating arguments related to youth

on a case-by-case basis, and in some cases to impose the

death penalty if justified. A central feature of death pen-

alty sentencing is a particular assessment of the circum-

stances of the crime and the characteristics of the of-

fender. The system is designed to consider both

aggravating and mitigating circumstances, including

youth, in every case. Given this Court’s own insistence on

individualized consideration, petitioner maintains that it

Cite as: 543 U. 8. (2005) 19

Opinion of the Court

is both arbitrary and unnecessary to adopt a categorical

rule barring imposition of the death penalty on any of-

fender under 18 years of age.

We disagree. The differences between juvenile and

adult offenders are too marked and well understood to risk

allowing a youthful person to receive the death penalty

despite insufficient culpability. An unacceptable likeli-

hood exists that the brutality or cold-blooded nature of any

particular crime would overpower mitigating arguments

based on youth as a matter of course, even where the

juvenile offender’s objective immaturity, vulnerability, and

lack of true depravity should re.uire a sentence less se-

vere than death. In some cases a defendant’s youth may

even be counted against him. In this very case, as we

noted above, the prosecutor argued Simmons’ youth was

aggravating rather than mitigating. Supra, at 4. While

this sort of overreaching could be corrected by a particular

rule to ensure that the mitigating force of youth is not

overlooked, that would not address our larger concerns.

It is difficult even for expert psychologists to differenti-

ate between the juvenile offender whose crime reflects

unfortunate yet transient immaturity, and the rare juve-

nile offender whose crime reflects irreparabie corruption.

See Steinberg & Scott 1014-1016. As we understand it,

from diagnosing any patient under 18 as having antisocial

personality disorder, a disorder also referred to as psycho-

pathy or sociopathy, and which is characterized by cal-

lousness, cynicism, and contempt for the feelings, rights,

and suffering of others. American Psychiatric Association,

Diagnostic and Statistical Manual of Mental Disorders

701-706 (4th ed. text rev. 2000); see also Steinberg &

Scott 1015. If trained psychiatrists with the advantage of

clinical testing and observation refrain, despite diagnostic

expertise, from assessing any juvenile under 18 as having

antisocial personality disorder, we conclude that States

20 ROPER v. SIMMONS

Opinion of the Court

should refrain from asking jurors to issue a far graver

condemnation—that a juvenile offender merits the death

penalty. When a juvenile offender commits a heinous

crime, the State can exact forfeiture of some of the most

hasic liberties, but the State cannot extinguish his life and

his potential to attain. mature understanding of his own

humanity.

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

to the objections always raised against categorical rules.

The qualities that distinguish juveniles from adults do not

disappear when an individual turns 18. By the same

token, some under 18 have already attained a level of

maturity some adults will never reach. For the reasons

we have discussed, however, a line must be drawn. The

plurality opinion in Thompson drew the line at 16. In the

intervening years the Thompson plurality's conclusion

that offenders under 16 may not be executed has not been

challenged. The logic of Thompson extends to those who

are under 18. The age of 18 is the point where society

draws the line for many purposes between childhood and

adulthood. It is, we conclude, the age at which the line for

death eligibility ought to rest.

These considerations mean Stanford v. Kentucky should

be deemed no longer controlling on this issue. To the

extent Stanford was based on review of the objective

indicia of consensus that obtained in 1989, 492 U. 8., at

370-371, it suffices to note that those indicia have

changed. Supra, at 10-13. It should be observed, fur-

thermore, that the Stanford Court should have considered

those States that had abandoned the death penalty alto-

gether as part of the consensus against the juvenile death

penalty, 492 U.S., at 370, n. 2; a State’s decision to bar

the death penalty altogether of necessity demonstrates a

judgment that the death penalty is inappropriate for all

offenders, including juveniles. Last, to the extent Stan-

ford was based on a rejection of the idea that this Court is

— —ͤͤ 2 „ eee

Cite as: 543 U. 8. (2005) 21

Opinion of the Court

required to bring its independent judgment to bear on the

proportionality of the death penalty for a particular class

of crimes or offenders, id., at 377-378 (plurality opinion),

it suffices to note that this rejection was inconsistent with

prior Eighth Amendment decisions, Thompson, 487 U. S.,

at 833-838 (plurality opinion); Enmund, 458 J. S., at 797;

Coker, 433 U.S., at 597 (plurality opinion). It is also

inconsistent with the premises of our recent decision in

Atkins. 536 U. S., at 312-313, 317-321.

In holding that the death penalty cannot be imposed

upon juvenile offenders, we take into account the circum-

stance that some States have relied on Stanford in seeking

the death penalty against juvenile offenders. This consid-

eration, however, does not outweigh our conclusion that

Stanford should no longer control in those few pending

cases or in those yet to arise.

IV

Our determination that the death penalty is dispropor-

tionate punishment for offenders under 18 finds confirma-

tion in the stark reality that the United States is the only

country in the world that continues to give official sanc-

tion to the juvenile death penalty. This reality does not

become controlling, for the task of interpreting the Eighth

Amendment remains our responsibility. Yet at least from

the time of the Court’s decision in Trop, the Court has

referred to the laws of other countries and to international

authorities as instructive for its interpretation of the

Eighth Amendment's prohibition of “cruel and unusual

punishments.” 356 U. S., at 102-103 (plurality opinion)

(“The civilized nations of the world are in virtual unanim-

ity that statelessness is not to be imposed as punishment

for crime”); see also Atkins, supra, at 317, n. 21 (recogniz-

ing that “within the world community, the imposition of

the death penalty for crimes committed by mentally re-

tarded offenders is overwhelmingly disapproved”); Thomp-

22 ROPER v. SIMMONS

Opinion of the Court

son, supra, at 830-831, and n. 31 (plurality opinion) (not-

ing the abolition of the juvenile death penalty “by other

nations that share our Anglo-American heritage, and by

the leading members of the Western European commu-

nity,” and observing that [wle have previously recognized

the relevance of the views of the international community

in determining whether a punishment is cruel and un-

usual”); Enmund, supra, at 796-797, n. 22 (observing that

“the doctrine of felony murder has been abolished in Eng-

land and India, severely restricted in Canada and a num-

ber of other Commonwealth countries, and is unknown in

continental Europe”); Coker, supra, at 596, n. 10 (plurality

opinion) (“It is .. not irrelevant here that out of 60 major

nations in the world surveyed in 1965, only 3 retained the

death penalty for rape where death did not ensue”).

As respondent and a number of amici emphasize, Article

37 of the United Nations Convention on the Rights of the

Child, which every country in the world has ratified save

for the United States and Somalia, contains an express

prohibition on capital punishment for crimes committed

by juveniles under 18. United Nations Convention on

the Rights of the Child, Art. 37, Nov. 20, 1989, 1577

U. N. T. S. 3, 28 I. L. M. 1448, 1468-1470 (entered into

force Sept. 2, 1990); Brief for Respondent 48; Brief for

European Union et al. as Amici Curiae 12-13; Brief for

President James Ear! Carter, Jr., et al. as Amici Curiae 9;

Brief for Former U.S. Diplomats Morton Abramowitz

et al. as Amici Curiae 7; Brief for Human Rights Commit-

tee of the Bar of England and Wales et al. as Amici Curiae

1314. No ratifying country has entered a reservation to

the provision prohibiting the execution of juvenile offend-

ers. Parallel prohibitions are contained in other signifi-

cant international covenants. See ICCPR, Art. 6(5), 999

U.N.T.S., at 175 (prohibiting capital punishment for

anyone under 18 at the time of offense) (signed and rati-

fied by the United States subject to a reservation regard-

Cite as: 543 U. 8. (2005) 23

Opinion of the Court

ing Article 6(5), as noted, supra, at 13); American Conven-

tion on Human Rights: Pact of San José, Costa Rica, Art.

4(5), Nov. 22, 1969, 1144 U. N. T. S. 146 (entered into

force July 19, 1978) (same); African Charter on the Rights

and Welfare of the Child, Art. 5(3), OAU Doc. CAB/LEG/

24.9/49 (1990) (entered into force Nov. 29, 1999) (same).

Respondent and his amici have submitted, and peti-

tioner does not contest, that only seven countries other

than the United States have executed juvenile offenders

since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria,

the Democratic Republic of Congo, and China. Since then

each of these countries has either abolished capital pun-

ishment for juveniles or made public disavowal of the

practice. Brief for Respondent 49-50. In sum, it is fair to

say that the United States now stands alone in a world

that has turned its face against the juvenile death penalty.

Though the international covenants prohibiting the

juvenile death penalty are of more recent date, it is in-

structive to note that the United Kingdom abolished the

juvenile death penalty before these covenants came into

being. The United Kingdom’s experience bears particular

relevance here in light of the historic ties between our

countries and in light of the Eighth Amendment’s own

origins. The Amendment was modeled on a parallel provi-

sion in the English Declaration of Rights of 1689, which

provided: “[E]xcessive Bail ought not to be required nor

excessive Fines imposed; nor cruel and unusual! Punish-

ments inflicted.” 1 W. & M., ch. 2, §10, in 3 Eng. Stat. at

Large 441 (1770); see also Trop, supra, at 100 (plurality

opinion). As of now, the United Kingdom has abolished

the death penalty in its entirety; but, decades before it

took this step, it recognized the disproportionate nature of

the juvenile death penalty; and it abolished that penalty

as a separate matter. In 1930 an official committee rec-

ommended that the minimum age for execution be raised

to 21. House of Commons Report from the Select Commit-

24 ROPER v. SIMMONS

Opinion of the Court

tee on Capital Punishment (1930), 193, p. 44. Parliament

then enacted the Children and Young Person’s Act of 1933,

23 Geo. 5, ch. 12, which prevented execution of those aged

18 at the date of the sentence. And in 1948, Parliament

enacted the Criminal Justice Act, 11 & 12 Geo. 6, ch. 58,

prohibiting the execution of any person under 18 at the

time of the offense. In the 56 years that have passed since

the United Kingdom abolished the juvenile death penalty,

the weight of authority against it there, and in the inter-

national community, has become well established.

It is proper that we acknowledge the overwhelming

weight of international opinion against the juvenile death

penalty, resting in large part on the understanding that

the instability and emotional imbalance of young people

may often be a factor in the crime. See Brief for Human

Rights Committee of the Bar of England and Wales

et al. as Amici Curiae 10-11. The opinion of the world

community, while not controlling our outcome, does pro-

vide respected and significant confirmation for our own

conclusions.

Over time, from one generation to the next, the Consti-

tution has come to earn the high respect and even, as

Madison dared to hope, the veneration of the American

people. See The Federalist No. 49, p. 314 (C. Rossiter ed.

1961). The document sets forth, and rests upon, innova-

tive principles original to the American experience, such

as federalism; a proven balance in political mechanisms

through separation of powers; specific guarantees for the

accused in criminal cases; and broad provisions to secure

individual freedom and preserve human dignity. These

doctrines and guarantees are central to the American

experience and remain essential to our present-day self-

definition and national identity. Not the least of the

reasons we honor the Constitution, then, is because we

know it to be our own. It does not lessen our fidelity to the

Constitution or our pride in its origins to acknowledge

Cite as: 543 U. 8. — (2005) 25

Opinion ot the Court

that the express affirmation of certain fundamental rights

by other nations and peoples simply underscores the

centrality of those same rights within our own heritage of

freedom.

* * *

The Eighth and Fourteenth Amendments forbid imposi-

tion of the death penalty on offenders who were under the

age of 18 when their crimes were committed. The judg-

ment of the Missouri Supreme Court setting aside the

sentence of death imposed upon Christopher Simmons is

affirmed.

It is so ordered.

26

ROPER v. SIMMONS

Appendix A to opinion of the Court

APPENDIX A TO OPINION OF THE COURT

I. STATES THAT PERMIT THE IMPOSITION OF THE

DEATH PENALTY ON JUVENILES

Alabama

Arizona

Arkansas

Delaware

Florida

Georgia

Idaho

Kentucky

Louisiana

Mississippi

Missouri

Nevada

New Hampshire

North Carolina

Oklahoma

Pennsylvania

South Carolina

Texas

Utah

Virgini

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

minimum age) *

Ariz. Rev. Stat. Ann. 5613-70300 (West Supp. 2004)

(same)

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

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

Fla. Stat. §985.225(1) (2003) (same)

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

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

Ky. Rev. Stat. Ann. §640.040(1) (Lexis 1999) (mini-

mum age of 16)

La. Stat. Ann. §14:30(c) (West Supp. 2004) (no

express minimum age)

Miss. Code Ann. §97—3—21 (Lexis 2000) (same)

Mo. Rev. Stat. Ann. §565.020 (1999) (minimum age

of 16)

Nev. Rev. Stat. §176.025 (2003) (minimum age of

16)

N. H. Rev. Stat. Ann. §630:1(V) (West 1996) (mini-

mum age of 17)

N. C. Gen. Stat. 614-17 (Lexis 2003) (minimum age

of 17, except that those under 17 who commit

murder while serving a prison sentence for a

previous murder may receive the death penalty)

Okla. Stat. Ann., Tit. 21, §701.10 (West 2002) (no

express minimum age)

18 Pa. Cons. Stat. §1102 (2002) (same)

S. C. Code Ann. §16-3-20 (West Supp. 2003 and

main ed.) (same)

Tex. Penal Code Ann. §8.07(c) (West 2003) (mini-

mum age of 17)

Utah Code Ann. §76~-3-206(1) (Lexis 2002) (no

express minimum age)

Va. Code Ann. §18.2-10(a) (Lexis Supp. 2003)

(minimum age of 16)

Cite as: 543 U. 8. (2005) 27

Appendix A to opinion of the Court

II. STATES THAT RETAIN THE DEATH PENALTY,

BUT SET THE MINIMUM AGE AT 18

California Cal. Penal Code Ann. §190.5 (West 1999)

Colorado Colo. Rev. Stat. §18—1.4—102(1)(a) (Lexis 2004)

Connecticut Conn. Gen. Stat. Ann. §53a—46a(h) (West 2001)

Illinois Ill. Comp. Stat. Ann., ch. 720, §5/9-1(b) (West

Supp. 2004)

Indiana Ind. Code Ann. §35—50—2-—3 (1993)

Kansas Kan. Stat. Ann. §21—4622 (1995)

Maryland Md. Crim. Law Code Ann. 62-2020 ) 0 (Lexis 2002)

Montana Mont. Code Ann. §45—5—102 (2003)

Nebraska Neb. Rev. Stat. §28-105.01(1) (1995)

New Jersey N. J. Stat. Ann. §2C:11-—3(g) (West Supp. 2003)

New Mexico N. M. Stat. Ann. §31—18—14(A) (West Supp. 2000)

New York N. Y. Penal Law Ann. §125.27(West 2004)

Ohio Ohio Rev. Code Ann. §2929.02(A) (Lexis 2003)

Oregon Ore. Rev. Stat. §§161.620, 137.707(2) (1997)

South Dakota 2004 S. D. Laws ch. 166 to be codified in S. D.

