Capital Jurors as the Litmus Test of Community CONSCIENCE FOR THE JUVENILE DEATH PENALTY
Antonio, Michael E., Fleury-Steiner, Benjamin D., Hans, Valerie P., Bowers, William J., Judicature
This fall, the United States Supreme Court will consider the constitutionality of the juvenile death penalty in Simmons v. Roper.1 The Eighth Amendment issue before the Court in Simmons will be whether the juvenile death penalty accords with the conscience of the community. This article presents evidence that bears directly on the conscience of the community in juvenile capital cases as revealed through extensive in-depth interviews with jurors who made the critical life-or-death decision in such cases. The data come from the Capital Jury Project, a national study of the exercise of sentencing discretion in capital cases conducted with the support of the National Science Foundation.
On August 26, 2003, the Missouri Supreme Court declared in Simmons v. Roper that the execution of persons younger than 18 at the time of their crime violates the Eighth and Fourteenth Amendments of the United States Constitution. Applying the U.S. Supreme Court's reasoning in Atkins v. Virginia,2 which struck down the execution of the mentally retarded, the Missouri Supreme Court found that there was a national consensus against the death penalty for juveniles and ruled that juveniles could no longer be executed as a matter of federal constitutional law. In the court's words,
... a national consensus has developed against the execution of juvenile offenders, as demonstrated by the fact that eighteen states now bar such executions for juveniles, that twelve other states bar executions altogether, that no state has lowered its age of execution below 18 since Stanford, that five states have legislatively or by case law raised or established the minimum age at 18, and that the imposition of the juvenile death penalty has become truly unusual over the last decade. Accordingly, this court finds the Supreme Court would today hold such executions are prohibited by the Eighth and Fourteenth Amendments.
The U.S. Supreme Court twice refused to consider the constitutionality of the juvenile death penalty in the year since its Atkins ruling and prior to the Missouri court's Simmons decision. In the Court's denial of habeas corpus review in In re Stanford, however, four dissenting justices subscribed to the view that there appears to be a growing public consensus that the juvenile death penalty violates evolving standards of decency.3 They pointed to parallels between community sentiments about the acceptability of the death penalty for mentally retarded offenders, now found to violate the Constitution, and such sentiments about acceptability of capital punishment for juvenile offenders. Their Eighth Amendment arguments rested on state legislative trends and declining public support. Conspicuously absent, however, was any assessment of the behavior of capital juries in juvenile cases.
Chief Justice Rehnquist's dissenting opinion in Atkins suggests that the decision-making behavior of capital jurors is fundamental to an Eighth Amendment determination of community conscience. Joined by Justices Scalia and Thomas, he argued that the actions of state legislatures and capital juries are the most appropriate indicators for determining the community's evolving standards of decency. In particular, he wrote that the behavior of capital juries:
"is a significant and reliable objective index of contemporary values," because of the jury's intimate involvement in the case and its function of "maintaining a link between contemporary community values and the penal system."4
In accord with the concerns voiced by the dissenters in Atkins, this article reports recently developed evidence on the decision making of capital jurors.5 It provides direct evidence on the exercise of sentencing discretion by persons who have served as jurors in juvenile capital cases-the people who bring the community conscience to bear in practice and who express community sentiment in their thinking and decision making.
The Capital Jury Project
The CJP is a national program of research on the decision making of capital jurors conducted by a consortium of university-based researchers with the support of the National Science Foundation. …