Capital Punishment Atkins v. Virginia Roper v. Simmons

1. Capital PunishmentAtkins v. VirginiaRoper v. Simmons Elizabeth Howell 3/6/06

2. Atkins v. Virginia (2002) • Background: Atkins was sentenced to death for capital murder. The Virginia Supreme Court upheld the death sentence, rejecting the argument that he should not be sentenced to death due to his mental retardation. • Issue: Is execution of mentally retarded criminals “cruel and unusual punishment” prohibited by the Eighth Amendment? • Is the punishment excessive (i.e. not proportional to the offense)? • Look to evolving standards of decency (Trop v. Dulles): Is there national consensus against MR DP? • Objective factors: • Legislative developments • Sentencing trends • Court’s own judgment (Coker v. Georgia) • Held: Execution of mentally retarded criminals is unconstitutional in light of the 8th Amendment prohibition on “cruel and unusual punishment.” • Overruled Penry v. Lynaugh, 1989

3. The States Many ways to count states’ legislation: Stevens Majority: • 18 states and the Fed prohibit MR DP • 3 states almost prohibited MR DP • “It is not so much the number of these States that is significant, but the consistency of the direction of that change.” Rehnquist Dissent: • 18 states limit DP based on MR • “19 other states besides Virginia” leave MR DP to be decided by judge/jury Scalia Dissent: • 18 of 38 DP states prohibit MR DP, but only 7 prohibit all executions (i.e. applying to crimes and sentences pre-legislation)

4. The Opinion Polls – Footnote 21 • FN 21: “[P]olling data shows a widespread consensus among Americans…that executing the mentally retarded is wrong.” • This claim was based on 27 public opinions polls. • A “random sample” of the questions: “Mentally retarded defendants should be given the death penalty when they commit capital crimes.” (CA, 1997) 74% disagree 17% agree 9% no opinion “Would you vote for the death penalty if the convicted person is mentally retarded?” (LA, 1993) 77.7% no 9.2% yes 13% uncertain “Should the Carolinas ban the execution of people with mental retardation?” (NC/SC, 2000) 64% yes 21% no 14% not sure “Do you favor or oppose the death penalty for mentally retarded individuals convicted of serious crimes, such as murder?” (USA, 1998) 61% oppose 27% favor 12% not sure “Would you support the death penalty if you were convinced the defendant were guilty, but the defendant is mentally impaired?” (USA, 2001) 63.8% no support 16.4% support 19.8% not sure/no answer

5. Strength: • Together, the polls covered a wide variety of populations (15 states and the nation) Weaknesses: • Widely different questions (some not even provided) • Many polls did not account for constant no’s (those who would never apply DP) or wobble (might) category • Most did not define MR, and those that did defined it in different ways • Most did not provide context or mention jury context

6. Possible Improvements • New polls to improve consistency and operationalization • Polls in states with legislation prohibiting MR DP and in states allowing MR DP to compare? • Analysis of sentencing trends (similar to Fagan and West juvenile death sentence study)

7. Questions • Did the social science really matter here? • Better way to establish consensus? • Does this case just change the fight into one about who qualifies as mentally retarded? Advantages and disadvantages of this?

8. Roper v. Simmons, 2005 • Background: Christopher Simmons was sentenced to death for a murder he committed at age 17. The Missouri Supreme Court set aside the death sentence based on the reasoning in Atkins v. Virginia. • Thompson v. Oklahoma (1988) previously prohibited capital punishment for offenders under 16. • Stanford v. Kentucky (1989) held that the 8th and 14th Amendments did not prohibit offenders 16 and 17 years old from being sentenced to death. In 1989, 22 of 37 DP states allowed DP for 16 year old offenders; 25 of 37 permitted it for 17 year old offenders. • Issue: Is execution of juveniles under 18 prohibited by the 8th and 14th Amendments? • Held: Execution of juveniles under 18 at the time of their crime is unconstitutional under the 8th and 14th Amendments. • Overruled Stanford

9. Juvenile Culpability: APA Brief and the Brain Scans • “Science confirms that adolescent offenders [ages 16-17] exhibit deficiencies this court has identified as warranting exclusion from the death penalty.” • Brain imaging studies • Presented as analogous to MR deficiencies, except not permanent. • Brain studies post-Stanford

10. Strengths and Weaknesses Strengths: • Consistent with behavioral observations and studies • Less susceptible to bias? Weaknesses: • Developmentally, 18 is an arbitrary line to draw. • Constant improvements in science – what if new knowledge challenges the technique, conclusions, etc? • Implicit and explicit analogizing to MR is problematic, practically