Codified Laws §23A—27A-—42

Tennessee Tenn. Code Ann. §37—1—134(a)(1) (Lexis 1996)

Washington Minimum age of 18 established by judicial decision.

State v. Furman, 122 Wash. 2d 440, 858 P. 2d 1092

(1993)

Wyoming Wyo. Stat. §6-2-101(b) (Lexis 2003)

* * *

During the past year, decisions by the highest courts of Kansas and

New York invalidated provisions in those States’ death penalty stat-

utes. State v. Marsh. Kan. 102 P. 3d 445 (2004) (invalidating

provision that required imposition of the death penalty if aggravating

and mitigating circumstances were found to be in equal balance);

People v. LaValle, 3 N. V. 3d 88, 817 N. E. 2d 341 (2004) (invalidating

mandatory requirement to instruct the jury that, in the case of jury

deadlock as to the appropriate sentence in a capital case, the defendant

would receive a sentence of life imprisonment with parole eligibility

after serving a minimum of 20 to 25 years). Due to these decisions, it

would appear that in these States the death penalty remains on the

books, but that as a practical matter it might not be imposed on anyone

until there is a change of course in these decisions, or until the respec-

28 ROPER v. SIMMONS

Appendix A to opinion of the Court

tive state legislatures remedy the probiems the courts have identified.

Marsh, supra, at 102 p. 3d, at 452, 464; LaValle, supra, at 99,

817 N. E 2d, at 344.

III. STATES WITHOUT THE DEATH PENALTY

Alaska

Hawaii

lowa

Maine

Massachusetts

Michigan

Minnesota

North Dakota

Rhode Island

Vermont

West Virginia

Wisconsin

Cite as: 543 U. 8. (2005)

Appendix B to opinion of the Court

APPENDIX B TO OPINION OF THE COURT

STATE STATUTES ESTABLISHING A MINIMUM AGE

18

TO VOTE

STATUTE

Ala. Const., Amdt. No. 579

Alaska Const., Art. V, §1

Alaska Stat. §15—05—010 (Lexis 2002)

Ariz. Const., Art. VII, §2

Ariz. Rev. Stat. 5616-101 (West 1996)

Ark. Code Ann. §9—25—101 (Lexis 2002)

Cal. Const., Art. 2, §2

Colo. Rev. Stat. §1—-2—101 (Lexis 2004)

Conn. Const., Art. 6.61

Conn. Gen. Stat. 69-12 (2003)

Del. Code Ann., Tit. 15, §1701 (Michie 2002)

D. C. Code §1—1001.02(2)(B) (West Supp.

2004)

Fla. Stat. ch. 97.041 (2003)

Ga. Const., Art. 2, §1, 42

Ga. Code Ann. §21-—2-—216 (Lexis 2003)

Haw. Const., Art. II. §1

Haw. Rev. Stat. 511-12 (1995)

Idaho Code §34—402 (Michie 2001)

III. Const., Art. III. §1

III. Comp. Stat. Ann., ch. 10, §5/3—1

(West 2003)

Ind. Code Ann. §3—7-—13—1 (Lexis 1997)

Iowa Code 548A 5 (2003)

Kan. Const., Art. 5, §1

Ky. Const., §145

La. Const., Art. I, §10

La. Rev. Stat. Ann. §18:101 (West 2004)

Me. Const., Art. II. §1

Me. Rev. Stat. Ann. Tit. 21-4. §111

(West 1998 and Supp. 2004)

Md. Elec. Law Code Ann. 53-102 (Lexis

2002)

ROPER v. SIMMONS

Appendix B to opinion of the Court

18 Mass. Gen. Laus , ch. 51, §1 (West

Supp. 2004)

18 Mich. Comp. Laws Ann. §168.492 (West

1989)

18 Minn. Stat. §201.014(1)(a) (2002)

18 Miss. Const., Art. 12, 6241

18 Mo. Const., Art. VIII, §2

18 Mont. Const., Art. IV. §2

Mont. Code Ann. §13—1-—111 (2003)

18 Neb. Const., Art. VI, §1

Neb. Rev. Stat. 532-110 (2004)

18 Nev. Rev. Stat. §293.485 (2003)

18 N. H. Const. At., pt. 1, 11

18 N. J. Const., Art. II. §1, 93

18 Ino provision other than U.S. Const.

Amdt. XXVI]

18 N. V. Elec. Law Ann. 65-102 (West 1998)

18 N.C. Gen. Stat. Ann. §163-55 (Lexis

2003)

18 N. D. Const. Art. II. §1

18 Ohio Const., Art. V. §1

Ohio Rev. Code Ann. §3503.01 (Anderson

1996)

18 Okla. Const., Art. III. §1

18 Ore. Const., Art. II. §2

18 25 Pa. Cons. Stat. Ann. §2811 (1994)

18 R. IL. Gen. Laws §17-1-3 (Lexis 2003)

18 S. C. Code Ann. §7-5-610 (West Supp.

2003)

18 S. D. Const., Art. VII, §2

S. D Codified Laws Ann. §12-3-1

(Michie 1995)

18 Tenn. Code Ann. §2-2—102 (Lexis 2003)

18 Tex. Elec. Code Ann. §11.002 (West 2003)

18 Utah Const., Art. IV, 62

Utah Code Ann. §20A-2-101 (Lexis

2002)

18 Vt. Stat. Ann., Tit. 17, §2121 (Lexis 2002)

18 Va. Const. Art. II. 61

Cite as: 543 U. 8. (2005) 31

Appendix B to opinion of the Court

Washington 18 Wash. Const., Art. VI. §1

West Virginia 18 W. Va. Code §3-1-—3 (Lexis 2002)

Wisconsin 18 Wis. Const., Art. III. §1

Wis. Stat. §6.02 (West 2004)

Wyoming 18 Wyo. Stat. Ann. §§22-1-102, 22-3-102

(West 2004)

* *

The Twenty Sixth Amendment to the Constitution of the United States

provides that “[t}he right of citizens of the United States, who are

eighteen years of age or older, to vote shall not be denied or abridged by

the United States or by any State on account of age.”

ROPER vu. SIMMONS

Appendix C to opinion of the Court

APPENDIX C TO OPINION OF THE COURT

STATE STATUTES ESTABLISHING A MINIMUM AGE

FOR JURY SERVICE

AGE STATUTE

STATE

Alabama

Alaska

Arizona

Arkansas

California

19

18

18

18

18

18

18

18

18

18

18

18

18

18

18

18

18

18

18

Ala. Code §12—16—60(a)(1) (West 2002)

Alaska Stat. 509.20 O0 100) (Lexis

2002)

Ariz. Rev. Stat. §21—301(D) (West 2002)

Ark. Code Ann. §§16—31-101, 16—32—302

(Lexis 2003)

Cal. Civ. Proc. §203(a2) (West Supp.

2004)

Colo. Rev. Stat. §13-71-105(2)(a) (Lexis

2004)

Conn. Gen. Stat. Ann. §51-217(a) (West

Supp. 2004)

Del. Code Ann. Tit. 10, §4509(b)(2)

(Michie 1999)

D. C. Code §11-1906(b)(1)(C) (West 2001)

Fla. Stat. §40.01 (2003)

Ga. Code Ann. 6615-12-60, 15-12-163

(Lexis 2001)

Haw. Rev. Stat. §612—4(a)(1) (2003)

Idaho Code §2—209(2)(a) (Michie 2003)

Ill. Comp. Stat. Ann, ch. 705, §305/2

(West 2002)

Ind. Code Ann. §33—28—4—8 (Lexis 2004)

lowa Code §607A.4(1)(a) (2003)

Kan. Stat. Ann. 643-156 (2000) (jurors

must be qualified to be electors); Kan.

Const., Art. 5, §1 (person must be 18 to

be qualified elector)

Ky. Rev. Stat. Ann. §29A.080(2)(a) (Lexis

Supp. 2004)

La. Code Crim. Proc. Ann., Art. 401(A)(2)

(West 2003)

Me. Rev. Stat. Ann., Tit. 14, §1211 (West

1980)

Cite as: 543 U. 8. (2005) 33

Appendix C to opinion of the Court

18

18

18

18

21

21

18

19

18

18

18

18

18

18

18

18

18

18

18

18

18

18

Md. Cts. & Jud. Proc. Code Ann. 568-104

(Lexis 2002)

Mass. Gen. Laws. Ann., ch. 234, §1 (West

2000) Gurors must be qualified to vote),

ch. 51, §1 (West Supp. 2004) (person

must be 18 to vote)

Mich. Comp. Laws Ann. §600.1307a(1)(a)

(West Supp. 2004)

Minn. Dist. Ct. Rule 808(b)(2) (2002)

Miss. Code Ann. §13—5—1 (Lexis 2002)

Mo. Rev. Stat. §494.425(1) (2000)

Mont. Code Ann. §3—15—301 (2003)

Neb. Rev. Stat. 625-1601 (Supp. 2003)

Nev. Rev. Stat. §6.010 (2003) (juror must

be qualified elector); §293.485 (person

must be 18 to vote)

N. H. Rev. Stat. Ann. §500-A:7-a(I)

(Lexis Supp. 2004)

N. J. Stat. Ann. §2B:20—1(a) (West 2004

Pamphlet)

N. M. Stat. Ann. §38—5—1 (1998)

N. V. Jud. Law Ann. §510(2) (West 2003)

N. C. Gen. Stat. Ann. 59-3 (Lexis 2003)

N. D. Cent. Code 527-09. 1-080

(Supp. 2003)

Ohio Rev. Code Ann. §2313.42 (Anderson

2001)

Okla. Stat. Ann., Tit. 38, §28 (West Supp.

S. C. Code Ann. 517-130 (West Supp.

2003)

S.D. Codified Laws §16-13-10 (Lexis

Supp. 2003)

Tenn. Code Ann. §22—1-101 (Lexis Supp.

