death penality paper (writing sample)

Christopher Kevin GrimCivil Rights LitigationWinter 2011Prof. Masinter5/13/11

Young Enough to DieThe Expansion of Roper v. Simmons & The Growing Societal Consensus

People, from the time they are children, are told to act a certain way and behave in

accordance to what society deems proper or risk the consequences. They are given these

parameters to better ensure they mature into model citizens who contribute to society. The

consequences that hang over every child’s head is punishment, yet the risk of such punishment

does not go away or decrease as one gets older, rather the opposite occurs, the punishments get

far worse. What starts as a slap on the wrist while younger, escalates to harsher penalties as

people mature. A time-out eventually becomes time spent in jail; but at what point does the

punishment’s severity become too severe? At what point is a person simply too young, too

immature to truly comprehend the repercussions of their actions, thus making the punishment an

act of cruelty rather than of education. For as long as this country has been united, the death

penalty has been viewed as the ultimate form of lawful punishment carried out by the State.

Throughout the death penalties’ existence in the U.S., it has invoked a large array of emotions,

greatly dividing this country at its core; but never has it been more so divisive than when applied

to juveniles. The U.S. Supreme Court, in the seminal case of Roper v. Simmons, put an end to

this in 2005, determining that juveniles shall not be subjected to the death penalty. However, this

decision does not go far enough. What makes an individual a juvenile? The U.S. currently

defines a juvenile as someone under the age of 18. However, what are the distinguishing factors

that separate a day-old 18 year-old and a 17 year-old mere hours before turning 18? What makes

an 18 year-old, who hasn’t yet even acquired the right to drink, just as mature as a 21 year-old,

who still is not even trusted to rent a vehicle as a 25 year-old is? There is a growing societal

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consensus that the death penalty offends civilized standards of human decency. Several times

previously, the label of what constitutes a juvenile in the U.S. Supreme Court’s eyes has

changed. The Court has decided many times at what age an individual ceases to be a juvenile,

but the fact of the matter is the number has been inconsistent and continues to increase; leading

to a shrinking of the scope of whom exactly may be constitutionally put to death. The decision

finding the death penalty as applied to juveniles under the age of 18 should be further expanded

to include others and eventually should lead to the abolishment of the death penalty and the

overruling of the Gregg v. Georgia decision which made the death penalty constitutional. Just as

the death penalty for juveniles under 18 has been found to be unconstitutional, so should the

death penalty as applied to other demographics; therefore, the decision in Roper should be

extended to further prevent others from being put to death in such a manner.

Christopher Simmons walked slowly down the seemingly endless, white bricked hallway.

It was as if he was in a dream, a dream he would wake up from in any second. Chris had been

thinking about this moment for what seemed like an eternity. He had pondered daily about what

it would feel like, what he would think about, what he would do, when his time had come. The

light at the end of the hallway was getting closer. Everything was so quiet; the only sounds that

could be heard were of chains clanking and footsteps hitting the hard cement floor. Chris was

numb, cold and…utterly hopeless; he did not know what to think, his mind had given up even

trying to come up with a single eloquent thought, and so in its surrender, all it volunteered to

Chris was a complete blank; white like the walls that surrounded him. He couldn’t remember

what the last thing he ate tasted like. Whatever it was, maybe that was the reason he was feeling

so nauseous, or maybe there was another reason…a reason Chris himself did not even want to

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consider, a reason Chris continued to deny. Even still, he could not stop his whole body from

trembling; fear had taken over. Suddenly, Chris’ feet came to a halt. Chris could feel sweat begin

to run down his spin as he looked up and saw a white linen-lined bed with leather straps

surrounding it. Chris was made to lie on the stiff bed, and as he did, he felt the leather straps

tighten around his arms, his ankles, and his chest.

Chris opened his tear drowned eyes and saw only the bright blinding lights above him.

