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(1)A New Approach to Juvenile Justice in the United States. A New Approach to Juvenile Justice in the United States Shawn Huizenga*. Introduction. Juvenile justice in the United States has changed significantly in recent years. Through the 1980s and 1990s, a“get tough”approach held sway and many states adopted measures which increasingly treated juvenile offenders as adults. Perhaps the most controversial example of this was the retention of the juvenile death penalty. While rarely imposed on the youngest offenders, as of 1989, there were still 19 states which did not set a minimum age on capital punishment. However, following a shift in the United States Supreme Court’s approach to execution in cases involving diminished capacity adult defendants, the Court similarly concluded that execution of offenders who were under 18 years of age at the time of their offense violated. ＊ Associate Professor, Faculty of Law, Kinki University, Higashi-Osaka, Japan See e.g. Georgia SB 440, enacted in 1994, which allows juveniles aged 13 to 17 to be charged as adults for the crimes of murder, armed robbery with a firearm, rape, voluntary manslaughter, aggravated sexual battery, aggravated sodomy and aggravated child molestation. Stanford v. Kentucky, 492 U.S. 361, 371 n.3（1989）. ─ ─ １.

(2) 近畿大学法学第６２巻第２号. the. Eighth. Amendment’s. prohibition. on. cruel. and. unusual. punishment. The catalysts for change were the Supreme Court’s decisions in Atkins v. Virginia and Roper v. Simmons. This article will first consider a number of background cases noting how the Supreme Court’s Eighth Amendment evolving standards of decency analysis for mentally retarded adults in Atkins v. Virginia influenced the result in Roper v. Simmons. The article will then consider the Roper decision and some of the main issues in that case, including the national consensus debate, the qualitative differences between juvenile and adults, and the degree to which the Court would consider international opinion in its analysis. Finally, this article shall close by arguing that the Roper decision represents a fundamental change in juvenile justice which has already proven significant beyond the immediate issue of the juvenile death penalty.. Background The Eighth Amendment to the United States Constitution provides “Excessive bail shall not be required, nor excessive fines imposed, nor Most recent Eighth cruel and unusual punishments inflicted. ”. Amendment litigation has concentrated on the Cruel and Unusual Punishment. Clause. As. noted. below,. the. Supreme. Court’s. Atkins v. Virginia, 536 U.S. 304（2002）. Roper v. Simmons, 543 U.S. 551（2005）. U.S. CONST. AMEND. VIII. However, regarding the Excessive Bail and Excessive Fine Clauses see e.g. U.S. v. Salerno, 481 U.S. 739（1987）（excessive bail）; U.S. v. ─ ─ ２.

(3) A New Approach to Juvenile Justice in the United States. interpretation of this clause and the manner in which the Court has applied its own judgment to sentencing challenges is an ongoing issue in juvenile justice and Eighth Amendment analysis in general.. Thompson v. Oklahoma. In its cruel and unusual punishment analysis, the Supreme Court often addressed methods of punishment. Recent Eighth Amendment cases have focused on the issue of proportionality and excluding certain classes of offenders. Beginning in the 1980s, the Supreme Court considered a number of challenges to the death penalty based on age and mental development of the defendant. The first of these cases, Thompson v. Oklahoma, involved a challenge to the imposition of the death penalty against a juvenile offender tried as an adult and convicted of first degree murder. The defendant, William Wayne Thompson, was Bajakajian, 524 U.S. 321（1998）（excessive fines）. See e.g. Wilkerson v. Utah, 99 U.S. 130（1879）（execution by firing squad not cruel and unusual punishment under the Eighth Amendment）; Baze v. Rees, 553 U.S. 35（2008）（lethal injection not cruel and unusual punishment under the Eighth Amendment） . See e.g. Coker v. Georgia, 433 U.S. 584（1977）（execution disproportionate for the crime of raping an adult woman）; Kennedy v. Louisiana, 554 U.S. 407（2008）（execution disproportionate for the crime of raping a child ） ; Atkins v. Virginia, 536 U.S. 304（2002）（ discussed infra, executing mentally handicapped individual constitutes cruel and unusual punishment） . See Thompson, 487 U.S. 815; Stanford, 492 U.S. 361; Penry v. Lynaugh, 492 U.S. 302（1989）; Atkins, 536 U.S. 304; Roper, 543 U.S. 551 discussed infra. Thompson, 487 U.S. 815（1988）. ─ ─ ３.