11. Juvenile Culpability: Steinberg & Scott Should juveniles be punished to the same extent as adults who commit similar crimes? • 3 differences between adolescents and adults (which Kennedy catches on to) • Cognitive and psychosocial immaturity  immature decision-making • Peer influence, risk perception, future-orientation, self-management 2) Vulnerability to negative influences, coercion • Relatively less pressure will seem “extraordinary” to adolescents; heightened group risk-taking 3) Adolescent personalities not fully formed, so criminal behavior less likely to reflect “bad” character • APA does not allow diagnosis of Antisocial Personality Disorder before age 18

12. The Culpability Research: Strengths and Weaknesses Strengths: • Substantial literature and a variety of studies reaching similar conclusions Weaknesses: • Mostly self-report, paper and pencil studies • Studied population not generalizeable to adolescent criminals; most research was on students and teenagers in laboratories • “At this point, the connection between neurobiological and psychological evidence of age differences in decision-making capacity is indirect and suggestive.” (Steinberg & Scott) – but it is presented as conclusive, and the court takes it as such. • Not specific to the legal conception of maturity at age 18 • Peer pressure studies mostly use hypothetical pressure

13. Suggestions • Research specifically on juvenile offenders’ (and perhaps those at risk) decision-making and maturity • Study to determine whether there are differences in decision-making for “minor” crimes (drinking, drugs, minor theft) vs., as in JDP, murder? • Simulate decision-making situation in addition to self-report and written

14. Establishing National Consensus State Legislation: Counting Conundrums Revisited Kennedy majority: 30 states prohibit JDP (incl. 12 states with no DP) • Prof. Emens’ “Denominator Dispute” argument that 30 is the relevant number because juveniles are a lesser included group in DP. • O’Connor dissent: Emphasizes that, unlike MR DP, 8 states explicitly set 16 or 17 as minimum age for DP • Scalia’s dissent: 18 states prohibit JDP, including 4 states that have adopted such legislation since Stanford (1989). WA doesn’t count for purposes of “consensus” because it was court action. • Fagan and West Study: In 15 years after Stanford, 6 states passed statutes ending JDP, and WA Supreme Court said DP statute excluded juveniles under 18. • 6 states prohibiting JDP since Stanford includes KS and NY which reinstituted the death penalty post-Stanford, but disallowed JDP at the same time

15. Other State Legislation Voting age, jury service, marriage w/o parental consent Comparisons useful for justifying the line being drawn at 18, but administratively, it is easier to make individual determinations of culpability in capital murder cases than in, for example, voting preparedness.

16. A Decline in JDP Sentences? Fagan and West Study: • 1990-2003; “simple cross-sectional prospective analysis of patterns and trends at the state level for each year beginning in 1990” • JDP relative to juvenile homicide arrest, and compared to young adult defendants (18-24) to isolate juveniles • “Death sentence for juveniles” vs. “juveniles sentenced to death” – multivariate analysis uses only new sentences • Database including all death sentences from 1990-2003 (from official data sources and Streib’s index)

17. Results 1) Descriptive analyses of trends in juvenile and adult death sentences • Showed juvenile death sentences were declining at a greater rate than adult death sentences (in high and low death sentence states) 2) Multivariate tests • To test whether the trends noted by descriptive analysis are the result of an evolving standard opposing JDP. • “The decline in juvenile death sentences is statistically significant after we control for competing explanations for its decline…results are consistent across different measurement and analysis conditions.”

18. How does the court (mis)use the statistics? • Scalia:  ”It is, furthermore, unclear that executions of the relevant age group have decreased since we decided Stanford.” • Scalia cites Streib, whose data was used in Prof. Fagan’s study; also Streib says JDP sentencing is declining. So, why such different conclusions?

19. Strengths and Weaknesses Strengths: • Entire population for relevant period used • Multivariate analysis to buttress descriptive analysis observations and control for other factors (such as juveniles vs. 18-24 yrs) • Exclusion of resentences • Tested robustness using alternate assumptions Weaknesses: • “[A] statistically reliable analysis of the preferences of prosecutors is probably beyond the capability of social science.” Prosecutorial discretion is a factor in JDP, but difficult to gather data on this aspect. • Is decline in JDP sentences really evidence of an evolving standard that opposes all JDP? Perhaps just an evolving standard that heavily disfavors JDP while retaining it for rare occasions?

20. Other Approaches? Improvements? Brain scans: • Perform scans specifically on groups of juvenile offenders to determine if, as a group, their brain development tracks that of other adolescents Establishing Consensus: • Polls? (though problematic)