He heard voices speaking to him, asking him questions…but the content of their conversation

fell on deaf ears…Chris was too busy thinking about how he needed another shower. The one he

had taken just minutes before had gone to waste, he couldn’t hold it anymore; he no longer had

control over his body. The “free world” clothes he had opted to wear were no longer in the clean

condition they once were when he first received them. Chris twisted his head to the side and

looked out a barred window to see gapping eyes staring back at him. Above him floated a

microphone hanging like a noose. From his peripheral, he could see a man walk beside his arm.

The man refused to look at him, refused to acknowledge him, refused to accept that it was

another human being he was now plunging a needle into. Chris felt a sharp pain as the needle tip

dug into his arm, followed by a cold numbing sensation…were these his final moments…so

soon? Now a warming sensation began to pass over him. “I’m sorry” Chris thought, “I’m so

sorry, I was just a stupid, stupid kid. But maybe now, all the guilt will go away, maybe now I

will finally be free from myself.” Then, one last twisted thought filtered into Chris’ resolve,

“They are no better than me…” as he took his last breath before falling into an eternal sleep.

Christopher Simmons, convicted of murder at age 17, now lay dead by way of lethal injection in

the State of Missouri. None of this, however, really happened. Christopher Simmons did not

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walk down death row, he was not strapped down, and he was not put to death by lethal injection.

In fact because of Mr. Simmons’ case, Roper v. Simmons, no minor will ever have to suffer

through the horrors of waiting for their day to die whether by the end of a needle or the shock of

an electric chair.

In Roper v. Simmons, a 5-4 split Court found that the death penalty as applied to

individuals under the age of 18 unconstitutional. Roper v. Simmons, 543 U.S. 551, 125 (2005).

The case arose from a 1993 murder in Missouri, where the defendant, Christopher Simmons (age

18 at the time of trial but age 17 at the commission of the crime), and two friends were charged

with robbing and then murdering Shirley Crook by tying her up and throwing her off a bridge.

Id. Simmons had confessed to the murder and was convicted by a jury. Id. Despite being a

juvenile at the commission of the crime, and having no previous criminal record, the jury still

requested a death which the trial court followed. Id. Simmons appealed, having failed to make a

motion for ineffective counsel citing his age, impulsiveness, and difficult past. Id. The case was

eventually heard by the Missouri Supreme Court which, based on the U.S. Supreme Court’s

decision in Atkins v. Virginia (made the death penalty unconstitutional for the mentally retarded

by finding that a “national consensus has developed against the execution of the mentally

retarded”) overruled the trial court’s decision as violative of the 8th Amendment. Atkins v.

Virginia, 536 U.S. 304, 260 (2002). The State of Missouri appealed the decision to the U.S.

Supreme Court, which granted writ. Roper, 543 U.S. 551. The issue before the Court was

whether the death penalty could be constitutionally applied against an individual who at the time

of the commission of the capital offense was a juvenile. Id.

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Justice Kennedy, writing the majority opinion, explained that their decision was due to

the precedence set forth of juveniles not traditionally being subjected to the death penalty; as

well, as taking into account the building consensus of society ("evolving standards of decency"

test) who opposed the application of the death penalty to juveniles. Id. Therefore, the Court ruled

that the application of the death penalty to juveniles violated the 8th Amendment as cruel and

unusual punishment. Id. The decision overruled the Court’s previous holding in Stanford v.

Kentucky which upheld the death penalty’s application to individuals over the age of 16.