(4) 近畿大学法学第６２巻第２号. 15 years old at the time of his offense. Thompson’s sentence was unusual but not unknown. The Thomson Court cited statistics indicating that between 18 and 20 persons under the age of 16 were executed in the United States during the first half of the 20th century. It also noted, however, that no such execution of an under-16 offender had taken place since 1948 despite the fact that thousands of murder cases were tried during that period, and that only 5 of the 1,393 persons sentenced to death for willful homicide during the years 1982 through 1986 were less than 16 at the time of the offense. In Thompson, a plurality of the Supreme Court held that execution of juvenile offenders aged 15 years or younger at the time of their offense would constitute a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. The plurality grounded its opinion in the“ evolving standards of decency test ” developed in Trop v. Dulles. In this frequently cited decision, the Trop Court indicated it would consider societal developments as well as looking to its own independent judgment to determine what constituted cruel and unusual punishment. Chief Justice Warren noted in Trop, “The［Eighth］Amendment must draw its meaning from the evolving. Thompson was tried as an adult under Okla. Stat. Tit. 10 §1112 （1981）Thompson, 487 U.S., at 819. Thompson, 487 U.S., at 833. Id. Id. Trop v. Dulles, 356 U.S. 86（1958）. ─ ─ ４.

(5) A New Approach to Juvenile Justice in the United States standards of decency that mark the progress of a maturing society.” . Similarly, in Thompson, the plurality decided that contemporary standards of decency as reflected in legislative enactments and jury determinations“confirm our judgment that such a young person is not capable of acting with the degree of culpability that can justify the ultimate penalty.” The Thompson Court noted that executing juveniles who were under the age of 16 at the time their crimes were committed would offend civilized standards of decency. This view, said the plurality, was supported by“respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community.” Moreover, considering both the state of legislation as well as actual imposition of the juvenile death penalty, the Thompson plurality reasoned, the extreme infrequency of the practice was evidence that“the imposition of the death penalty on a 15-year-old offender is now generally abhorrent to the conscience of However, the manner in which the plurality the community. ”. concluded a national consensus against the practice and the Court’s reliance on its independent judgment in Eighth Amendment cruel and unusual punishment analysis was the subject of continuing criticism well beyond Thompson. Id. at 102. Thompson, 487 U.S., at 822, 823. Id. at 830. Id. Id. at 832. In Justice O’Connor’s Thompson concurrence, for example, she argued ─ ─ ５.

(6) 近畿大学法学第６２巻第２号. Thus, Thompson was significant but narrow. It was a significant decision for abolishing the juvenile death penalty for offenders under age 16 and outlining the rationale for doing so. However, Thompson was a narrow decision in that so few cases involved states seeking the death penalty against 15-year-old defendants.. Stanford v. Kentucky. One year after Thompson, the Supreme Court handed down its decision in Stanford v Kentucky. Stanford and its companion case of Wilkins v. Missouri considered the constitutionality of the death penalty for juveniles aged 16 and 17 years old at the time for their offenses - the gap. years. not. covered. by. Thompson. Applying. the. same. that while a national consensus against the execution of juveniles for crimes committed under the age of 16 likely existed, the number of states（and federal government）without a minimum age limit for the death penalty suggests that the matter had not been given full consideration. In O’Connor’s view, no such conclusion of constitutional law should be made without better evidence. However, she agreed the defendant’s death sentence in Thompson should nonetheless be overturned because Oklahoma did not set a minimum age for execution and it was not clear that in allowing juveniles to be tried as adults Oklahoma also meant to render 15-year-olds death penalty eligible. Thompson, 487 U.S., at 848857（O’Connor, J. concurring）. Stanford v. Kentucky, 492 U.S. 361（1989）. Wilkins v. Missouri, 492 U.S. 361（1989）. Kevin Stanford was charged with the crimes of rape and murder committed at the age of 17 years 4 months; Heath Wilkins was charged with the crimes of robbery and murder committed at the age of 16 years 6 months. Stanford’s case was transferred for trial as an adult under Ky. Rev. Stat. Ann. §208.170. Missouri juvenile court transferred ─ ─ ６.

(7) A New Approach to Juvenile Justice in the United States. “contemporary standards of decency”test developed in Trop, the Stanford Court found that the Eighth and Fourteenth Amendments did not prohibit the execution of juvenile offenders who were over 15 at the time of their offenses. Writing for the plurality in Stanford, Justice Scalia first noted that such a practice was not cruel and unusual at the time of founding. “At that time, the common law set the rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted capital punishment to be imposed on anyone over the age of 7.” The Court further argued that of the 37 states that authorized the death penalty, 22 states permitted its use for 16-year-olds and 25 states authorized its use for 17-year-olds. The Stanford Court also held the relative infrequent imposition of the death penalty on 16- and 17-year-olds did not establish a national consensus against the practice. In the Court’s view, the infrequent use of the juvenile death penalty could be explained by the smaller. Wilkin’s case for trial as an adult under Mo. Rev. Stat.§211.071. Stanford, 492 U.S., at 365, 367. Stanford, 492 U.S. at 371, 372. Id. at 368. The Stanford Court criticized the dissent for not counting among states that authorized the punishment for 16- and 17-year olds those states that did not set a minimum age requirement in their respective statutes. Stanford v. Kentucky, 492 U.S. 361, 371 n.3（1989）. In Stanford, the Court noted from 1982 through 1988 out of 2,106 total death sentences, only 15 were imposed on individuals who were 16 or under when they committed their crimes and only 30 on individuals who were 17 at the time of the crime. Stanford, 492 U.S., at 373. ─ ─ ７.

