Redefining Roper and the Juvenile Death Penalty

JURIST Assistant Editor Katherine Bacher, University of Pittsburgh School of Law Class of 2014, argues that the US Supreme Court should consider reinstating capital punishment for defendants who committed serious crimes while under the age of 18... (Her opinions are not intended to represent those of JURIST)

The death penalty continues to be one of the most controversial aspects of the US penal system. It has received a great deal of attention in the last few decades, as the Supreme Court has placed more and more restrictions on capital punishment and greatly limited the instances in which it is permissible. Most notably, in Roper v. Simmons, in 2005, the Court abolished the juvenile death penalty, holding that it was unconstitutional to impose the death penalty for crimes committed when under the age of 18. While there have been further restrictions made with regard to sentences available for juvenile defendants, Roper has most drastically limited the penological powers of the state. The Supreme Court should reconsider the context of its previous jurisprudence, and consider moving toward a standard that preserves states' rights and takes into consideration all the factors of a crime in sentencing, rather than placing a categorical ban on the availability of the juvenile death penalty.

The challenge to the appropriateness of the juvenile death penalty has surfaced in light of concern over the increasingly harsh penalties being given to juveniles for what seem like increasingly serious and adult crimes. The argument in opposition to capital punishment for juveniles holds that it constitutes cruel and unusual punishment under the Eighth Amendment of the US Constitution, which states that, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicts." However, in context, the issues surrounding juvenile capital punishment appears more politically than socially motivated. It has previously been decided by the Supreme Court in Trop v. Dulles that any examination of this amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." This interpretation has been used by the Court in cases that followed Trop to determine what punishments are appropriate for different classes of people. In determining the "evolving standards of decency," a major point of contention has been the influence that foreign laws, norms and precedents have had on the interpretation of US law and the penological goals of the country. Prior to Roper, the US was one of only a few countries to have maintained the juvenile death penalty. And it is well known that ever increasing pressure from international organizations played a large role in the Court's decision to ban the juvenile death penalty.

In Roper, under the "evolving standards of decency" test, the Court held that it was cruel and unusual to execute a juvenile. The decision focused heavily on the mental capacity of adolescents and numerous other mitigating factors surrounding the maturity and responsibility of juveniles, and the corresponding level of punishment that is acceptable. Among the mitigating factors considered were the age of the juveniles at the time of the offense, the nature of the crime committed, the brutality of the crime and the mental state of the juvenile at the time of the crime. The Court's decision held that juveniles cannot be sentenced to death, as, in light of these mitigating factors, the Eighth Amendment would bar such a practice.

It was decided in the earlier case of Harmelin v. Michigan that when the death penalty is being considered for adults, it is necessary to consider the mitigating factors. Depending on the extent to which they exist, a defendant may receive a lesser, but still severe, sentence, such as life in prison without the possibility of parole. The reasoning behind this is that it would be inhumane to impose a death sentence while ignoring potentially mitigating factors. In the same vein, with respect to the juvenile death penalty, instead of categorically banning capital punishment, the Court should have reinforced its decision in Harmelin regarding mitigating factors. The categorical ban removes the states' penological prerogative to punish serious offenders to the full extent of their laws. Leaving the death penalty as a possibility would serve many of the same penological objectives that society promotes via other sentences, such as deterrence and retribution.

In 2010, the Court moved beyond Roper, holding that juvenile offenders cannot be sentenced to life imprisonment without parole for non-homicide offenses. Furthermore, Graham v. Florida is particularly of note because of the test that the Court employed in deciding it. A two-part test was used to examine how the Eighth Amendment applies to juvenile sentences. The first part of the test deals with a proportionality challenge, which requires that the nature of the crime and the age and mental capacity of the defendant be taken into consideration for individualized sentencing. The second part of the test deals with a categorical challenge and analyzes the sentence in relation to an entire class of individuals.

The elements of the proportionality challenge include: the age of the defendant at the time of the crime, the nature of the crime committed, the severity of the sentence in question and the penological goal of the government in imposing the sentence. In the case of the juvenile death penalty, as was established in Graham, the age of the defendant, the nature of the crime and other mitigating factors could be taken into consideration when determining if capital punishment is appropriate, allowing jurisdictions to impose sentences that reflect their own standards of decency. Overturning the ban on the juvenile death penalty would not force states to reinstitute this penalty, rather each jurisdiction could determine what its constituency approves of or feels appropriate. However, the decision in Roper disallows states from ever having the opportunity to use this form of penalty, even in cases in which the democratic population of a jurisdiction approves of it and feels it to be necessary.

The reasoning that the Court used in Roper revolved around youth being a overwhelmingly mitigating factor, focusing on the signature qualities that make up the transient nature of adolescent behavior. The Court decided that due to these qualities, juveniles make up a less culpable group even when they commit the most heinous of crimes. This seems to unrealistically group all adolescents together, rather than considering the characteristics of the actual crime that was committed. When juveniles commit adult crimes and when jurisdictions can choose to try juveniles as adults, it seems logical that jurisdictions should also be able to impose adult sentences on juveniles. The age at which juveniles can be tried as adults varies from state to state, and there is much leeway given to prosecutors as to whether this should be done. The same deference should be given to the states and prosecutors with respect to imposing capital punishment on juveniles, as some terrible acts may indeed make the death sentence appropriate.

When a 16-year-old commits a heinous murder, it is now commonplace that he may receive a life sentence, or even a life sentence without the possibility of parol. This adolescent then grows up in a prison environment and is unlikely to ever re-enter society as a productive citizen. Some may call the death penalty harsh, however, compared to a life with no hope and no chance at ever leaving the penal system, it could easily be seen as the opposite. This is not to say that the death penalty should be mandatorily imposed on any group, including juveniles. However, the Supreme Court should reconsider its determination that this sentence is categorically inappropriate for all juveniles, in every situation. The decision of whether or not to apply the death penalty for juveniles should have been left to the state, as are most other penological decisions.

Katherine Bacher graduated from Washington & Jefferson College in 2011. She is currently an assistant editor for JURIST's Archives service, and the vice-president of the Military Law Society and business manager of the Federalist Society at the University of Pittsburgh School of Law.

The opinions expressed herein are solely those of the author and do not necessarily represent those of JURIST or any other organization.

Suggested citation: Katherine Bacher, Redefining Roper and the Juvenile Death Penalty, JURIST - Dateline, April 22, 2012,

This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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