2003)

Tex. Govt. Code Ann. §62.102(1) (West

1998)

34

Utah

Vermont

Virginia

Washington

West Virginia

Wisconsin

Wyoming

ROPER v. SIMMONS

Appendix C to opinion of the Court

18 Utah Code Ann. §78~-46-7(1)(b) (Lexis

2002)

18 Vt. Stat. Ann,, Tit. 4, §962(a)(1) (Lexis

1999); Gurors must have attained age of

majority); Tit. 1, §173 (Lexis 2003) (age

of majority is 18)

18 Va. Code Ann. §8.01-337 (Lexis 2000)

18 Wash. Rev. Ann. Code §2.36.070 (West

2004)

18 W. Va. Code §52—1-—8(b)(1) (Lexis 2000)

18 Wis. Stat. §756.02 (West 2001)

18 Wyo. Stat. Ann. §1-11-101 (Lexis 2003)

(jurors must be adults); §14~1-101

(person becomes an adult at 18)

— — ——ů———

Cite as: 543 U. 8. (2005)

Appendix D to opinion of the Court

APPENDIX D TO OPINION OF THE COURT

STATE STATUTES ESTABLISHING A MINIMUM AGE

FOR MARRIAGE WITHOUT PARENTAL OR JUDICIAL

CONSENT

STATE AGE STATUTE

Alabama 18 Ala. Code §30—1—5 (West Supp. 2004)

Alaska 18 Alaska Stat. §§25.05.011, 25.05.171

(Lexis 2002)

Arizona 18 Ariz. Rev. Stat. Ann. §25-102 (West

Supp. 2004)

Arkansas 18 Ark. Code Ann. §§9-11-102, 9-11-208

(Lexis 2002)

California 18 Cal. Fam. Code Ann. §301 (West 2004)

Colorado 18 Colo. Rev. Stat. Ann. 5142-106 (Lexis

2004)

Connecticut 18 Conn. Gen. Stat. 646-30 (2003)

Delaware 18 Del. Code Ann., Tit. 13, §123 (Lexis

District of Columbia 18

Florida 18

Georgia 16

Hawaii 18

Idaho 18

Illinois 18

Indiana 18

lowa 18

Kansas 18

Kentucky 18

1999)

D. C. Code 546-411 (West 2001)

Fla. Stat. §§741.04, 741.0405 (2003)

Ga. Code Ann. §§19-3-2, 19-3-37 (Lexis

Haw. Rev. Stat. 6572-2 (1993)

Idaho Code 532-202 (Michie 1996)

Ill. Comp. Stat. Ann., ch. 750, §5/203

(West 1999)

Ind. Code Ann. 6631-11-14, 31-11-1-

5, 31-11-2-1, 31-11-2-3 (Lexis 1997)

lowa Code §595.2 (2003)

Kan. Stat. Ann. 5623-106 (Supp. 2003)

Ky. Rev. Stat. Ann. §§402.020, 402.210

(Lexis 1999) -

Louisiana

Maine

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oklahoma

ROPER v. SIMMONS

Appendix D to opinion of the Court

18

18

16

18

18

18

15/17

18

18

19

18

18

18

18

18

18

18

18

18

La. Children's Code Ann., Arts. 1545,

1547 (West 2004) (minors may not

marry without consent); La. Civ. Code

Ann., Art. 29 (West 1999) (age of major-

ity is 18)

Me. Rev. Stat. Ann., Tit. 19-A, §652

(West 1998 and Supp. 2004)

Md. Fam. Law Code Ann. 52-301 (Lexis

2004) (those under 18 must obtain

parental consent unless female applicant

can present proof of pregnancy or a

child, in which case minimum age to

marry without consent is 16)

Mass. Gen. Laws Ann., ch. 207, §§7, 24,

25 (West 1998)

Mich. Comp. Laws Ann. §551.103 (West

1988)

Minn. Stat. §517.02 (2002)

Miss. Code Ann. §93-1-5 (Lexis 2004)

(female applicants must be 15; male

applicants must be 17)

Mo. Rev. Stat. §451.090 (2000)

Mont. Code Ann. §§40—-1-—202, 40-1-213

(2003)

Neb. Rev. Stat. §42—105 (2004) (minors

must have parental consent to marry);

§43-2101 (defining minor as a person

under 19)

Nev. Rev. Stat. §122.020 (2003)

N. H. Rev. Stat. Ann. §457:5 (West 1992)

N. J. Stat. Ann. §37:1-6 (West 2002)

N. M. Stat. Ann. §40—1-6 (1999)

N. V. Dom. Rel. Law Ann. 515 (West

Supp. 2004)

N. C. Gen. Stat. Ann. 651-2 (Lexis 2003)

N. D. Cent. Code 5614-03-02 (Lexis 2004)

Ohio Rev. Code Ann. §3101.01 (Lexis

2003)

Okla. Stat. Ann., Tit. 43, §3 (West Supp.

2005)

Cite as: 543 U. 8. (2005) 37

Appendix D to opinion of the Court

Oregon 18 Ore. Rev. Stat. 6106. 060 (2003)

Pennsylvania 18 23 Pa. Cons. Stat. 561304 (1997)

Rhode Island 18 R. I. Gen. Laws 515-211 (Lexis Supp.

2004)

South Carolina 18 S. C. Code Ann. 520-1250 (West Supp.

2003)

South Dakota 18 S. D. Codified Laws §25-1-9 (Lexis

1999)

Tennessee 18 Tenn. Code Ann. 636-3106 (Lexis 1996)

Texas 18 Tex. Fam. Code Ann. §§2.101-2.103

(West 1998)

Utah 18 Utah Code Ann. §30—-1-9 (Lexis Supp.

2004)

Vermont 18 Vt. Stat. Ann., Tit. 18, §5142 (Lexis

2000)

Virginia 18 Va. Code Ann. §§20—45.1, 20-48, 20-49

(Lexis 2004)

Washington 18 Wash. Rev. Code Ann. §26.04.210 (West

Supp. 2005)

West Virginia 18 W. Va. Cede 948-2-301 (Lexis 2004)

Wisconsin 18 Wis. Stat. §765.02 (1999-2000)

Wyoming 18 Wyo. Stat. Ann. 5201-102 (Lexis 2003)

Cite as: 543 U. 8S. (2005) 1

STEVENS, J., concurring

SUPREME COURT OF THE UNITED STATES

No. 03-633

DONALD P. ROPER, SUPERINTENDENT, POTOSI

CORRECTIONAL CENTER, PETITIONER v.

CHRISTOPHER SIMMONS

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

MISSOURI

[March 1, 2005]

JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,

concurring.

Perhaps even more important than our specific holding

today is our reaffirmation of the basic principle that in-

forms the Court’s interpretation of the Eighth Amend-

ment. If the meaning of that Amendment had been frozen

when it was originally drafted, it would impose no im-

pediment to the execution of 7-year-old children today.

See Stanford v. Kentucky, 492 U.S. 361, 368 (1989) (de-

scribing the common law at the time of the Amendment’s

adoption). The evolving standards of decency that have

driven our construction of this critically important part of

the Bill of Rights foreclose any such reading of the

Amendment. In the best tradition of the common law, the

pace of that evolution is a matter for continuing debate;

but that our understanding of the Constitution does

change from time to time has been settled since John

Marshall breathed life into its text. If great lawyers of his

day—Alexander Hamilton, for example—were sitting

with us today, I would expect them to join JUSTICE

KENNEDY’s opinion for the Court. In all events, I do so

without hesitation.

Cite as: 543 U. S. (2008) 1

O'Connor, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 03-633

DONALD P. ROPER, SUPERINTENDENT, POTOSI

CORRECTIONAL CENTER, PETITIONER v.

CHRISTOPHER SIMMONS

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

MISSOURI

[March 1, 2005]

JUSTICE O'CONNOR, dissenting.

The Court's decision today establishes a categorical rule

forbidding the execution of any offender for any crime

committed before his 18th birthday, no matter how delib-

erate, wanton, or cruel the offense. Neither the objective

evidence of contemporary societal values, nor the Court’s

moral proportionality analysis, nor the two in tandem

suffice to justify this ruling.

Although the Court finds support for its decision in the

fact that a majority of the States now disallow capital

punishment of 17-year-old offenders, it refrains from

asserting that its holding is compelled by a genuine na-

tional consensus. Indeed, the evidence before us fails to

demonstrate conclusively that any such consensus has

emerged in the brief period since we upheld the constitu-

tionality of this practice in Stanford v. Kentucky, 492 U. S.

361 (1989).

Instead, the rule decreed by the Court rests, ultimately,

on its independent moral judgment that death is a dispro-

portionately severe punishment for any 17-year-old of-

fender. I do not subscribe to this judgment. Adolescents

as a class are undoubtedly less mature, and therefore less

culpable for their misconduct, than adults. But the Court

has adduced no evidence impeaching the seemingly rea-

2 ROPER v. SIMMONS

O'Connor, J., dissenting

sonable conclusion reached by many state legislatures:

that at least some 17-year-old murderers are sufficiently

mature to deserve the death penalty in an appropriate

case. Nor has it been shown that capital sentencing juries

are incapable of accurately assessing a youthful defen-

dant's maturity or of giving due weight to the mitigating

characteristics associated with youth.

On this record—and especially in light of the fact that so

little has changed since our recent decision in Stanford—I

would not substitute our judgment about the moral pro-

priety of capital punishment for 17-year-old murderers for

the judgments of the Nation’s legislatures. Rather, I

would demand a clearer showing that our society truly has

set its face against this practice before reading the Eighth

Amendment categorically to forbid it.

I

A

Let me begin by making clear that I agree with much of

the Court’s description of the general principles that guide

our Eighth Amendment jurisprudence. The Amendment

bars not only punishments that are inherently “‘bar-

baric, but also those that are “‘excessive’ in relation to

the crime committed.” Coker v. Georgia, 433 U. S. 584,

592 (1977) (plurality opinion). A sanction is therefore

beyond the state’s authority to inflict if it makes “no

measurable contribution” to acceptable penal goals or is

“grossly out of proportion to the severity of the crime.”

Ibid. The basic “precept of justice that punishment for

crime should be ... proportioned to [the] offense,” Weems

v. United States, 217 U.S. 349, 367 (1910), applies with

special force to the death penalty. In capital cases, the

Constitution demands that the punishment be tailored

both to the nature of the crime itself and to the defen-

dant’s “personal responsibility and moral guilt.” Enmund

v. Florida, 458 U.S. 782, 801 (1982); see also id., at 825

i,

Cite as: 543 U. 8. (2005) 3

O'CONNOR, J., dissenting

(O'CONNOR, J., dissenting); Tison v. Arizona, 481 U.S.

137, 149 (1987); Eddings v. Oklahoma, 455 U. S. 104, 111—

112 (1982).

It is by now beyond serious dispute that the Eighth

Amendment's prohibition of “cruel and unusual punish-

ments” is not a static command. Its mandate would be

little more than a dead letter today if it barred only those

sanctions—like the execution of children under the age of

seven—that civilized society had already repudiated in

1791. See ante, at 1 (STEVENS, J., concurring); cf. Stan-

ford, supra, at 368 (discussing the common law rule at the

time the Bill of Rights was adopted). Rather, because

“[t]he basic concept underlying the Eighth Amendment is

nothing less than the dignity of man,” the Amendment

“must draw its meaning from the evolving standards of

decency that mark the progress of a maturing society.”

Trop v. Dulles, 356 U.S. 86, 100-101 (1958) (plurality

opinion). In discerning those standards, we look to “objec-

tive factors to the maximum possible extent.” Coker,

supra, at 592 (plurality opinion). Laws enacted by the

Nation’s legislatures provide the “clearest and most reli-

able objective evidence of contemporary values.” Penry v.

Lynaugh, 492 U.S. 302, 331 (1989). And data reflecting

the actions of sentencing juries, where available, can also

afford “‘a significant and reliable objective index’” of socie-

tal mores. Coker, supra, at 596 (plurality opinion) (quot-

ing Gregg v. Georgia, 428 U. S. 153, 181 (1976)) Goint opin-

ion of Stewart, Powell, and STEVENS, JJ.).

Although objective evidence of this nature is entitled to

great weight, it does not end our inquiry. Rather, as the

Court today reaffirms, see ante, at 9, 20-21. “the Constitu-

tion contemplates that in the end our own judgment will

be brought to bear on the question of the acceptability of

the death penalty under the Eighth Amendment.” Coker,

supra, at 597 (plurality opinion). “[P]roportionality—at

least as regards capital punishment—not only requires an

4 ROPER v. SIMMONS

O Cox NOR. J., dissenting

inquiry into contemporary standards as expressed by

legislators and jurors, but also involves the notion that the

magnitude of the punishment imposed must be related to

the degree of the harm inflicted on the victim, as well as to

the degree of the defendant’s blameworthiness.” Enmund,

supra, at 815 (O'CONNOR, J., dissenting). We therefore

have a “constitutional obligation” to judge for ourselves

whether the death penalty is excessive punishment for a

particular offense or class of offenders. See Stanford, 492

U. S., at 382 (O’CONNOR, q., concurring in part and con-

curring in judgment); see also Enmund, supra, at 797 (It

is for us ultimately to judge whether the Eighth Amend-

ment permits imposition of the death penalty”).

B

Twice in the last two decades, the Court has applied

these principles in deciding whether the Eighth Amend-

ment permits capital punishment of adolescent offenders.

In Thompson v. Oklahoma, 487 U. S. 815 (1988), a plural-

ity of four Justices concluded that the Eighth Amendment

barred capital punishment of an offender for a crime

committed before the age of 16. I concurred in that judg-

ment on narrower grounds. At the time, 32 state legisla-

tures had “definitely concluded that no 15-year-old should

be exposed to the threat of execution,” and no legislature

had affirmatively endorsed such a practice. Id., at 849

(O’CONNOR, J., concurring in judgment). While acknowl-

edging that a national consensus forbidding the execution

of 15-year-old offenders “very likely” did exist, I declined

to adopt that conclusion as a matter of constitutional law

without clearer evidentiary support. bid. Nor, in my

view, could the issue be decided based on moral propor-

tionality arguments of the type advanced by the Court

today. Granting the premise “that adolescents are gener-

ally less blameworthy than adults who commit similar

crimes,” I wrote, “it does not necessarily follow that all 15-

Cite as: 543 U. 8. (2005) 5

O'CONNOR, J., dissenting

year-olds are incapable of the moral culpability that would

justify the imposition of capital punishment.” Id., at 853.

Similarly, we had before us no evidence “that 15-year-olds

as a class are inherently incapable of being deterred from

major crimes by the prospect of the death penalty.” Ibid.

I determined instead that, in light of the strong but incon-

clusive evidence of a national consensus against capital

punishment of under-16 offenders, concerns rooted in the

Eighth Amendment required that we apply a clear state-

ment rule. Because the capital punishment statute in

Thompson did not specify the minimum age at which

commission of a capital crime would be punishable by

death, I concluded that the statute could not be read to

authorize the death penalty for a 15-year-old offender. Id.,

at 857-858.