(8) 近畿大学法学第６２巻第２号. percentage of capital crimes committed by individuals under 18 . However, even if such a discrepancy between juvenile and adult offenders did exist, the Stanford Court argued, that did not establish a national consensus that the death penalty should never be used against juveniles. In the Court’s view, it meant that there was consensus among prosecutors and juries that the penalty should only be used in selected cases. Moreover, the Stanford plurality strongly rejected the idea that the Court should substitute its own judgment in place of the legislature on the question of whether penological goals justify the juvenile death penalty. In response to petitioner’s（and the dissent’s）claims that the psychological and emotional development of 16- and 17-year olds renders them less mature and less blameworthy, the Stanford plurality noted that such“socioscientific evidence”was irrelevant to the“evolving standards of decency”test. In language which echoed earlier criticism of Trop, Justice Scalia argued,“［O］ur job is to identify the‘evolving standards of decency’; to determine, not what they should be, but what they are. We have no power under the Eighth Amendment to substitute our belief in the scientific evidence for the society’s apparent skepticism.”. Stanford, 492 U.S., at 374. Id. Id. at 377, 378. Id. at 378. As noted above at n.２１, Justice O’Connor agreed that no national consensus barred the imposition of capital punishment on offenders above 15 years of age. Her concurrence nonetheless criticized the plurality for rejecting proportionality analysis as to the“ nexus between the punishment imposed and the defendant’s ─ ─ ８.

(9) A New Approach to Juvenile Justice in the United States. In a parallel development, on the same day the Supreme Court found there was no bar to execution of 16- and 17-year-olds in Stanford v. Kentucky, the Court similarly ruled in the case of Penry v. Lynaugh that the Eighth Amendment did not prohibit the execution of the mentally retarded. The Penry Court noted that while Georgia and Maryland had disallowed the practice, “ the two state statutes prohibiting execution of the mentally retarded, even when added to the 14 States that have rejected capital punishment completely, do not provide sufficient evidence at present of a national consensus.” Thus, the Supreme Court’s Stanford decision appeared to draw the line on the juvenile death penalty at 16 years or older. The Stanford Court also minimized the importance of what it termed“socioscientific evidence”related to juvenile psychological and emotional development in considering culpability. Moreover, it rejected infrequent use of the punishment as evidence against the practice. This approach to national consensus was true for both juvenile and mentally retarded offenders alike. However, as discussed below, it was not to last.. Atkins v. Virginia. The Supreme Court announced a significant reversal when it revisited these issues in the case of Atkins v. Virginia. In Atkins, the. blameworthiness.” Stanford, 492 U.S. at 382（O’Connor, J. concurring）. Penry v. Lynaugh, 492 U.S. 302（1989）. Penry, 492 U.S., at 334. Atkins, 536 U.S. at 304. ─ ─ ９.

(10) 近畿大学法学第６２巻第２号. Court found that executing the mentally retarded would constitute a violation of the Eighth Amendment prohibition on cruel and unusual punishment. In so holding, the Atkins Court emphasized several points which would later prove important in the abolition of the juvenile death penalty. First, in the years following the Penry decision, the Atkins Court found that a national consensus had developed against the practice. The Atkins majority explained that since 1999, at least 16 states followed Georgia and Maryland and passed legislation abolishing the practice of executing the mentally retarded. On this point regarding national consensus, the Atkins Court also stressed the direction of change. As Justice Stephens stated,. ［T］he large number of States prohibiting the execution of mentally retarded persons（and the complete absence of States passing legislation reinstating the power to conduct such executions）provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal. Id. at 314. In addition to Georgia and Maryland, Kentucky and Tennessee prohibited the practice in 1990. New Mexico did so in 1991. Arkansas, Colorado, Washington, Indiana, and Kansas passed legislation abolishing the practice between 1991 and 1992. New York did so in 1995. Nebraska followed in 1998. South Dakota, Arizona, Connecticut, Florida, Missouri, and North Carolina similarly prohibited the execution of the mentally retarded between 2000 and 2001. Atkins, 536 U.S., at 314, 315. Atkins, 536 U.S., at 316. ─ ─ １０.

