The Juvenile Death Penalty Prior to Roper v. Simmons

The death penalty for juvenile offenders was banned by the Supreme Court in 2005. See the Roper v. Simmons Resource Page for more information about the case.

This section includes excerpts from “The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes January 1973 - February 28, 2005” by Professor Victor L. Strieb. The report is a comprehensive review of the modern history of the death penalty in the United States as it relates to juvenile defendants. It also provides a snapshot of juvenile death row at the time Roper v. Simmons was decided, ending the death penalty for those under 18 at the time of the crime for which they were convicted. These excerpts are reprinted with permission.

OVERVIEW OF JUVENILE DEATH SENTENCES PRE-ROPER

As of February 28, 2005, the day before Roper v. Simmons was decided, 71 persons were on death row for juvenile crimes. These 71 condemned juvenile offenders constituted about 2% of the total death row population of 3,471. Although all were ages 16 or 17 at the time of their crimes, their ages range from 18 to 43 when Roper was decided. They were under death sentences in 12 different states and had been on death row from 6 months to 24 years. Texas had by far the largest death row for juvenile offenders, holding 29 (41%) of the national total of 71 juvenile offenders.

All of the juvenile offenders who were on death row at the time Roper was decided were male and had been convicted and sentenced to death for murder. The demographic characteristics of these juveniles and their victims are outlined in the table below.

More than three-quarters of these cases involved 17-year-old offenders, and two-thirds of them were offenders of color. By contrast, 81% of the victims were adults. More than two-thirds of the victims were white, and half were females.

CHARACTERISTICS OF OFFENDERS AND VICTIMS IN JUVENILE DEATH PENALTY CASES (As of February 28, 2005)

THE LEGAL CONTEXT OF THE JUVENILE DEATH PENALTY

United States

Before 2002, the federal constitutionality of the American juvenile death penalty was a reasonably well-settled issue. In Thompson v. Oklahoma, 487 U.S. 815 (1988), the United States Supreme Court held that imposing the death penalty for murders committed by a person who was younger than age 16 at the time of the offense constituted cruel and unusual punishment, in violation of the Eighth Amendment to the United States Constitution.

The next year, in 5-4 votes in the consolidated cases of Wilkins v. Missouri and Stanford v. Kentucky, 492 U.S. 361 (1989), the Court held that the Eighth Amendment does not prohibit the death penalty for murders committed at ages 16 or 17, respectively. Two state supreme courts subsequently interpreted their own state constitutions as setting higher minimum age requirements for imposing the death penalty. Using this state constitutional approach, the Washington Supreme Court set the minimum age at 18 (State v. Furman, 858 P.2d 1092 (Wash. 1993)), and the Florida Supreme Court set the minimum age at 17 (Brennan v. State, 754 So.2d 1 (Fla., 1999)).

In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court held that the United States Constitution prohibits the death penalty for mentally retarded offenders (now referred to as intellectually disabled), based upon reasoning closely analogous to the Court’s reasoning concerning juvenile offenders.

In In re Stanford, 537 U.S. 968 (2002), the United States Supreme Court decided not to reconsider the issue, over a strong dissent by Justice Stevens (joined by Justices Breyer, Ginsburg, and Souter). These four Justices not only wanted to revisit the juvenile death penalty issue but were ready to “put an end to this shameful practice” by declaring it unconstitutional. On December 8, 2003, the Kentucky Governor granted clemency to Kevin Stanford, changing his death sentence to life in prison without parole.

One year later, in Simmons v. Roper, 112 S.W.3d 397 (Mo. 2003), the Supreme Court of Missouri interpreted contemporary national data and held that the death penalty for juvenile offenders violates the United States Constitution’s prohibition against Cruel and Unusual Punishment, but it did not reach the issue under the Missouri State Constitution. On January 26, 2004, the United States Supreme Court granted certiorari (540 U.S. 1160), agreeing to hear the Simmons case, now styled as Roper v. Simmons. The U.S. Supreme Court (5-4) upheld the Missouri Supreme Court and banned the death penalty for juvenile offenders, Roper v. Simmons, 543 U.S. 551 (2005).

International

Imposing the death penalty on offenders who were younger than age 18 at the time of the murder for which they were charged is directly prohibited by international human rights law as expressed in the International Covenant on Civil and Political Rights (ICCPR), the U.N. Convention on the Rights of the Child, and the American Convention on Human Rights. The acceptance of this ban is so universal that it is widely recognized as a peremptory norm of customary international law.¹

The ICCPR was adopted by the United Nations General Assembly on December 16, 1966, and was ratified on March 23, 1976. Article 6(5) of the treaty states: “Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age.” The ICCPR has received almost universal endorsement, with 169 countries as parties to the treaty, including the U.S., which ratified the Covenant in 1992, but with certain reservations. The U.S. was one of only three countries which took substantive reservations to Article 6 (the others were Norway and Ireland). Those reservations became moot, however, when Norway and Ireland subsequently abolished the death penalty and the U.S. Supreme Court declared the execution of juvenile offenders to be unconstitutional.

¹ See Schabas, The Abolition of the Death Penalty in International Law 87 (1997) (quoting UN Human Rights Commission); but see Brief of the Solicitor General of the United States, Domingues v. Nevada, 528 U.S. 963 (1999), cert. denied (maintaining that the execution of juvenile offenders was not forbidden under customary international law).