The next year, in Stanford v. Kentucky, supra, the Court

held that the execution of 16- or 17-year-old capital mur-

derers did not violate the Eighth Amendment. I again

wrote separately, concurring in part and concurring in the

judgment. At that time, 25 States did not permit the

execution of under-18 offenders, including 13 that lacked

the death penalty altogether. See id., at 370. While not-

ing that “(t]he day may come when there is such general

legislative rejection of the execution of 16- or 17-year-old

capital murderers that a clear national consensus can be

said to have developed,” I concluded that that day had not

yet arrived. Id., at 381-382 (opinion concurring in part

and concurring in judgment). I reaffirmed my view that,

beyond assessing the actions of legislatures and juries, the

Court has a constitutional obligation to judge for itself

whether capital punishment is a proportionate response to

the defendant’s blameworthiness. Id., at 382. Neverthe-

less, I concluded that proportionality arguments similar to

those endorsed by the Court today did not justify a cate-

gorical Eighth Amendment rule against capital punish-

ment of 16- and 17-year-old offenders. See ibid. (citing

6 ROPER v. SIMMONS

' O'Connor, I., dissenting

Thompson, supra, at 853-854 (O'CONNOR, q., concurring

in judgment)).

The Court has also twice addressed the constitutionality

of capital punishment of mentally retarded offenders. In

Penry v. Lynaugh, 492 U.S. 302 (1989), decided the same

year as Stanford, we rejected the claim that the Eighth

Amendment barred the execution of the mentally re-

tarded. At that time, only two States specifically prohib-

ited the practice, while 14 others did not have capital

punishment at all. 492 U.S., at 334. Much had changed

when we revisited the question three Terms ago in Atkins

v. Virginia, 536 U.S. 304 (2002). In Atkins, the Court

reversed Penry and held that the Eighth Amendment

forbids capital punishment of mentally retarded offenders.

536 U.S., at 321. In the 13 years between Penry and

Atkins, there had been a wave of legislation prohibiting

the execution of such offenders. By the time we heard

Atkins, 30 States barred the death penalty for the men-

tally retarded, and even among those States theoretically

permitting such punishment, very few had executed a

mentally retarded offender in recent history. 536 U. S., at

314316. On the basis of this evidence, the Court deter-

mined that it was “fair to say that a national consensus

hald] developed against” the practice. Id., at 316.

But our decision in Atkins did not rest solely on this

tentative conclusion. Rather, the Court’s independent

moral judgment was dispositive. The Court observed that

mentally retarded persons suffer from major cognitive and

behavioral! deficits, i.e., “subaverage intellectual function-

ing” and “significant limitations in adaptive skills such as

communication, self-care, and self-direction that became

manifest before age 18.” Id., at 318. “Because of their

impairments, [such persons] by definition . have dimin-

ished capacities to understand and process information, to

communicate, to abstract from mistakes and learn from

experience, to engage in logical reasoning, to control im-

Cite as: 543 U. 8. (2005) 7

O'Connor, J., dissenting

pulses, and to understand the reactions of others.” Ibid.

We concluded that these deficits called into serious doubt

whether the execution of mentally retarded offenders

would measurably contribute to the principal penological

goals that capital punishment is intended to serve—

retribution and deterrence. Id., at 319-321. Mentally

retarded offenders’ impairments so diminish their per-

sonal moral culpability that it is highly unlikely that such

offenders could ever deserve the ultimate punishment,

even in cases of capital murder. Id., at 319. And these

same impairments made it very improbable that the

threat of the death penalty would deter mentally retarded

persons from committing capital crimes. Id., at 319-320.

Having concluded that capital punishment of the mentally

retarded is inconsistent with the Eighth Amendment, the

Court “‘le[ft] to the State[s] the task of developing appro-

priate ways to enforce the constitutional restriction upon

[their] execution of sentences. Id., at 317 (quoting Ford

v. Wainwright, 477 U. S. 399, 416-417 (1986)).

II

A

Although the general principles that guide our Eighth

Amendment jurisprudence afford some common ground, I

part ways with the Court in applying them to the case

before us. As a preliminary matter, I take issue with the

Court’s failure to reprove, or even to acknowledge, the

Supreme Court of Missouri’s unabashed refusal to follow

our controlling decision in Stanford. The lower court

concluded that, despite Stanford's clear holding and his-

torical recency, our decision was no longer binding author-

ity because it was premised on what the court deemed an

obsolete assessment of contemporary values. Quite apart

from the merits of the constitutional question, this was

clear error.

Because the Eighth Amendment “draw{s] its meaning

8 ROPER v. SIMMONS

O CoN NOR. J., dissenting

from ... evolving standards of decency,” Trop, 356 U. S.,

at 101 (plurality opinion), significant changes in societal

mores over time may require us to reevaluate a prior

decision. Nevertheless, it remains “this Court’s preroga-

tive alone to overrule one of its precedents.” State Oil Co.

v. Khan, 522 U.S. 3, 20 (1997) (emphasis added). That is

so even where subsequent decisions or factual develop-

ments may appear to have “significantly undermined” the

rationale for our earlier holding. United States v. Hatter,

532 U. S. 557, 567 (2001); see also State Oil Co., supra, at

20; Rodriguez de Quijas v. Shearson/American Express,

Inc., 490 U. S. 477, 484 (1989). The Eighth Amendment

provides no exception to this rule. On the contrary, clear,

predictable, and uniform constitutional standards are

especially desirable in this sphere. By affirming the lower

court’s judgment without so much as a slap on the hand,

today’s decision threatens to invite frequent and disrup-

tive reassessments of our Eighth Amendment precedents.

B

In determining whether the juvenile death penalty

comports with contemporary standards of decency, our

inquiry begins with the “clearest and most reliable objec-

tive evidence of contemporary values”—the actions of the

Nation's legislatures. Penry, supra, at 331. As the Court

emphasizes, the overall number of jurisdictions that cur-

rently disallow the execution of under-18 offenders is the

same as the number that forbade the execution of men-

tally retarded offenders when Atkins was decided. Ante,

at 10. At present, 12 States and the District of Columbia

do not have the death penalty, while an additional 18

States and the Federal Government authorize capital

punishment but prohibit the execution of under-18 offend-

ers. See ante, at 27-28 (Appendix A). And here, as in

Atkins, only a very small fraction of the States that permit

capital punishment of offenders within the relevant class

Cite as: 543 U. 8. (2005) 9

O'Connor, J., dissenting

has actually carried out such an execution in recent his-

tory: Six States have executed under-18 offenders in the

16 years since Stanford, while five States had executed

mentaliy retarded offenders in the 13 years prior to

Atkins. See Atkins, 536 U.S., at 316; V. Streib, The

Juvenile Death Penalty Today: Death Sentences and

Executions for Juvenile Crimes, January 1, 1973—

September 30, 2004, No. 75, pp. 15-23 (2004), available

at http://www.law.onu.edw/faculty/streib/documents/Juv

DeathSept302004.pdf (last updated Oct. 5, 2004) (as vis-

ited Feb. 23, 2005, and available in the Clerk of the

Court’s case file) (hereinafter Streib). In these respects,

the objective evidence in this case is, indeed, “similar, and

in some respects parallel to” the evidence upon which we

relied in Atkins. Ante, at 10.

While the similarities between the two cases are unde-

niable, the objective evidence of national consensus is

marginally weaker here. Most importantly, in Atkins

there was significant evidence of opposition to the execu-

tion of the mentally retarded, but there was virtually no

countervailing evidence of affirmative legislative support

for this practice. Cf. Thompson, 487 U.S., at 849

(O’CONNOR, J., concurring in judgment) (attributing sig-

nificance to the fact that “no legislature in this country

has affirmatively and unequivocally endorsed” capital

punishment of 15-year-old offenders). The States that

permitted such executions did so only because they had

not enacted any prohibitory legislation. Here, by contrast,

at least eight States have current statutes that specifically

set 16 or 17 as the minimum age at which commission of a

capital crime can expose the offender to the death penalty.

See ante, at 26 (Appendix A).* Five of these eight States

*In 12 other States that have capital punishment, under-18 offenders

can be subject to the death penalty as a result of transfer statutes that

permit such offenders to be tried as adults for certain serious crimes.

10 ROPER v. SIMMONS

O'CONNOR, J., dissenting

presently have one or more juvenile offenders on death

row (six if respondent is included in the count), see Streib

24-31, and four of them have executed at least one under-

18 offender in the past 15 years, see id., at 15-23. In all,

there are currently over 70 juvenile offenders on death

row in 12 different States (13 including respondent). See

id., at 24-31. This evidence suggests some measure of

continuing public support for the availability of the death

penalty for 17-year-old capital murderers.

Moreover, the Court in Atkins made clear that it was

“not so much the number of [States forbidding execution of

the mentally retarded] that [was] significant, but the

consistency of the direction of change.” 536 U.S., at 315.

In contrast to the trend in Atkins, the States have not

moved uniformly towards abolishing the juvenile death

penalty. Instead, since our decision in Stanford, two

States have expressly reaffirmed their support for this

practice by enacting statutes setting 16 as the minimum

age for capital punishment. See Mo. Rev. Stat. §565.020.2

(2000); Va. Code Ann. §18.2—10(a) (Lexis 2004). Further-

more, as the Court emphasized in Atkins itself, 536 U. S.,

at 315, n. 18, the pace of legislative action in this context

has been considerably slower than it was with regard to

capital punishment of the mentally retarded. In the 13

years between our decisions in Penry and Atkins, no fewer

than 16 States banned the execution of mentally retarded

offenders. See Atkins, supra, at 314-315. By comparison,

See ante, at 26 (Appendix A). As I observed in Thompson v. Oklahoma,

487 U. S. 815, 850-852 (1988) (opinion concurring in judgment): “There

are many reasons, having nothing whatsoever to do with capital pun-

ishment, that might motivate a legislature to provide as a general

matter for some [minors] to be channeled into the adult criminal justice

process.” Accordingly, while these 12 States clearly cannot be counted

as opposing capital punishment of under-18 offenders, the fact that

they permit such punishment through this indirect mechanism does not

necessarily show affirmative and unequivocal legislative support for the

Cite as: 543 U.S. __ (2005) 11

O Cox NOR, J., dissenting

since our decision 16 years ago in Stanford, only four

States that previously permitted the execution of under-18

offenders, plus the Federal Government, have legistla-

tively reversed course, and one additional State’s high

court has construed the State’s death penalty statute not

to apply to under-18 offenders, see State v. Furman, 122

Wash. 2d 440, 458, 858 P. 2d 1092, 1103 (1993) (en banc).

The slower pace of change is no doubt partially attribut-

able, as the Court says, to the fact that 11 States had

already imposed a minimum age of 18 when Stanford was

decided. See ante, at 12-13. Nevertheless, the extraordi-

nary wave of legislative action leading up to our decision

in Atkins provided strong evidence that the country truly

had set itself against capital punishment of the mentally

retarded. Here, by contrast, the halting pace of change

gives reason for pause.

To the extent that the objective evidence supporting

today’s decision is similar to that in Atkins, this merely

highlights the fact that such evidence is not dispositive in

either of the two cases. After all, as the Court today con-

firms, ante, at 9, 20-21, the Constitution requires that in

the end our own judgment ... be brought to bear in

deciding whether the Eighth Amendment forbids a par-

ticular punishment. Atkins, supra, at 312 (quoting Coker,

433 U. S., at 597 (plurality opinion)). This judgment is not

merely a rubber stamp on the tally of legislative and jury

actions. Rather, it is an integral part of the Eighth

Amendment inquiry—and one that is entitled to inde-

pendent weight in reaching our ultimate decision.

Here, as in Atkins, the objective evidence of a national

consensus is weaker than in most prior cases in which the

Court has struck down a particular punishment under the

Eighth Amendment. See Coker, supra, at 595-596 (plural-

ity opinion) (striking down death penalty for rape of an

adult woman, where only one jurisdiction authorized such

punishment); Enmund, 458 U.S., at 792 (striking down

12 ROPER v. SIMMONS

O'CONNOR, J., dissenting

death penalty for certain crimes of aiding and abetting

felony-murder, where only eight jurisdictions authorized

such punishment); Ford v. Wainwright, 477 U. S., at 408

(striking down capital punishment of the insane, where no

jurisdiction permitted this practice). In my view, the

objective evidence of national consensus, standing alone,

was insufficient to dictate the Court’s holding in Atkins.

Rather, the compelling moral proportionality argument

against capital punishment of mentally retarded offenders

played a decisive role in persuading the Court that the

practice was inconsistent with the Eighth Amendment.

Indeed, the force of the proportionality argument in Atkins

significantly bolstered the Court’s confidence that the

objective evidence in that case did, in fact, herald the

emergence of a genuine national consensus. Here, by

contrast, the proportionality argument against the juve-

nile death penalty is so flawed that it can be given little, if

any, analytical weight—it proves too weak to resolve the

lingering ambiguities in the objective evidence of legisla-

tive consensus or to justify the Court’s categorical rule.

C

Seventeen-year-old murderers must be categorically

exempted from capital punishment, the Court says, be-

cause they “cannot with reliability be classified among the

worst offenders.” Ante, at 15. That conclusion is premised

on three perceived differences between “adults,” who have

already reached their 18th birthdays, and “juveniles,” who

have not. See ante, at 15-16. First, juveniles lack matur-

ity and responsibility and are more reckless than adults.