(11) A New Approach to Juvenile Justice in the United States. Second, the Atkins Court also emphasized that traditional penological justifications and characteristics of the defendants are significant factors in gauging the culpability of the offender. As the Atkins Court noted, the“relationship between mental retardation and penological purposes served by the death penalty justifies the conclusion that it should be forbidden under the Eighth Amendment.”. Moreover, the Court stated,“Unless it can be shown that executing the mentally retarded promotes the goal of retribution and deterrence, doing so is ‘ purposeless and needless imposition of pain and suffering.’ ” Mental retardation（although left up to the states to define）means that the person not only has subaverage intellectual functioning but also significant limitations in adaptive skills such as communication, self-care and self-direction. Such deficiencies, said the Atkins Court, do not warrant an exemption from criminal sanctions, but they do diminish personal culpability. Although criticized by the dissent for substituting its personal views into the decision, the Atkins Court reasserted its role in Eighth Amendment analysis. “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.”. Id. at 317. Id. at 319. Id. at 318. Id. In Justice Scalia’s words, “Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members.” Atkins, U.S., 536 at 338（Scalia, J. dissenting）. Atkins, 536 U.S., at 312（citing Coker, 433 U.S., at 597）. ─ ─ １１.

(12) 近畿大学法学第６２巻第２号. Finally, in noting a consensus against the execution of the mentally retarded, the Atkins Court also referenced international opinion against the practice. Citing an amicus brief from the European Union, the Atkins Court stated,“［W］ ithin the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.” This citation was sharply criticized. in the dissent as“the Court’s most feeble effort to fabricate‘national consensus.’ ” However, as discussed below, the Court would later. return to international opinion as a reference point in evaluating what constitutes cruel and unusual punishment. Accordingly, by emphasizing the importance of national consensus in the interpretation of what constitutes cruel and unusual punishment, the importance of considering traditional penological justifications in relation to the characteristics of the offender, and its willingness to assert its judgment and reference international opinion on the subject, the Atkins Court set the stage for reconsideration of the use of capital punishment for other similarly less culpable juvenile offenders.. Roper v. Simmons In Roper v. Simmons, a 54 majority of the Supreme Court found the imposition of the death penalty on offenders under age 18 at the time their crimes were committed constituted a violation of the Eighth. Atkins, 536 U.S., at 316 n. 21. Id. at 347（Scalia, J. dissenting） . ─ ─ １２.

(13) A New Approach to Juvenile Justice in the United States. and Fourteenth Amendments to the United States Constitution. Relying on the reasoning in Atkins, the Roper decision explicitly overruled the result in Stanford v. Kentucky, decided only 15 years earlier, which had held the imposition of the death penalty on offenders 16 or above to be constitutional.. Facts and Procedural Background. The defendant in the case, Christopher Simmons, was 17 years old at the time he committed murder. As the Roper majority noted, there was little doubt of his guilt. Before he committed his crime, he discussed his plan in detail with friends, assured his co-conspirators that they could“get away with it”because they were minors, and bragged about having tied us his victim and thrown her from a bridge into a river because she had“seen my face.” Even after considering. the mitigating factors of Simmons’ age and lack of criminal history, the jury found the State had established each of the three aggravating factors to warrant the death penalty. The judge accepted the jury’s. Justice Kennedy wrote the majority opinion. He was joined by Stevens, Souter, Ginsburg, and Breyer, JJ. Justice Stevens filed a concurring opinion in which Justice Ginsburg. Justices O’Connor and Scalia filed dissenting opinions. Justice Scalia was joined by Chief Justice Rehnquist and Justice Thomas. Roper, 543 U.S., at 556. Id. at 557. The aggravating factors submitted by the state: the murder was committed for the purpose of receiving money; was committed for the purpose of avoiding arrest; and involved depravity of mind and ─ ─ １３.

(14) 近畿大学法学第６２巻第２号. recommendation. Thereafter, Simmons obtained new counsel and argued to set aside the sentence based, in part, on the argument that Simmons was“very immature, very impulsive, and very susceptible to being manipulated or influenced.” The trial court denied the. motion and the Missouri Supreme Court subsequently upheld the death sentence. Following the Missouri Supreme Court proceedings, the United States Supreme Court handed down its decision in Atkins v. Virginia which held that execution of mentally retarded individuals was prohibited under the Eighth and Fourteenth Amendments. Simmons filed a new motion for post conviction relief, arguing that the same rationale outlined in Atkins also applied to bar the execution of juveniles who were under the age of 18 when their crimes were committed. The Missouri Supreme Court reasoned that a“national consensus”had developed against the execution of juvenile offenders, overturned Simmons’ death sentence and resentenced him to life imprisonment without the possibility of probation or parole.. was outrageously and wantonly vile, horrible, and inhuman. Roper, 543 U.S., at 557. Id. at 558. Id. at 559. Id. Atkins, 536 U.S., at 304. Id. at 559, 560. Id. at 560（citing State ex rel. Simmons v. Roper, 112 S.W. 3d 397, 413（2003）（en banc））. ─ ─ １４.

