543 U.S. 551 (2005), argued 13 Oct. 2004, decided 1 Mar. 2005 by vote of 5 to 4; Kennedy for the Court, Stevens concurring, O’Connor and Scalia in dissent. Reversing its prior decision in Stanford v. Kentucky (1989), the Supreme Court in Roper held that the death penalty was cruel and unusual punishment, and thus a violation of the Eighth Amendment, when inflicted on persons who were sixteen or seventeen years old at the time of the capital crime. The Court was asked to reconsider Stanford in light of Atkins v. Virginia (2002), in which the Court held that the death penalty could not be imposed on persons who are mentally retarded.
In deciding whether a particular punishment violates the Eighth Amendment, the Court looks to “evolving standards of decency that mark the progress of an evolving society” (Trop v. Dulles ). Informed by objective indicia of consensus, such as legislative enactments and jury determinations, the Court exercises its own independent judgment as to whether a punishment is disproportionate.
Following the decision in Stanford, the general movement among the states was for the abolition of the death penalty for those under eighteen years of age at the time of the capital crime. While this trend was not as dramatic as that against executing persons who are mentally retarded, the Court nonetheless determined that the development was significant. Consistent with this trend, the United States was one of only seven countries that had executed juveniles in the years since 1990.
In assessing proportionality, the Court found that neither of the penalogical justifications for the death penalty—retribution and deterrence—could justify inflicting the death penalty on juveniles. It rested this conclusion on three factors that distinguish juveniles from adults: juveniles’ lack of maturity, their vulnerability to outside influences, and the fact that their characters are not yet fully developed. Dissenting, Justice Antonin Scalia accused the majority of reaching an implausible result by invoking subjective views about capital punishment to interpret the Eighth Amendment.
Susan L. Kay