Second, juveniles are more vulnerable to outside influ-

ences because they have less control over their surround-

ings. And third, a juvenile’s character is not as fully

formed as that of an adult. Based on these characteristics,

the Court determines that 17-year-old capital murderers

are not as blameworthy as adults guilty of similar crimes;

——rr

Cite as: 543 U. 8. (2005) 13

O Cox NOR, J., dissenting

that 17- year- olds are less likely than adults to be deterred

by the prospect of a death sentence; and that it is difficult

to conclude that a 17-year-old who commits even the most

heinous of crimes is “irretrievably depraved.” Ante, at 16—

18. The Court suggests that “a rare case might arise in

which a juvenile offender has sufficient psychological

maturity, and at the same time demonstrates sufficient

depravity, to merit a sentence of death.” Ante, at 18.

However, the Court argues that a categorical age-based

prohibition is justified as a prophylactic rule because

“(t]he differences between juvenile and adult offenders are

too marked and well understood to risk allowing a youth-

ful person to receive the death penalty despite insufficient

culpability.” Ante, at 19.

It is beyond cavil that juveniles as a class are generally

less mature, less responsible, and less fully formed than

adults, and that these differences bear on juveniles’ com-

parative moral culpability. See, e.g., Johnson v. Texas,

509 U.S. 350, 367 (1993) (“There is no dispute that a

defendant’s youth is a relevant mitigating circumstance”);

id., at 376 (O'CONNOR, J., dissenting) (“[T]he vicissitudes

of youth bear directly on the young offender’s culpability

and responsibility for the crime”); Eddings, 455 U.S., at

115-116 (“Our history is replete with laws and judicial

recognition that minors, especially in their earlier years,

generally are less mature and responsible than adults”).

But even accepting this premise, the Court's proportional-

ity argument fails to support its categorical rule.

First, the Court adduces no evidence whatsoever in

support of its sweeping conclusion, see ante, at 18, that it

is only in “rare” cases, if ever, that 17-year-old murderers

are sufficiently mature and act with sufficient depravity to

warrant the death penalty. The fact that juveniles are

generally less culpable for their misconduct than adults

does not necessarily mean that a 17-year-old murderer

cannot be sufficiently culpable to merit the death penalty.

14 ROPER v. SIMMONS

O'CONNOR, J., dissenting

At most, the Court’s argument suggests that the average

17-year-old murderer is not as culpable as the average

adult murderer. But an especially depraved juvenile

offender may nevertheless be just as culpable as many

adult offenders considered bad enough to deserve the

death penalty. Similarly, the fact that the availability of

the death penalty may be less likely to deter a juvenile

from committing a capital crime does not imply that this

threat cannot effectively deter some 17-year-olds from such

an act. Surely there is an age below which no offender, no

matter what his crime, can be deemed to have the cogni-

tive or emotional maturity necessary to warrant the death

penalty. But at least at the margins between adolescence

and adulthood—and especially for 17-year-olds such as

respondent—the relevant differences between “adults” and

“juveniles” appear to be a matter of degree, rather than of

kind. It follows that a legislature may reasonably con-

clude that at least some 17-year-olds can act with suffi-

cient moral culpability, and can be sufficiently deterred by

the threat of execution, that capital punishment may be

warranted in an appropriate case.

Indeed, this appears to be just such a case. Christopher

Simmons’ murder of Shirley Crook was premeditated,

wanton, and cruel in the extreme. Well before he commit-

ted this crime, Simmons declared that he wanted to kill

someone. On severa! occasions, he discussed with two

friends (ages 15 and 16) his plan to burglarize a house and

to murder the victim by tying the victim up and pushing

him from a bridge. Simmons said they could “‘get away

with it because they were minors. Brief for Petitioners 3.

In accord with this plan, Simmons and his 15-year-old

accomplice broke into Mrs. Crook’s home in the middle of

the night, forced her from her bed, bound her, and drove

her to a state park. There, they walked her to a railroad

trestle spanning a river, “hog-tied” her with electrical

cable, bound her face completely with duct tape, and

Cite as: 543 U. 8. (2005) 15

O'Connor, J., dissenting

pushed her, still alive, from the trestle. She drowned in

the water below. Id., at 4. One can scarcely imagine the

terror that this woman must have suffered throughout the

ordeal leading to her death. Whatever can be said about

the comparative moral culpability of 17-year-olds as a

general matter, Simmons’ actions unquestionably reflect

“‘a consciousness materially more “depraved” than that

of... the average murderer.” See Atkins, 536 U.S., at

319 (quoting Godfrey v. Georgia, 446 U.S. 420, 433

(1980)). And Simmons’ prediction that he could murder

with impunity because he had not yet turned 18—thovzth

inaccurate—suggests that he did take into account the

perceived risk of punishment in deciding whether to com-

mit the crime. Based on this evidence, the sentencing jury

certainly had reasonable grounds for concluding that,

despite Simmons’ youth, he “ha[d] sufficient psychological

maturity” when he committed this horrific murder, and

“at the same time demonstrate[d] sufficient depravity, to

merit a sentence of death.” See ante, at 18.

The Court’s proportionality argument suffers from a

second and closely related defect: It fails to establish that

the differences in maturity between 17-year-olds and

young “adults” are both universal enough and significant

enough to justify a bright-line prophylactic rule against

capital punishment of the former. The Court’s analysis is

premised on differences in the aggregate between juveniles

and adults, which frequently do not hold true when com-

paring individuals. Although it may be that many 17-

year-old murderers lack sufficient maturity to deserve the

death penalty, some juvenile murderers may be quite

mature. Chronological age is not an unfailing measure of

psychological development, and common experience sug-

gests that many 17-year-olds are more mature than the

average young adult.“ In short, the class of offenders

exempted from capital punishment by today’s decision is

too broad and too diverse to warrant a categorical prohibi-

16 ROPER v. SIMMONS

O Cox NR, J., dissenting

tion. Indeed, the age-based line drawn by the Court is

indefensibly arbitrary—it quite likely will protect a num-

ber of offenders who are mature enough to deserve the

death penalty and may well leave vulnerable many who

are not.

For purposes of proportionality analysis, 17-year-olds as

a class are qualitatively and materially different from the

mentally retarded. “Mentally retarded” offenders, as we

understood that category in Atkins, are defined by pre-

cisely the characteristics which render death an excessive

punishment. A mentally retarded person is, “by defini-

tion,” one whose cognitive and behavioral capacities have

been proven to fall below a certain minimum. See Atkins,

536 U. S., at 318; see also id., at 308, n. 3 (discussing

characteristics of mental retardation); id., at 317, and n.

22 (leaving to the States the development of mechanisms

to determine which offenders fall within the class exempt

from capital punishment). Accordingly, for purposes of

our decision in Atkins, the mentally retarded are not

merely less blameworthy for their misconduct or less likely

to be deterred by the death penalty than others. Rather, a

mentally retarded offender is one whose demonstrated

impairments make it so highly unlikely that he is culpable

enough to deserve the death penalty or that he could have

been deterred by the threat of death, that execution is not

a defensible punishment. There is no such inherent or

accurate fit between an offender’s chronological age and

the personal limitations which the Court believes make

capital punishment excessive for 17-year-old murderers.

Moreover, it defies common sense to suggest that 17-year-

olds as a class are somehow equivalent to mentally re-

tarded persons with regard to culpability or susceptibility

to deterrence. Seventeen-year-olds may, on average, be

less mature than adults, but that lesser maturity simply

cannot be equated with the major, lifelong impairments

suffered by the mentally retarded.

Cite as: 543 U. 8. (2005) 17

O'CONNOR, J., dissenting

The proportionality issues raised by the Court clearly *

implicate Eighth Amendment concerns. But these con-

cerns may properly be addressed not by means of an arbi-

trary, categorical age-based rule, but rather through

individualized sentencing in which juries are required to

give appropriate mitigating weight to the defendant’s

immaturity, his susceptibility to outside pressures, his

cognizance of the consequences of his actions, and so forth.

In that way the constitutional response can be tailored to

the specific problem it is meant to remedy. The Eighth

Amendment guards against the execution of those who are

“insufficiently culpable,” see ante, at 19, in significant

part, by requiring sentencing that “reflect[s] a reasoned

moral response to the defendant’s background, character,

and crime.” California v. Brown, 479 U. S. 538, 545 (1987)

(O’CONNOR, J., concurring). Accordingly, the sentencer in

a capital case must be permitted to give full effect to all

constitutionally relevant mitigating evidence. See Ten-

nard v. Dretke, 542 U. 8. (2004) (slip op., at 9-10);

Lockett v. Ohio, 438 U. S. 586, 604 (1978) (plurality opin-

ion). A defendant’s youth or immaturity is, of course, a

paradigmatic example of such evidence. See Eddings, 455

U. S., at 115-116.

Although the prosecutor's apparent attempt to use

respondent’s youth as an aggravating circumstance in this

case is troubling, that conduct was never challenged with

specificity in the lower courts and is not directly at issue

here. As the Court itself suggests, such “overreaching”

would best be addressed, if at all, through a more nar-

rowly tailored remedy. See ante, at 19. The Court argues

that sentencing juries cannot accurately evaluate a youth-

ful offender’s maturity or give appropriate weight to the

mitigating characteristics related to youth. But, again,

the Court presents no real evidence—and the record ap-

pears to contain none—supporting this claim. Perhaps

more importantly, the Court fails to explain why this duty

18 ROPER v. SIMMONS

O'Connor, J., dissenting

should be so different from, or so much more difficult than,

that of assessing and giving proper effect to any other

qualitative capital sentencing factor. I would not be so

quick to conclude that the constitutional safeguards, the

sentencing juries, and the trial judges upon which we

place so much reliance in all capital cases are inadequate

in this narrow context.

D

I turn, finally, to the Court’s discussion of foreign and

international law. Without question, there has been a

global trend in recent years towards abolishing capital

punishment for under-18 offenders. Very few, if any,

countries other than the United States now permit this

practice in law or in fact. See ante, at 22-23. While ac-

knowledging that the actions and views of other countries

do not dictate the outcome of our Eighth Amendment

inquiry, the Court asserts that “the overwhelming weight

of international opinion against the juvenile death penalty

does provide respected and significant confirmation for

[its] own conclusions.” Ante, at 24. Because I do not be-

lieve that a genuine national consensus against the juve-

nile death penalty has yet developed, and because I do not

believe the Court’s moral proportionality argument justi-

fies a categorical, age-based constitutional rule, I can

assign no such confirmatory role to the international

consensus described by the Court. In short, the evidence

of an international consensus does not alter my determi-

nation that the Eighth Amendment does not, at this time,

forbid capital punishment of 17-year-old murderers in all

cases.

Nevertheless, I disagree with JUSTICE SCALIA’s conten-

tion, post, at 15-22 (dissenting opinion), that foreign and

international law have no place in our Eighth Amendment

jurisprudence. Over the course of nearly half a century,

the Court has consistently referred to foreign and interna-

Cite as: 543 U.S.__ (2005) 19

O'CONNOR, J., dissenting

tional law as relevant to its assessment of evolving stan-

dards of decency. See Atkins, 536 U.S., at 317, n. 21;

Thompson, 487 U. S., at 830-831, and n. 31 (plurality

opinion); Enmund, 458 U. S., at 796-797, n. 22; Coker, 433

U. S., at 596, n. 10 (plurality opinion); Trop, 356 U. S., at

102-103 (plurality opinion). This inquiry reflects the

special character of the Eighth Amendment, which, as the

Court has long held, draws its meaning directly from the

maturing values of civilized society. Obviously, American

law is distinctive in many respects, not least where the

specific provisions of our Constitution and the history of

its exposition so dictate. Cf. post, at 18-19 (SCALIA, J.,

dissenting) (discussing distinctively American rules of law

related to the Fourth Amendment and the Establishment

Clause). But this Nation’s evolving understanding of

human dignity certainly is neither wholly isolated from,

nor inherently at odds with, the values prevailing in other

countries. On the contrary, we should not be surprised to

find congruence between domestic and international val-

ues, especially where the international community has

reached clear agreement—expressed in international law

or in the domestic laws of individual countries—that a

particular form of punishment is inconsistent with funda-

mental human rights. At least, the existence of an inter-

national consensus of this nature can serve to confirm the

reasonableness of a consonant and genuine American

consensus. The instant case presents no such domestic

consensus, however, and the recent emergence of an oth-

erwise global consensus does not alter that basic fact.

* * *

In determining whether the Eighth Amendment permits

capital punishment of a particular offense or class of

offenders, we must look to whether such punishment is

consistent with contemporary standards of decency. We

are obligated to weigh both the objective evidence of socie-

20 ROPER v. SIMMONS

O Cox NOR. J., dissenting

tal values and our own judgment as to whether death is an

excessive sanction in the context at hand. In the instant

case, the objective evidence is inconclusive; standing

alone, it does not demonstrate that our society has repudi-

ated capital punishment of 17-year-old offenders in all

cases. Rather, the actions of the Nation’s legislatures

suggest that, although a clear and durable national

consensus against this practice may in time emerge, that

day has yet to arrive. By acting s» soon after our decision

in Stanford, the Court both pre-empts the democratic

debate through which genuine consensus might develop

and simultaneously runs a considerable risk of inviting

lower court reassessments of our Eighth Amendment

precedents.

To be sure, the objective evidence supporting today’s

decision is similar to (though marginally weaker than) the

evidence before the Court in Atkins. But Atkins could not

have been decided as it was based solely on such evidence.

Rather, the compelling proportionality argument against

capital punishment of the mentally retarded played a

decisive role in the Court’s Eighth Amendment ruling.