(15) A New Approach to Juvenile Justice in the United States. The Supreme Court’s Roper Decision Thereafter, the United States Supreme Court upheld the Missouri high court decision. The Roper majority agreed the imposition of the death penalty on offenders under age 18 at the time their crimes were committed was so disproportionate a punishment as to constitute a violation of the Eighth and Fourteenth Amendments to the United States Constitution. “Our determination that the death penalty is disproportionate punishment for offenders under 18 finds confirmation in the stark reality that the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” The Supreme Court grounded its decision in Roper on three main points. First, the Roper Court held a national consensus had developed against the juvenile death penalty since it had last considered the issue. Second, the qualitative differences between juveniles under 18 and adults were so significant that, as a class, juveniles could not be classified as the worst offenders. Finally, although not dispositive as to the interpretation of the Eighth Amendment, the Court noted the view that the juvenile death penalty is disproportionate punishment for offenders under the age of 18 is supported throughout the. Roper, 543 U.S., at 575. Id. at 564. Id. at 569. ─ ─ １５.

(16) 近畿大学法学第６２巻第２号. international legal community. Relying heavily on its reasoning in Atkins, the Roper Court stated, under the“ evolving standards of decency ”test used in Eighth Amendment analysis, a national consensus had developed against the practice since it last considered the issue. At the time Atkins was decided, 30 States prohibited the death penalty for the mentally retarded, including 12 that had abolished the death penalty completely and another 18 that kept it but prohibited execution of the mentally retarded. Similarly, the Roper Court noted, 30 states prohibited the imposition of the death penalty on juvenile offenders, which included 12 states that had abolished the penalty entirely and 18 which maintained it but prohibited its use on juveniles. The Roper Court recognized the official abolition of the juvenile death penalty had proceeded at a slower pace than that of the mentally retarded. However, the majority emphasized,“It is not so much the number of these States that is significant, but the consistency of the direction of the change. ” As in Atkins, with respect to the mentally retarded, no state which had abolished the juvenile death. Id. at 575. Id. at 567. See infra regarding the Roper dissent’s challenge to the majority’s calculation of a national consensus against the practice. Id. at 564. Id. From Penry to Atkins 16 additional states had abolished the death penalty for the mentally retarded. From Stanford to Roper, five states had abolished the juvenile death penalty - four through legislation and one by court decision. Roper, 543 U.S., at 565. Roper, 543 U.S., at 566（citing Atkins, 536 U.S., at 315）. ─ ─ １６.

(17) A New Approach to Juvenile Justice in the United States. penalty had since reinstated it since the Court considered the issue in Stanford. Moreover, the Court reasoned, the slower rate of abolition of the juvenile death penalty can be explained by the higher number of states that had already banned the practice.. When we heard Stanford, by contrast, 12 death penalty States had already prohibited the execution 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.. Second, the Roper Court argued, the qualitative differences between juveniles under 18 and adults were so significant that, as a class, juveniles could not be classified as the worst offenders. In reaching this conclusion, the Roper Court emphasized three important differences between juveniles and adults. First, the Court said, scientific and sociological studies（as well as the general experience of parents） confirm a lack of maturity and an underdeveloped sense of among the young resulting in“ impetuous and ill -considered actions and Second, the Court recognized, juveniles are more decisions. ”. Roper, 543 U.S., at 566. Id. at 566, 567. Id. Id. at 569（citing Johnson v. Texas, 509 U.S. 350, 367（1993））. ─ ─ １７.

(18) 近畿大学法学第６２巻第２号. susceptible and vulnerable to negative influences and outside pressures beyond their control. Last, unlike adults, juveniles have not had the opportunity to fully develop their own character. Thus, reasoned the Roper Court, it follows that juveniles’ susceptibility to immature and irresponsible behavior and their relative lack of control over their immediate surroundings renders their conduct less morally reprehensible than that of adult offenders. In addition, because juveniles have not completely established their own identities, it is“less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably deprived character.” Relying on its decision in Thomson, the Roper Court found that once diminished culpability of juveniles is recognized, the penological justifications for the death penalty of deterrence and retribution apply to juveniles with less strength than adults. While the Court recognized that criminal sentencing is an area normally left to the various state legislatures（and that a central feature of death penalty sentencing is individual consideration of the crime and characteristics of the offender）, the Court found the differences between adult and juveniles too striking to risk the imposition of the death penalty on a less culpable juvenile offender. Finally, in support of the abolition of the juvenile death penalty Roper, 543 U.S., at 569. Id. at 570. Id.（citing Thompson, 487 U.S., at 835） . Roper, 543 U.S., at 570. Id. at 571. Id. at 572. ─ ─ １８.

