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Death penalty, Capital punishment, Eighth amendment, Community conscience, Capital Jury Project, CJP, Juvenile death penalty, Jury decisionmaking, Simmons v. Roper, Stanford v. Kentucky, Atkins v. Virginia, Capital jurors, Empirical legal studies


Criminal Law | Criminal Procedure | Fourteenth Amendment | Juvenile Law


As our analysis of jury decisionmaking in juvenile capital trials was nearing completion, the Missouri Supreme Court declared the juvenile death penalty unconstitutional in Simmons v. Roper. The court held that the execution of persons younger than eighteen years of age at the time of their crime violates the Eighth and Fourteenth Amendments to the United States Constitution. This decision patently rejected the U.S. Supreme Court's ruling in Stanford v. Kentucky, which permitted the execution of sixteen- and seventeen-year-olds. In deciding Simmons, the Missouri Supreme Court applied the U.S. Supreme Court's reasoning in Atkins v. Virginia to the juvenile death penalty. In Atkins, the Supreme Court found that there was a national consensus against the death penalty for the mentally retarded that made their execution constitutionally unacceptable. Similarly, in Simmons, 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. The dissenting judges in this four-to-three decision did not take issue with the substantive findings of the majority, but objected instead to what they regarded as the impropriety of their state supreme court making a federal constitutional ruling that contravened an earlier U.S. Supreme Court decision.

The U.S. Supreme Court has granted certiorari for a Fall 2004 review of the Simmons case in which it will have an opportunity to consider new evidence on the constitutionality of the juvenile death penalty--evidence of a kind it has lamented not having in earlier death penalty challenges, including specifically a challenge to the juvenile death penalty's constitutionality. This is evidence regarding real capital jurors' exercise of sentencing discretion in cases where they have actually decided whether defendants, whose crimes were committed when they were juveniles, should live or die. This article presents this newly available evidence from capital jurors in an assessment of the constitutionality of the juvenile death penalty.

Drawing upon interviews conducted by the Capital Jury Project with persons who served as capital jurors, we are able to compare jurors who served on cases where the defendant was less than eighteen years of age at the time of the crime with those who served on cases with defendants eighteen years of age and older. We can contrast how capital jurors in these cases assessed the culpability of the defendants and the appropriateness of the death sentence.

Publication Citation

Published in: Boston University Law Review, vol. 84, no. 3 (June 2004).