Moreover, the constitutional rule adopted in Atkins was

tailored to this proportionality argument: It exempted

from capital punishment a defined group of offenders

whose proven impairments rendered it highly unlikely,

and perhaps impossible, that they could act with the

degree of culpability necessary to deserve death. And

Atkins left to the States the development of mechanisms to

determine which individual offenders fell within this class.

In the instant case, by contrast, the moral proportional-

ity arguments against the juvenile death penalty fail to

support the rule the Court adopts today. There is no

question that “the chronological age of a minor is itself a

relevant mitigating factor of great weight,” Eddings, 455

U. S., at 116, and that sentencing juries must be given an

opportunity carefully to consider a defendant’s age and

Cite as: 543 U. 8. (2005) 21

O'Connor, J., dissenting

maturity in deciding whether to assess the death penalty.

But the mitigating characteristics associated with youth

do not justify an absolute age limit. A legislature can

reasonably conclude, as many have, that some 17-year-old

murderers are mature enough to deserve the death pen-

alty in an appropriate case. And nothing in the record

before us suggests that sentencing juries are so unable

accurately to assess a 17-year-old defendant's maturity, or

so incapable of giving proper weight to youth as a mitigat-

ing factor, that the Eighth Amendment requires the

bright-line rule imposed today. In the end, the Court’s

flawed proportionality argument simply cannot bear the

weight the Court would place upon it.

Reasonable minds can differ as to the minimum age at

which commission of a serious crime should expose the

defendant to the death penalty, if at all. Many jurisdic-

tions have abolished capital punishment altogether, while

many others have determined that even the most heinous

crime, if committed before the age of 18, should not be

punishable by death. Indeed, were my office that of a

legislator, rather than a judge, then I, too, would be in-

clined to support legislation setting a minimum age of 18

in this context. But a significant number of States, includ-

ing Missouri, have decided to make the death penalty

potentially available for 17-year-old capital murderers

such as respondent. Without a clearer showing that a

genuine national consensus forbids the execution of such

offenders, this Court should not substitute its own “inevi-

tably subjective judgment” on how best to resolve this

difficult moral question for the judgments of the Nation’s

democratically elected legislatures. See Thompson, supra,

at 854 (O CoN NOR, J., concurring in judgment). I respect-

fully dissent.

Cite as: 543 U. 8. (2005) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 03-633

DONALD P. ROPER, SUPERINTENDENT, POTOSI

CORRECTIONAL CENTER, PETITIONER v.

CHRISTOPHER SIMMONS

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

MISSOURI

[March 1, 2005]

JUSTICE SCALIA, with whom THE CHIEF JUSTICE and

JUSTICE THOMAS join, dissenting.

In urging approval of a constitution that gave life-

tenured judges the power to nullify laws enacted by the

people's representatives, Alexander Hamilton assured the

citizens of New York that there was little risk in this,

since the judiciary ... ha[s] neither FORCE nor WILL

but merely judgment.” The Federalist No. 78, p. 465 (C.

Rossiter ed. 1961). But Hamilton had in mind a tradi-

tional judiciary, “bound down by strict rules and prece-

dents which serve to define and point out their duty in

every particular case that comes before them.” Id., at 471.

Bound down, indeed. What a mockery today’s opinion

makes of Hamilton’s expectation, announcing the Court's

conclusion that the meaning of our Constitution has

changed over the past 15 years—not, mind you, that this

Court’s decision 15 years ago was wrong, but that the

Constitution has changed. The Court reaches this im-

plausible result by purporting to advert, not to the original

meaning of the Eighth Amendment, but to “the evolving

standards of decency,” ante, at 6 (internal quotation marks

omitted), of our national society. It then finds, on the

flimsiest of grounds, that a national consensus which

2 ROPER v. SIMMONS

SCALIA, J., dissenting

could not be perceived in our people’s laws barely 15 years

ago now solidly exists. Worse still, the Court says in so

many words that what our people’s laws say about the

issue does not, in the last analysis, matter: “[I]n the end

our own judgment will be brought to bear on the question

of the acceptability of the death penalty under the Eighth

Amendment.” Ante, at 9 (internal quotation marks omit-

ted). The Court thus proclaims itself sole arbiter of our

Nation’s moral standards—and in the course of discharging

that awesome responsibility purports to take guidance from

the views of foreign courts and legislatures. Because I do

not believe that the meaning of our Eighth Amendment, any

more than the meaning of other provisions of our Constitu-

tion, should be determined by the subjective views of five

Members of this Court and like-minded foreigners, I dissent.

I

In determining that capital punishment of offenders

who committed murder before age 18 is “cruel and un-

usual” under the Eighth Amendment, the Court first

considers, in accordance with our modern (though in my

view mistaken) jurisprudence, whether there is a “na-

tional consensus,” ibid. (internal quotation marks omit-

ted), that laws allowing such executions contravene our

modern “standards of decency,”! Trop v. Dulles, 356 U.S.

The Court ignores entirely the threshold inquiry in determining

whether a particular punishment complies with the Eighth Amend-

ment: whether it is one of the “modes or acts of punishment that had

been considered cruel and unusual at the time that the Bill of Rights

was adopted.” Ford v. Wainwright, 477 U. S. 399, 405 (1986). As we have

noted in prior cases, the evidence is unusually clear that the Eighth

Amendment was not originally understood to prohibit capital punishment

for 16- and 17-year-old offenders. See Stanford v. Kentucky, 492 U. S. 361,

368 (1989). At the time the Eighth Amendment was adopted, the death

penalty could theoretically be imposed for the crime of a 7. year- old.

though there was a rebuttable presumption of incapacity to commit a

capital (or other) felony until the age of 14. See ibid. (citing 4 W. Black-

Cite as: 543 U. 8. (2005) 3

SCALIA, J., dissenting

86, 101 (1958). We have held that this determination

should be based on “objective indicia that reflect the public

attitude toward a given sanction”—namely, “statutes passed

by society's elected representatives.” Stanford v. Kentucky,

492 U.S. 361, 370 (1989) (internal quotation marks omit-

ted). As in Atkins v. Virginia, 536 U. S. 304, 312 (2002), the

Court dutifully recites this test and claims halfheartedly

that a national coiusensus has emerged since our decision

in Stanford, because 18 States—or 47% of States that

permit capital punishment—now have legislation prohibit-

ing the execution of offenders under 18, and because all of

four States have adopted such legislation since Stanford.

See ante, at 11.

Words have no meaning if the views of less than 50% of

death penalty States can constitute a national consensus.

See Atkins, supra, at 342-345 (SCALIA, J., dissenting).

Our previous cases have required overwhelming opposi-

tion to a challenged practice, generally over a long period

of time. In Coker v. Georgia, 433 U. S. 584, 595-596 (1977),

a plurality concluded the Eighth Amendment prohibited

capital punishment for rape of an adult woman where only

one jurisdiction authorized such punishment. The plural-

ity also observed that “[a]t no time in the last 50 years

ha[d] a majority of States authorized death as a punish-

ment for rape.” Id., at 593. In Ford v. Wainwright, 477

U. S. 399, 408 (1986), we held execution of the insane un-

constitutional, tracing the roots of this prohibition to the

common law and noting that “no State in the union permits

the execution of the insane.” In Enmund v. Florida, 458

U. S. 782, 792 (1982), we invalidated capital punishment

imposed for participation in a robbery in which an accom-

plice committed murder, because 78% of all death penalty

States prohibited this punishment. Even there we ex-

stone, Commentaries *23-"24; 1 M. Hale, Pleas of the Crown 24-29

(1800)).

4 ROPER v. SIMMONS

SCALIA, J., dissenting

pressed some hesitation, because the legislative judgment

was “neither ‘wholly unanimous among state legislatures,’

... nor as compelling as the legislative judgments consid-

ered in Coker.” Id., at 793. By contrast, agreement among

42% of death penalty States in Stanford, which the Court

appears to believe was correctly decided at the time, ante,

at 20, was insufficient to show a national consensus. See

Stanford, supra, at 372.

In an attempt to keep afloat its implausible assertion of

national consensus, the Court throws overboard a proposi-

tion well established in our Eighth Amendment jurispru-

dence. “It should be observed,” the Court says, “that the

Stanford Court should have considered those States that

had abandoned the death penalty altogether as part of the

consensus against the juvenile death penalty . .; a State’s

decision to bar the death penalty altogether of necessity

demonstrates a judgment that the death penalty is inap-

propriate for all offenders, including juveniles.” Ante, at

20. The insinuation that the Court’s new method of count-

ing contradicts only “the Stanford Court” is misleading.

None of our cases dealing with an alleged constitutional

_ limitation upon the death penalty has counted, as States

supporting a consensus in favor of that limitation, States

that have eliminated the death penalty entirely. See

Ford, supra, at 408, n. 2; Enmund, supra, at 789; Coker,

supra, at 594. And with good reason. Consulting States

that bar the death penalty concerning the necessity of

making an exception to the penalty for offenders under 18

is rather like including old-order Amishmen in a con-

sumer-preference poll on the electric car. Of course they

don’t like it, but that sheds no light whatever on the point

at issue. That 12 States favor no executions says some-

thing about consensus against the death penalty, but

nothing—absolutely nothing—about consensus that of-

fenders under 18 deserve special immunity from such a

penalty. In repealing the death penalty, those 12 States

Cite as: 543 U. 8. (2005) 5

SCALIA, J., dissenting

considered none of the factors that the Court puts forth as

determinative of the issue before us today—lower culpabil-

ity of the young, inherent recklessness, lack of capacity for

considered judgment, etc. What might be relevant, per-

haps, is how many of those States permit 16- and 17-year-

old offenders to be treated as adults with respect to non-

capital offenses. (They all do;? indeed, some even require

that juveniles as young as 14 be tried as adults if they are

charged with murder.*) The attempt by the Court to turn

its remarkable minority consensus into a faux majority by

counting Amishmen is an act of nomological desperation.

Recognizing that its national-consensus argument was

weak compared with our earlier cases, the Atkins Court

found additional support in the fact that 16 States had

prohibited execution of mentally retarded individuals

since Penry v. Lynaugh, 492 U. S. 302 (1989). Atkins, supra,

at 314-316. Indeed, the Atkins Court distinguished Stan-

ford on that very ground, explaining that “[a]lthough we

decided Stanford on the same day as Penry, apparently only

two state legislatures have raised the threshold age for

imposition of the death penalty.” 536 U.S., at 315, n. 18

(emphasis added). Now, the Court says a legislative change

2See Alaska Stat. §47.12.030 (Lexis 2002); Haw. Rev. Stat. §571-22

(1999); lowa Code §232.45 (2003); Me. Rev. Stat. Ann., Tit. 15, §3101(4)

(West 2003); Mass. Gen. Laws Ann., ch. 119, §74 (West 2003); Mich.

Comp. Laws Ann. §764.27 (West 2000); Minn. Stat. §260B.125 (2002);

N. D. Cent. Code §27—20—34 (Lexis Supp. 2003); R. I. Gen. Laws 6141

7 (Lexis 2002); Vt. Stat. Ann., Tit. 33, §5516 (Lexis 2001); W. Va. Code

§49-5-10 (Lexis 2004); Wis. Stat. §938.18 (2003-2004); see also Na-

tional Center for Juvenile Justice, Trying and Sentencing Juveniles as

Adults: An Analysis of State Transfer and Blended Sentencing Laws 1

(Oct. 2003). The District of Columbia is the only jurisdiction without a

death penalty that specifically exempts under-18 offenders from its

harshest sanction—life imprisonment without parole. See D. C. Code

§22-2104 (West 2001).

See Mass. Gen. Laws Ann,, ch. 119, §74 (West 2003); N. D. Cent.

Code §27-20-34 (Lexis Supp. 2003); W. Va. Code §49-5-10 (Lexis

2004). ape

——

6 ROPER v. SIMMONS

SCALIA, J., dissenting

in four States is “significant” enough to trigger a constitu-

tional prohibition.‘ Ante, at 11. It is amazing to think that

this subtle shift in numbers can take the issue entirely off

the table for legislative debate.

I also doubt whether many of the legislators who voted

to change the laws in those four States would have done so

if they had known their decision would (by the pro-

nouncement of this Court) be rendered irreversible. After

all, legislative support for capital punishment, in any

form, has surged and ebbed throughout our Nation’s his-

tory. As JUSTICE O’CONNOR has explained:

“The history of the death penalty instructs that there

is danger in inferring a settled societal consensus from

statistics like those relied on in this case. In 1846,

Michigan became the first State to abolish the death

penalty.... In succeeding decades, other American

States continued the trend towards abolition....

Later, and particularly after World War II, there en-

sued a steady and dramatic decline in executions ... .

In the 1950’s and 1960’s, more States abolished or

radically restricted capital punishment, and executions

ceased completely for several years beginning in

1968.

In 1972, when this Court heard arguments on the

constitutionality of the death penalty, such statistics

might have suggested that the practice had become a

relic, implicitly rejected by a new societal consensus.

We now know that any inference of a societal consensus

As the Court notes, Washington State’s decision to prohibit execu-

tions of offenders under 18 was made by a judicial, not legislative,

decision. State v. Furman, 122 Wash. 2d 440, 459, 858 P. 2d 1092, 1103

(1993), construed the State’s death penalty statute—which did not set

any age limit—to apply only to persons over 18. The opinion found that

construction necessary to avoid what it considered constitutional

difficulties, and did not purport to reflect popular sentiment. It is

irrelevant to the question of changed national consensus.