(19) A New Approach to Juvenile Justice in the United States. as a disproportionate punishment, the Court noted that the United States was alone in the international community in sanctioning the practice. The Court was careful to recognize that foreign law was not controlling and that the ultimate responsibility for the interpretation of the Eighth Amendment fell to the Court. However, the Court stated, reference to the laws of other countries and international authorities was useful in interpreting the Eighth Amendment’s Cruel and Unusual Punishment Clause. The Roper Court added,“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.”. Moreover, the Court reasoned,“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.” Thus, although not controlling, the Court found world opinion provided“respected and significant confirmation”for its conclusions. Only seven other nations other than the United States have imposed the death penalty against juvenile offenders since 1990. Those countries are Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Roper, 543 U.S., at 577. Roper, 543 U.S., at 575. Id. at 578. Id. at 575. Id. at 578. Id. ─ ─ １９.

(20) 近畿大学法学第６２巻第２号. Dissent The four Justice Roper dissent raised a number of points worth noting. Writing separately, Justices O’Connor and Scalia both criticized the manner in which the majority found a national consensus to have developed against the juvenile death penalty in the relatively short period following Stanford v. Kentucky. Unlike the situation leading to Atkins where there was significant evidence of opposition to the practice of executing mentally retarded defendants, Justice O’Connor noted many states had indicated commitment to the juvenile death penalty by maintaining the death penalty for 16- and 17-year-old offenders, and at least two expressly reaffirmed their support by enacting statutes establishing the minimum age for capital punishment at 16 years. The dissenting opinions also criticized the method by which the Roper Court calculated the“national consensus.” Justice Scalia and his fellow dissenters argued that unlike previous challenges, in which overwhelming opposition to a specific punishment was required to establish a national consensus against the practice, no such evidence supported the Roper decision. They argued that not only did less than Id. at 588, 609（O’Connor, J. and Scalia, J. dissenting）. Id. at 596, 597（O’Connor, J. dissenting）. Justice Scalia cited Coker v. Georgia, 433 U.S. 584 , 595（1977）; Ford v. Wainwright, 477 U.S. 399, 408（1986）; and Enmund v. Florida, 458 U.S. 782（1982）as past examples of what was required to establish a national consensus against a specific punishment. He noted at the ─ ─ ２０.

(21) A New Approach to Juvenile Justice in the United States. 50％ of death penalty states oppose the juvenile death penalty, unlike in Roper, none of the previous Supreme Court decisions which found a constitutional prohibition based on a national consensus ever counted states which had eliminated the death penalty entirely. The dissents also challenged the categorical exemption of 17-yearolds from capital punishment on the grounds that they cannot be considered as blameworthy as adults. It is true, they agreed, that time of the Coker decision barring the practice, only one jurisdiction authorized the death penalty for rape of an adult woman and that at no point in the last 50 years had a majority of states authorized such a punishment. In Ford, the Court concluded that no state allowed execution of the insane with such a prohibition dating back to the common law. In Enmund, the Court prohibited the death penalty for participation in a robbery in which an accomplice committed the murder because 78％ of all states which authorized capital punishment banned it in such cases. Roper, 543 U.S. at 609, 610 （Scalia, J. dissenting） . Roper, 543 U.S., at 609, 610（Scalia, J. dissenting）. The dissent argued that counting the 12 states which were against the death penalty in all circumstances shed no light on the factors which the Roper Court evidenced a national consensus against the juvenile death penalty specifically（i.e. lower culpability of the young, inherent recklessness, lack of capacity for considered judgment, etc.） . On the contrary, Justice Scalia argued, what might have been more relevant would have been to consider whether the states that prohibited executions in all cases nonetheless permitted 16- and 17-year old offenders to be charged as adults with respect to noncapital offenses. He noted that in fact all 12 did（the District of Columbia was the only jurisdiction without a death penalty that specifically exempted under18 offenders from its harshest sanction - life imprisonment without parole）. Moreover, he added, 3 of the 12（Massachusetts, North Dakota, and West Virginia）required juveniles as young as 14 to be tried as adults when charged with murder. Roper, 543 U.S., at 598, 599（O’Connor, J. dissenting） ─ ─ ２１.

