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Death to the Ban on Juvenile Capital Punishment.pdf (99.81 kB)

Death to the Ban on Juvenile Capital Punishment

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posted on 2023-07-28, 19:05 authored by Brandon Galperin

Brutal and public executions have been a part of American history for centuries. This includes public hangings, the electric chair, firing squads, and lethal injections. However, as time has passed, America has slowly decreased the number of offenses for which the death penalty can be imposed. During the “Progressive Era” of the nineteenth century, states such as Michigan, Rhode Island, and Wisconsin abolished the death penalty for all crimes. Michigan, however, still imposed it for treason. Other states, along with foreign countries, were soon to follow. Additionally, states stopped executing criminals in the public eye and added discretionary death penalty statutes, which are statues created by each individual state. Today, adult capital punishment exists in 28 of the 50 states, and reforms for the death penalty are constantly being made. One particular debate among scholars involving the death penalty is whether or not it is constitutional for a juvenile under the age of eighteen to be executed. According to the decision made in Roper v. Simmons, the United States Supreme Court held in 2005 that the answer is “no.” This paper will argue that the ruling in Roper was wrong and, in fact, partly based on facts, premises, and statistics that were misleading to support the majority’s decision. Therefore, there should not be an arbitrary line drawn at age eighteen that categorically exempts all killers below that age from being subject to the death penalty.

In order to analyze this subject efficiently, one must look back to previous Supreme Court death penalty cases. In the 1972 case Furman v. Georgia, the Court ruled that carrying out the death penalty constituted cruel and unusual punishment, thus violating Furman’s Eighth Amendment rights. This decision was made on the grounds that the death penalty frequently had been imposed in an arbitrary and inconsistent manner. Additionally, a large number of death penalty statutes were ruled unconstitutional and had to be re-written by all of the pro-death penalty states in the country. For the next four years, the United States was a death penalty-free nation. In the 1976 case of Gregg v. Georgia, however, the Court approved Georgia’s reformed death penalty laws, which provided guidelines for the jurors to follow when considering the mitigating and aggravating factors of a capital crime during the sentencing process. The other pro-death penalty states soon constructed their own death penalty laws in the same way as Georgia, essentially reinstating the death penalty throughout the nation.

However, post-Gregg v. Georgia, the Court has carved out certain exceptions to the application of the death penalty. One example of this is Kennedy v. Louisiana (2008). In Kennedy, the appellant, Patrick Kennedy, was convicted of aggravated rape of his eight-year-old stepdaughter and was sentenced to death. The Court, however, ruled that the death penalty, in this case, was considered cruel and unusual punishment under the Eighth Amendment. Justice Kennedy, writing for the majority, explained that “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.’” In this case, the suspect did not kill the victim and, therefore, being sentenced to death was disproportionate to the crime and unconstitutional. Another example is Atkins v. Virginia (2002). In this case, Daryl Atkins was found guilty of capital murder and sentenced to death. However, the court struck down the sentence, and held that executing “mentally retarded” persons is considered cruel and unusual punishment because such persons “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” Furthermore, in Roper v. Simmons (2005), the Supreme Court struck down the death penalty for the seventeen-year-old defendant convicted of first-degree murder, holding categorically that no person who kills when he is below the age of eighteen can ever be put to death. That Roper was decided wrongly will now be examined in length.

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American University (Washington, D.C.); Juris Mentem Law Review


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