Cite as: 543 U.S.__ (2005) 7

SCALIA, J., dissenting

rejecting the death penalty would have been mistaken.

But had this Court then declared the existence of such a

consensus, and outlawed capital punishment, legisla-

tures would very likely not have been able to revive it.

The mistaken premise of the decision would have been

frozen into constitutional law, making it difficult to re-

fute and even more difficult to reject.” Thompson v.

Oklahoma, 487 U.S. 815, 854-855 (1988) (opinion con-

curring in judgment).

Relying on such narrow margins is especially inappro-

priate in light of the fact that a number of legislatures and

voters have expressly affirmed their support for capital

punishment of 16- and 17-year-old offenders since Stan-

ford. Though the Court is correct that no State has low-

ered its death penalty age, both the Missouri and Virginia

Legislatures—which, at the time of Stanford, had no

minimum age requirement—expressly established 16 as

the minimum. Mo. Rev. Stat. §565.020.2 (2000); Va. Code

Ann. §18.2—10(a) (Lexis 2004). The people of Arizona® and

Florida“ have done the same by ballot initiative. Thus,

In 1996, Arizona's Ballot Proposition 102 exposed under-18 murderers

to the death penalty by automatically transferring them out of juvenile

courts. The statute implementing the proposition required the county

attorney to “bring a criminal prosecution against a juvenile in the same

manner as an adult if the juvenile is fifteen, sixteen or seventeen years of

age and is accused of . first degree murder.” Ariz. Rev. Stat. Ann. 613—

501 (West 2001). The Arizona Supreme Court has added to this scheme

a constitutional requirement that there be an individualized assess-

ment of the juvenile’s maturity at the time of the offense. See State v.

Davolt, 207 Ariz. 191, 214-216, 84 P. 3d 456, 479-481 (2004).

*Florida voters approved an amendment to the State Constitution,

which changed the wording from “cruel or unusual” to “cruel and un-

usual,” Fla. Const., Art. I. §17 (2003). See Commentary to 1998 Amend-

ment, 25B Fla. Stat. Ann. p. 180 (West 2004). This was a response to a

Florida Supreme Court ruling that “cruel or unusual” excluded the death

penalty for a defendant who committed murder when he was younger

than 17. See Brennan v. State, 754 So. 2d 1, 5 (Fla. 1999). By adopting

the federal constitutional language, Florida voters effectively adopted our

8 ROPER v. SIMMONS

SCALIA, J., dissenting

even States that have not executed an under-18 offender

in recent years unquestionably favor the possibility of

capital punishment in some circumstances.

The Court’s reliance on the infrequency of executions,

for under-18 murderers, ante, at 10-11, 13, credits an

argument that this Court considered and explicitly re-

jected in Stanford. That infrequency is explained, we

accurately said, both by “the undisputed fact that a far

smaller percentage of capital crimes are committed by

persons under 18 than over 18,” 492 U.S., at 374, and by

the fact that juries are required at sentencing to consider

the offender’s youth as a mitigating factor, see Eddings v.

Oklahoma, 455 U. S. 104, 115-116 (1982) Thus, “it is not

only possible, but overwhelmingly probable, that the very

considerations which induce [respondent] and ſhis] sup-

porters to believe that death should never be imposed on

offenders under 18 cause prosecutors and juries to believe

that it should rarely be imposed.” Stanford, supra, at 274.

It is, furthermore, unclear that executions of the rele-

vant age group have decreased since we decided Stanford.

Between 1990 and 2003, 123 of 3,599 death sentences, or

3.4%, were given to individuals who committed crimes

before reaching age 18. V. Streib, The Juvenile Death

Penalty Today: Death Sentences and Executions for Juve-

nile Crimes, January 1, 1973—September 30, 2004, No. 75,

p. 9 (Table 3) (last updated Oct. 5, 2004), http://

www.law.onu.edu/faculty/streib/documentsJuvDeathSept30

2004.pdf (all Internet materials as visited Jan. 12, 2005,

and available in the Clerk of Court’s case file) (hereinafter

Juvenile Death Penalty Today). By contrast, only 2.1% of

those sentenced to death between 1982 and 1988 commit-

ted the crimes when they were under 18. See Stanford,

supra, at 373 (citing V. Streib, Imposition of Death Sen-

decision in Stanford v. Kentucky, 492 U. S. 361 (1989). See Weaver, Word

May Allow Execution of 16-Year-Olds, Miami Herald, Nov. 7, 2002, p. 7B.

Cite as: 543 U. 8. (2005) 9

SCALIA, J., dissenting

tences for Juvenile Offenses, January 1, 1982, Through

April 1, 1989, p. 2 (paper for Cleveland-Marshall College

of Law, April 5, 1989)). As for actual executions of under-

18 offenders, they constituted 2.4% of the total executions

since 1973. Juvenile Death Penalty Today 4. In Stanford,

we noted that only 2% of the executions between 1642 and

1986 were of under-18 offenders and found that that lower

number did not demonstrate a national consensus against

the penalty. 492 U. S., at 373-374 (citing V. Streib, Death

Penalty for Juveniles 55, 57 (1987)). Thus, the numbers of

under-18 offenders subjected to the death penalty, though

low compared with adults, have either held steady or

slightly increased since Stanford. These statistics in no

way support the action the Court takes today.

II

Of course, the real force driving today's decision is not

the actions of four state legislatures, but the Court's

on judgment“ that murderers younger than 18 can

never be as morally culpable as older counterparts. Ante,

at 9 (quoting Atkins, 536 U. S., at 312 (in turn quoting

Coker, 433 U. S., at 597 (plurality opinion). The Court

claims that this usurpation of the role of moral arbiter is

simply a “retur[n] to the rulfe] established in decisions

predating Stanford,” ante, at 9. That supposed rule—

which is reflected solely in dicta and never once in a hold-

ing that purports to supplant the consensus of the Ameri-

can people with the Justices’ views’—was repudiated in

Stanford for the very good reason that it has no founda-

tion in law or logic. If the Eighth Amendment set forth an

7 See, eg. Enmund v. Florida, 458 U. S. 782, 801 (1982) (Wie have

no reason to disagree with thie] judgment [of the state legislatures] for

purposes of construing and applying the Eighth Amendment”); Coker v.

Georgia, 433 U. S. 584, 597 (1977) (plurality opinion) (“[T}he legislative

rejection of capital punishment for rape strongly confirms our own

judgment”).

10 ROPER v. SIMMONS

SCALIA, J., dissenting

ordinary rule of law, it would indeed be the role of this

Court to say what the law is. But the Court having pro-

nounced that the Eighth Amendment is an ever-changing

reflection of “the evolving standards of decency” of our

society, it makes no sense for the Justices then to prescribe

those standards rather than discern them from the prac-

tices of our people. On the evolving-standards hypothesis,

the only legitimate function of this Court is to identify a

moral consensus of the American people. By what con-

ceivable warrant can nine lawyers presume to be the

authoritative conscience of the Nation? ®

The reason for insistence on legislative primacy is obvi-

ous and fundamental: “‘[I]n a democratic society legisla-

tures, not courts, are constituted to respond to the will and

consequently the moral values of the people. Gregg v.

Georgia, 428 U.S. 153, 175-176 (1976) (joint opinion of

Stewart, Powell, and STEVENS, JJ.) (quoting Furman v.

Georgia, 408 U. S. 238, 383 (1972) (Burger, C. J., dissent-

ing)). For a similar reason we have, in our determination

of society’s moral standards, consulted the practices of

sentencing juries: Juries “‘maintain a link between con-

temporary community values and the penal system’” that

this Court cannot claim for itself. Gregg, supra, at 18

(quoting Witherspoon v. Illinois, 391 U.S. 510, 519, n. 15

(1968)).

Today's opinion provides a perfect example of why

judges are ill equipped to make the type of legislative

judgments the Court insists on making here. To support

8 JUSTICE O'CONNOR agrees with our analysis that no national con-

sensus exists here, ante, at 8-12 (dissenting opinion). She is nonethe-

less prepared (like the majority) to override the judgment of America’s

legislatures if it contradicts her own assessment of “moral proportional-

ity,” ante, at 12. She dissents here only because it does not. The votes

in today’s case demonstrate that the offending of selected lawyers’

moral sentiments is not a predictable basis for law—much less a

democratic one.

Cite as: 543 U. 8. — (2005) 11

SCALIA, J., dissenting

its opinion that States should be prohibited from imposing

the death penalty on anyone who committed murder

before age 18, the Court looks to scientific and sociological

studies, picking and choosing those that support its posi-

tion. It never explains why those particular studies are

methodologically sound; none was ever entered into evi-

dence or tested in an adversarial proceeding. As THE

CHIEF JUSTICE has explained:

“[(M]ethodological and other errors can affect the reli-

ability and validity of estimates about the opinions

and attitudes of a population derived from various

sampling techniques. Everything from variations in

the survey methodology, such as the choice of the tar-

get population, the sampling design used, the ques-

tions asked, and the statistical analyses used to inter-

pret the data can skew the results.” Atkins, supra, at

326-327 (dissenting opinion) (citing R. Groves, Survey

Errors and Survey Costs (1989); 1 C. Turner & E.

Martin, Surveying Subjective Phenomena (1984)).

In other words, all the Court has done today, to borrow

from another context, is to look over the heads of the

crowd and pick out its friends. Cf. Conroy v. Aniskoff, 507

U. S. 511, 519 (1993) (SCALIA, ., concurring in judgment).

We need not look far to find studies contradicting the

Court’s conclusions. As petitioner points out, the American

Psychological Association (APA), which claims in this case

thet scientific evidence shows persons under 18 lack the

ability to take moral responsibility for their decisions, has

previously taken precisely the opposite position before this

very Court. In its brief in Hodgson v. Minnesota, 497 U. S.

417 (1990), the APA found a “rich body of research” show-

ing that juveniles are mature enough to decide whether to

obtain an abortion without parental involvement. Brief for

APA as Amicus Curiae, O. T. 1989, No. 88-805 etc., p. 18.

The APA brief, citing psychology treatises and studies too

12 ROPER v. SIMMONS

SCALIA, J., dissenting

numerous to list here, asserted: “[B]y middle adolescence

(age 1415) young people develop abilities similar to adults

in reasoning about moral dilemmas, understanding social

rules and laws, [and] reasoning about interpersonal rela-

tionships and interpersonal problems.” Id., at 19-20 (cita-

tions omitted). Given the nuances of scientific methodology

and conflicting views, courts—which can only consider the

limited evidence on the record before them—are ill

equipped to determine which view of science is the right

one. Legislatures “are better qualified to weigh and ‘evalu-

ate the results of statistical studies in terms of their own

local conditions and with a flexibility of approach that is not

available to the courts.” McCleskey v. Kemp, 481 U. S. 279,

319 (1987) (quoting Gregg, supra, at 186).

Even putting aside questions of methodology, the studies

cited by the Court offer scant support for a categorical

prohibition of the death penalty for murderers under 18.

At most, these studies conclude that, on average, or in

most cases, persons under 18 are unable to take moral

responsibility for their actions. Not one of the cited studies

opines that all individuals under 18 are unable to appreciate

the nature of their crimes.

Moreover, the cited studies describe only adolescents

who engage in risky or antisocial behavior, as many young

people do. Murder, however, is more than just risky or

antisocial behavior. It is entirely consistent to believe that

young people often act impetuously and lack judgment,

but, at the same time, to believe that those who commit

premeditated murder are—at least sometimes—just as

culpable as adults. Christopher Simmons, who was only

seven months shy of his 18th birthday when he murdered

Shirley Crook, described to his friends beforehand—“{i}n

chilling, callous terms,” as the Court puts it, ante, at 1—

the murder he planned to commit. He then broke into the

home of an innocent woman, bound her with duct tape and

electrical wire, and threw her off a bridge alive and con-

Cite as: 543 U. 8. — (2005) 13

ScALIA, J., dissenting

scious. Ante, at 2. In their amici brief, the States of Ala-

bama, Delaware, Oklahoma, Texas, Utah, and Virginia

offer additional examples of murders committed by indi-

viduals under 18 that involve truly monstrous acts. In

Alabama, two 17-year-olds, one 16-year-old, and one 19-

year-old picked up a female hitchhiker, threw bottles at

her, and kicked and stomped her for approximately 30

minutes until she died. They then sexually assaulted her

lifeless body and, when they were finished, threw her body

off a cliff. They later returned to the crime scene to muti-

late her corpse. See Brief for Alabama etal. as Amici

Curiae 9-10; see also Loggins v. State, 771 So. 2d 1070,

1074-1075 (Ala. Crim. App. 1999); Duncan v. State, 827

So. 2d 838, 840-841 (Ala. Crim. App. 1999). Other exam-

ples in the brief are equally shocking. Though these cases

are assuredly the exception rather than the rule, the

studies the Court cites in no way justify a constitutional

imperative that prevents legislatures and juries from

treating exceptional cases in an exceptional way—by

determining that some murders are not just the acts of

happy-go-lucky teenagers, but heinous crimes deserving of

death.