(22) 近畿大学法学第６２巻第２号. juveniles are generally less culpable for their misconduct. However, they argued, it does not follow that juveniles are always less culpable than adults, especially at the margin between adolescence and adulthood （ as the defendant in Roper ） . Such determinations, the dissent argued, are better suited to a case by case determination rather than the categorical exclusions based on the personal opinions of judges which deny the elected representatives in state legislatures their traditional role in establishing sentencing policy. Finally, Justice Scalia’s dissent strongly criticized the Roper Court’s reliance on the views of the international community to shed light on. American. Constitutional. interpretation. Citing. distinctly. American legal principles such as the right to trial by jury, the grand jury indictment, and the exclusionary rule, Justice Scalia rejected the significance of international opinion. He asserted“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.”. Comment The result in Roper feels intuitively correct. It is not difficult to argue the death penalty should not apply to juvenile offenders. In fact, Id. Id. Id. Id. Id. Id.. at at at at at. 599. 599, 600. 615617（Scalia, J. dissenting） . 622628（Scalia, J. dissenting） . 624（Scalia, J. dissenting） .. ─ ─ ２２.

(23) A New Approach to Juvenile Justice in the United States. in December 2003, prior to the Supreme Court’s Roper decision, the Governor of Kentucky decided to spare the life of Kevin Stanford, and commuted his sentence to life imprisonment without parole, stating “‘We ought not be executing people who, legally, were children.’”. At the same time, however, it is difficult to deny the dissent’s argument that the manner in which the Roper Court found a national consensus against the practice was flawed. As Justice O’Connor noted, at the time Roper was decided, 38 states authorized capital punishment and at least seven states had statutes which expressly set 16 or 17 as the minimum age for which commission of a death penalty offense exposed the offender to such punishment. Counting Simmons’ case in Missouri, six of the seven states had one or more juvenile offender on death row and, as Justice O’Connor further noted, four of those states had executed at least one under-18 offender within the last 15 years prior to Roper. Moreover, in 2005 , there were 70 juvenile offenders on death row in 12 other states. This suggests continuing public support for the practice at the time Roper was decided. After the decision in Stanford, the states of Missouri and Virginia,. Id. at 565（citing Lexington Herald Leader, Dec. 9, 2003, p B3, 2003 WL 65043346）. Heath Wilkins similarly avoided the death penalty as a result of the Roper decision. Id. at 595, 596（O’Connor, J. dissenting）. Id. at 596. In the 12 other states that had capital punishment, under-18 offenders were subject to the death penalty as a result of transfer statutes that permitted juvenile offenders to be tried as adults for certain serious crimes. Roper, 543 U.S., at 596（O’Connor, J. dissenting）. Id. ─ ─ ２３.

(24) 近畿大学法学第６２巻第２号. which did not have a minimum age requirement for the death penalty at that time, expressly reaffirmed support for the practice by enacting statutes which established 16 as the minimum age for capital punishment in 2000 and 2004 respectively. In addition, in the same period following Stanford, the voters of Arizona and Florida similarly contemplated the possibility of juvenile offenders being subject to the death penalty by passing ballot initiatives which exposed 16- and 17year old offenders to capital punishment. This undercuts the Roper Court’s reliance on the“ consistency of the direction of change ” argument emphasized in Atkins. As Justice Scalia insisted,“Words have no meaning if the views of less than 50％ of death penalty States can constitute a national consensus. The Roper decision nonetheless represents a fundamental change in approach to juvenile justice in the United States. The most immediate effect of Roper was its explicit rejection of the Stanford See Mo. Rev. Stat. §565.020.2（2000） ; Va. Code Ann. §18.210 （2004）Roper, 543 U.S., at 596. In 1996, Arizona’s Ballot Proposition 102 exposed under-18 murderers to the death penalty by automatically transferring their cases out of juvenile courts to prosecuted in the same manner as an adult if the juvenile was fifteen, sixteen or seventeen years of age. Ariz. Rev. Stat. Ann. §13501（2001）. Similarly, in 2003, voters in Florida approved an amendment to the state constitution changing the wording from“cruel or unusual”to“cruel and unusual”in response to a Florida Supreme Court ruling which held the former prohibited the death penalty for offenders who committed murder when under 17 years of age. Fla. Const., Art. I, §17（2003）. Roper, 543 U.S., at 614 n.5, 6（Scalia, J. dissenting）. Roper, 543 U.S., at 566, 567. Id. at 609（Scalia, J. dissenting） . ─ ─ ２４.