That “almost every State prohibits those under 18 years

of age from voting, serving on juries, or marrying without

parental consent,” ante, at 15, is patently irrelevant—and

is yet another resurrection of an argument that this Court

gave a decent burial in Stanford. (What kind of Equal

Justice under Law is it that—without so much as a “Sorry

about that —gives as the basis for sparing one person

from execution arguments explicitly rejected in refusing to

spare another?) As we explained in Stanford, 492 U. S., at

374, it is “absurd to think that one must be mature enough

to drive carefully, to drink responsibly, or to vote intelli-

gently, in order to be mature enough to understand that

murdering another human being is profoundly wrong, and

to conform one’s conduct to that most minimal of all civi-

14 ROPER v. SIMMONS

SCALIA, J., dissenting

lized standards.” Serving on a jury or entering into mar-

riage also involve decisions far more sophisticated than

the simple decision not to take another’s life.

Moreover, the age statutes the Court lists “set the ap-

propriate ages for the operation of a system that makes its

determinations in gross, and that does not conduct indi-

vidualized maturity tests. Ibid. The criminal justice

system, by contrast, provides for individualized considera-

tion of each defendant. In capital cases, this Court re-

quires the sentencer to make an individualized determina-

tion, which includes weighing aggravating factors and

mitigating factors, such as youth. See Eddings, 455 U. S.,

at 115-117. In other contexts where individualized con-

sideration is provided, we have recognized that at least

some minors will be mature enough to make difficult

decisions that involve moral considerations. For instance,

we have struck down abortion statutes that do not allow

minors deemed mature by courts to bypass parental notifi-

cation provisions. See, e.g., Bellotti v. Baird, 443 U.S.

622, 643-644 (1979) (opinion of Powell, J.); Planned Par-

enthood of Central Mo. v. Danforth, 428 U.S. 52, 74-75

(1976). It is hard to see why this context should be any

different. Whether to obtain an abortion is surely a much

more complex decision for a young person than whether to

kill an innocent person in cold blood.

The Court concludes, however, ante, at 18, that juries

cannot be trusted with the delicate task of weighing a

defendant's youth along with the other mitigating and

aggravating factors of his crime. This startling conclusion

undermines the very foundations of our capital sentencing

system, which entrusts juries with “mak[ing] the difficult

and uniquely human judgments that defy codification and

that ‘buil[d] discretion, equity, and flexibility into a legal

system McCleskey, supra, at 311 (quoting H. Kalven & H.

Zeisel, The American Jury 498 (1966)). The Court says,

ante, at 18, that juries will be unable to appreciate the

Cite as: 543 U. 8. (2005) 15

SCALIA, J., dissenting

significance of a defendant’s youth when faced with details

of a brutal crime. This assertion is based on no evidence; to

the contrary, the Court itself acknowledges that the execu-

tion of under-18 offenders is “infrequent” even in the States

“without a formal prohibition on executing juveniles,” ante,

at 10, suggesting that juries take seriously their responsibil-

ity to weigh youth as a mitigating factor.

Nor does the Court suggest a stopping point for its

reasoning. If juries cannot make appropriate determina-

tions in cases involving murderers under 18, in what other

kinds of cases will the Court find jurors deficient? We

have already held that no jury may consider whether a

mentally deficient defendant can receive the death pen-

alty, irrespective of his crime. See Atkins, 536 U.S., at

321. Why not take other mitigating factors, such as con-

siderations of childhood abuse or poverty, away from

juries as well? Surely jurors “overpower[ed]” by “the

brutality or cold-blooded nature” of a crime, ante, at 19,

could not adequately weigh these mitigating factors either.

The Court's contention that the goals of retribution and

deterrence are not served by executing murderers under

18 is also transparently false. The argument that “[rJetri-

bution is not proportional if the law’s most severe penalty

is imposed on one whose culpability or blameworthiness is

diminished,” ante, at 17, is simply an extension of the

earlier, false generalization that youth always defeats

culpability. The Court claims that “juveniles will be less

susceptible to deterrence,” ante, at 18, because “‘[t}]he

likelihood that the teenage offender has made the kind of

cost-benefit analysis that attaches any weight to the pos-

sibility of execution is so remote as to be virtually nonexis-

tent. ibid. (quoting Thompson, 487 U. S., at 837). The

Court unsurprisingly finds no support for this astounding

proposition, save its own case law. The facts of this very

case show the proposition to be false. Before committing

the crime, Simmons encouraged his friends to join him by

16 ROPER v. SIMMONS

SCALIA, J., dissenting

assuring them that they could “get away with it” because

they were minors. State ex rel. Simmons v. Roper, 112

S. W. 3d 397, 419 (Mo. 2003) (Price, J., dissenting). This

fact may have influenced the jury's decision to impose

capital punishment despite Simmons’ age. Because the

Court refuses to entertain the possibility that its own

unsubstantiated generalization about juveniles could be

wrong, it ignores this evidence entirely.

III

Though the views of our own citizens are essentially

irrelevant to the Court's decision today, the views of other

countries and the so-called international community take

center stage.

The Court begins by noting that “Article 37 of the

United Nations Convention on the Rights of the Child,

1577 U.N. T. S. 3, 28 I. L. M. 1448, 1468-1470, entered

into force Sept. 2, 1990], which every country in the world

has ratified save for the United States and Somalia, con-

tains an express prohibition on capital punishment for

crimes committed by juveniles under 18.” Ante, at 22

(emphasis added). The Court also discusses the Interna-

tional Covenant on Civil and Political Rights (ICCPR),

December 19, 1966, 999 U.N. T. S. 175, ante, at 13, 22,

which the Senate ratified only subject to a reservation

that reads:

“The United States reserves the right, subject to its

Constitutional restraints, to impose capital punish-

ment on any person (other than a pregnant woman)

duly convicted under existing or future laws permit-

ting the imposition of capital punishment, including

such punishment for crime committed by persons be-

low eighteen years of age.” Senate Committee on For-

eign Relations, International Covenant on Civil and

Political Rights, S. Exec. Rep. No. 102-23, (1992).

Cite as: 543 U. 8. (2005) 17

SCALIA, J., dissenting

Unless the Court has added to its arsenal the power to join

and ratify treaties on behalf of the United States, I cannot

see how this evidence favors, rather than refutes, its

position. That the Senate and the President—those actors

our Constitution empowers to enter into treaties, see Art.

II. §2—have declined to join and ratify treaties prohibiting

execution of under-18 offenders can only suggest that our

country has either not reached a national consensus on the

question, or has reached a consensus contrary to what the

Court announces. That the reservation to the ICCPR was

made in 1992 does not suggest otherwise, since the reser-

vation still remains in place today. It is also worth noting

that, in addition to barring the execution of under-18

offenders, the United Nations Convention on the Rights of

the Child prohibits punishing them with life in prison with-

out the possibility of release. If we are truly going to get in

line with the international community, then the Court's

reassurance that the death penalty is really not needed,

since “the punishment of life imprisonment without the

possibility of parole is itself a severe sanction,” ante, at 18,

gives little comfort.

It is interesting that whereas the Court is not content to

accept what the States of our Federal Union say, but

insists on inquiring into what they do (specifically,

whether they in fact apply the juvenile death penalty that

their laws allow), the Court is quite willing to believe that

every foreign nation—of whatever tyrannical political

makeup and with however subservient or incompetent a

court system in fact adheres to a rule of no death penalty

for offenders under 18. Nor does the Court inquire into

how many of the countries that have the death penalty,

but have forsworn (on paper at least) imposing that pen-

alty on offenders under 18, have what no State of this

country can constitutionally have: a mandatory death

penalty for certain crimes, with no possibility of mitigation

by the sentencing authority, for youth or any other reason.

18 ROPER v. SIMMONS

SCALIA, J., dissenting

I suspect it is most of them. See, e.g., R. Simon & D.

Blaskovich, A Comparative Analysis of Capital Punish-

ment: Statutes, Policies, Frequencies, and Public Attitudes

the World Over 25, 26, 29 (2002). To forbid the death

penalty for juveniles under such a system may be a good

idea, but it says nothing about our system, in which the

sentencing authority, typically a jury, always can, and

almost always does, withhold the death penalty from an

under-18 offender except, after considering all the circum-

stances, in the rare cases where it is warranted. The

foreign authorities, in other words, do not even speak to

the issue before us here.

More fundamentally, however, the basic premise of the

Court’s argument—that American law should conform to

the laws of the rest of the world—ought to be rejected out

of hand. In fact the Court itself does not believe it. In

many significant respects the laws of most other countries

differ from our law—including not only such explicit pro-

visions of our Constitution as the right to jury trial and

grand jury indictment, but even many interpretations of

the Constitution prescribed by this Court itself. The

Court-pronounced exclusionary rule, for example, is dis-

tinctively American. When we adopted that rule in Mapp

v. Ohio, 367 U. S. 643, 655 (1961), it was “unique to Ameri-

can Jurisprudence.” Bivens v. Six Unknown Fed. Narcotics

Agents, 403 U. S. 388, 415 (1971) (Burger, C. J., dissenting).

Since then a categorical exclusionary rule has been “univer-

sally rejected” by other countries, including those with rules

prohibiting illegal searches and police misconduct, despite

the fact that none of these countries “appears to have any

alternative form of discipline for police that is effective in

preventing search violations.” Bradley, Mapp Goes Abroad,

52 Case W. Res. L. Rev. 375, 399-400 (2001). England, for

example, rarely excludes evidence found during an illegal

search or seizure and has only recently begun excluding

evidence from illegally obtained confessions. See C. Slobo-

Cite as: 543 U. 8. (2005) 19

SCALIA, J., dissenting

gin, Criminal Procedure: Regulation of Police Investigation

550 (3d ed. 2002). Canada rarely excludes evidence and will

only do so if admission will “bring the administration of

justice into disrepute.” Id., at 550551 (internal quotation

marks omitted) The European Court of Human Rights has

held that introduction of illegally seized evidence does not

violate the “fair trial” requirement in Article 6, §1, of the

European Convention on Human Rights. See Slobogin,

supra, at 551; Bradley, supra, at 377-378.

The Court has been oblivious to the views of other coun-

tries when deciding how to interpret our Constitution’s

requirement that “Congress shall make no law respecting

an establishment of religion. Amdt. 1. Most other

countries—including those committed to religious neutral-

ity—do not insist on the degree of separation between

church and state that this Court requires. For example,

whereas “we have recognized special Establishment

Clause dangers where the government makes direct

money payments to sectarian institutions,” Rosenberger v.

Rector and Visitors of Univ. of Va., 515 U.S. 819, 842

(1995) (citing cases), countries such as the Netherlands,

Germany, and Australia allow direct government funding

of religious schools on the ground that “the state can only

be truly neutral between secular and religious perspec-

tives if it does not dominate the provision of so key a

service as education, and makes it possible for people to

exercise their right of religious expression within the

context of public funding.” S. Monsma & J. Soper, The

Challenge of Pluralism: Church and State in Five Democ-

racies 207 (1997); see also id., at 67, 103, 176. England

permits the teaching of religion in state schools. Id., at

142. Even in France, which is considered “America’s only

rival in strictness of church-state separation,” “[t]he prac-

tice of contracting for educational services provided by

Catholic schools is very widespread.” C. Glenn, The Am-

biguous Embrace: Government and Faith-Based Schools

20 ROPER v. SIMMONS

SCALIA, J., dissenting

and Social Agencies 110 (2000).

And let us not forget the Court’s abortion jurisprudence,

which makes us one of only six countries that allow abor-

tion on demand until the point of viability. See Larsen,

Importing Constitutional Norms from a “Wider Civiliza-

tion”: Lawrence and the Rehnquist Court’s Use of Foreign

and International Law in Domestic Constitutional Inter-

pretation, 65 Ohio St. L. J. 1283, 1320 (2004);

Center for Reproductive Rights, The World’s Abortion

Laws (June 2004), http://www.reproductiverights.org/

pub fac abortion laws. html Though the Government and

amici in cases following Roe v. Wade, 410 U. S. 113 (1973),

urged the Court to follow the international community's

lead. these arguments fell on deaf ears. See McCrudden,

A Part of the Main? The Physician-Assisted Suicide Cases

and Comparative Law Methodology in the United States

Supreme Court, in Law at the End of Life: The Supreme

Court and Assisted Suicide 125, 129-130 (C. Schneider ed.

2000).

The Court's special reliance on the laws of the United

Kingdom is perhaps the most indefensible part of its

opinion. It is of course true that we share a common

history with the United Kingdom, and that we often con-

sult English sources when asked to discern the meaning of

a constitutional text written against the backdrop of 18th-

century English law and legal thought. If we applied that

approach today, our task would be an easy one. As we

explained in Harmelin v. Michigan, 501 U.S. 957, 973

974 (1991), the “Cruell and Unusuall Punishments” provi-

sion of the English Declaration of Rights was originally

meant to describe those punishments out of [the Judges]

Power — that is, those punishments that were not author-

ized by common law or statute, but that were nonetheless

administered by the Crown or the Crown’s judges. Under

that reasoning, the death penalty for under-18 offenders

would easily survive this challenge. The Court has, how-

Cite as: 543 U. 8. (2005) 21

SCALIA, J., dissenting

ever I think wrongly—long rejected a purely originalist

approach to our Eighth Amendment, and that is certainly

not the approach the Court takes today. Instead, the

Court undertakes the majestic task of determining (and

thereby prescribing) our Nation’s current standards of

decency. It is beyond comprehension why we should look,

for that purpose, to a country that has developed, in the

centuries since the Revolutionary War—and with increas-

ing speed since the United Kingdom’s recent submission to

the jurisprudence of European courts dominated by conti-

nental jurists—a legal, political, and social culture quite

different from our own. If we

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