(25) A New Approach to Juvenile Justice in the United States. decision and categorical prohibition of the death penalty for offenders under 18 years old. In Stanford, the Court rejected the idea that it should substitute its own judgment in place of state legislatures on the issue of whether penological goals justify use of the juvenile death penalty. The Stanford Court also gave little weight to what it termed “socioscientific evidence”regarding the psychological and emotional development of 16- and 17- year olds and no consideration of international opinion in Eighth Amendment“evolving standards of decency”analysis. In Roper, the Court changed course, showing a willingness to exercise its own independent judgment on whether penological goals justified the penalty and to apply an arguably weaker standard when considering whether a national consensus against a specific punishment had developed. In contrast to Stanford, the Roper Court also showed a willingness to consider international opinion as part of its Eighth Amendment analysis. More importantly, however, the Roper Court held that the qualitative differences between adults and juveniles were so significant that, as a class, juveniles could not be classified as the worst offenders deserving of the most severe punishment. According to the Court, research confirmed a lack of maturity among the young, that juveniles Id. at 575. Stanford, 492 U.S., at 377, 378. Id. Roper, 543 U.S., at 572. Id. at 577. Id. at 571573. ─ ─ ２５.

(26) 近畿大学法学第６２巻第２号. are more susceptible and vulnerable to negative influences outside their control, and that, as juveniles, they have not yet had the opportunity to develop their own characters. In reaching this conclusion, the Roper Court was also far more willing than the Stanford Court to rely on scientific and sociological studies regarding the psychological and emotional development of 16- and 17-year-olds. In short, the Court held that when considering criminal culpability and punishment, age matters. This fundamental change in juvenile justice has already proven significant beyond the immediate issue of the juvenile death penalty. For example, the effects of Roper are evident in the recent Supreme Court cases of Graham v. Florida, Miller v. Alabama, and J.D.B. v. North Carolina. A detailed discussion of these cases is beyond the scope of this article. However, it is worth noting, in Graham v. Florida the Supreme Court followed the reasoning in Roper, holding the qualitative differences between juveniles and adults were so significant that, as a class, juveniles could not be classified as the worst offenders deserving “the second most severe penalty”of life without the possibility of parole for non -homicide offenses. The Graham Court tracked Roper in applying an arguably less stringent standard regarding the national Id. at 570. Id. at 569, 570. Graham v. Florida, 560 U.S. 48（2010） . Miller v. Alabama, 132 S. Ct. 2455（2012）. J.D.B. v. North Carolina, 131 S.Ct. 2394（2011）. Graham, 560 U.S., at 71, 72. ─ ─ ２６.

(27) A New Approach to Juvenile Justice in the United States. consensus against the punishment as well as in its willingness to consider international practice in its evolving standard of decency analysis. Similarly, in Miller v. Alabama, the Supreme Court extended the reasoning of Roper and Graham holding that even in homicide cases the characteristics of juvenile defendants led to conclusions that mandatory life in prison without the possibility of parole violated the Eighth Amendment. The Miller Court emphasized,“Roper and Graham establish that children are constitutionally different from adults for purposes of sentencing.” As in both of those previous cases, the Miller Court applied an apparently weaker standard in finding a national consensus against the practice but placed greater emphasis on international views against sentencing juveniles to mandatory life without the possibility of parole. In both Graham and Miller, the Court returned to the reasoning in Roper on the distinctive character of juvenile offenders. If anything, the Court argued, in the time since Roper was decided, additional scientific research only strengthens the conclusion that juveniles are less mature, more vulnerable to negative influences and lacking in the opportunity to develop their own characters. Finally, in J.D.B., the Supreme Court revised the traditional approach to custodial interrogations to consider how a suspect’s age Id. Miller, 132 S.Ct., at Id. at 2464. Id. Graham, 560 US., at 71, 72; Miller 132 S.Ct., at 2455. ─ ─ ２７.

(28) 近畿大学法学第６２巻第２号. would inform the“in custody”analysis under Miranda v. Arizona. Writing for the J.D.B. majority, Justice Sotomayor noted, a reasonable child subjected to police questioning will sometimes feel compelled to submit and answer questions where a reasonable adult would feel free to leave. Citing Roper, the Court emphasized that children are less mature and responsible than adults and more vulnerable or susceptible to outside pressures than adults. Accordingly, said the Court,“In many cases involving juvenile suspects, the custody analysis would be nonsensical absent some consideration of the suspect’s age.”. Thus, in Graham, Miller, and J.D.B. the Supreme Court continues to follow the commonsense notion announced in Roper v. Simmons, that in criminal prosecutions involving juvenile offenders, age matters.. Miranda v. Arizona, 384 U.S. 436（1966）. J.D.B. 131 S.Ct., at 2403. Id. at 2403, 2404. Id. at 2405. ─ ─ ２８.

(29)