Stanford v. Kentucky, 492 U.S. 361, 109 (1989). In its decision, the Court explained the severity

of the death penalty and delineated that the death penalty should be reserved only for those

criminals who commit a narrow category of the most heinous crimes and whose tremendous

culpability makes them “the most deserving of execution.” Roper, 543 U.S. 551. Kennedy,

making reference to several scientific studies, explained that juveniles’ character is not as well

formed as an adult’s due to their lack of maturity and sense of responsibility, which because of

this, makes them more susceptible to negative outside influences and peer pressure, further

proven through the fact that in every category of reckless behavior, juveniles were statistically

overrepresented. Katsh, Taking Sides (2008). The Court further acknowledged society’s

recognition of juveniles’ irresponsibility and immaturity through the fact that almost every single

state proscribed individuals less than 18 years of age from voting, marrying without parental

consent, serving on juries, or drinking. Roper, 543 U.S. 551. Juveniles also have less experience

and control than adults do, especially with regard to controlling their own environment. Id. They

lack the ability to recognize and remove themselves from potentially dangerous and illegal

environments, ones which are prone to criminal misbehavior. Id. In drawing this line at 18 years

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of age for actions with death penalty eligibility, the Supreme Court overturned its holding

in Stanford v. Kentucky that such dictated such an age consideration was irrelevant. Stanford,

492 U.S. 361. In sum, the Court found that 18 years of age simply appeared to be where the law

had already separated a minor from adulthood for several other reasons. Roper, 543 U.S. 551.

The Court also looked at the trends regarding the death penalty for juveniles, both among

the fifty states of the U.S.; as well as other countries. Id. The Court cited that only 20 states

conducted executions of juveniles; however, only six states actually had executed juveniles in the

last 16 years (three states having only executed juveniles in the last 10 years). Id. Interestingly,

five of the states that had practiced some form of death penalty for juveniles around 1989 had

soon after abolished it. Id. The Court took note that the U.S. and only seven other countries

supported a death penalty for juveniles. Id. Kennedy went on to state that by 1990, everyone one

of these other countries abolished or came out against the execution of juveniles…except the

United States. Id. The Court also makes mention of the U.S. failure to ratify Article 37 the

United Nations Convention on the Rights of the Child, which bans the use of a death penalty on

juveniles. Roper, 543 U.S. 551, 576.

Therefore, the Court’s decision in Roper to find the death penalty as applied to

individuals under the age of 18 unconstitutional came down to 8 major points: (1) The evidence

found in the Roper case regarding a national consensus against the death penalty as applied to

juveniles was similar to that found in the Atkins; demonstrating - the same sentiments against a

death penalty for the mentally handicapped; (2) Congress, when enacting the Federal Death

Penalty Act (18 U.S.C.S. § 3591) in 1994, had determined that capital punishment should be not

be used against juveniles; (3) Similar to Atkins, consensus showed that society was under the

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http://www.lexis.com/research/buttonTFLink?_m=a00e7bfc40c173f4635c726418d49f2a&_xfercite=%3Ccite%20cc%3D%22USA%22%3E%3C!%5BCDATA%5B543%20U.S.%20551%5D%5D%3E%3C%2Fcite%3E&_butType=4&_butStat=0&_butNum=38&_butInline=1&_butinfo=18%20U.S.C.%203591&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVlz-zSkAA&_md5=b64341d8d27b6147e6cf96096d57e146


belief that juveniles should be in some way less culpable as a group than the adult criminal; (4)

Because of the difference in maturity and decision-making skills between those under 18 and

adults showcased the fact that juveniles could not reliably be categorized among the worst of

offenders; (5) The same reasoning used in Thompson v. Oklahoma, where the Court found that

the 8th Amendment banned the application of the death penalty to those who committed offenses

when they were under the age of 16 because of the inherent immaturity present in those

individual, could be applied to those under 18 years of age as well; (6) After recognizing the

lesser culpability of juveniles, it was apparent that the “penological justifications (restitution and

deterrence)” for capital punishment used against those under 18 did so with “lesser force than to

adults.” Id. at 12 ; (7) 18 was a good age to distinguish adulthood from childhood because

society had already used the age as such for several other purposes; (8) The U.S. was the only

country in the world that allowed its government to execute juveniles. Because of these points,

the death penalty’s application to minors was made unconstitutional, and Christopher Simmons

was not put to death. Id.

When a child turns 18, he is deemed to be an adult in the United States, old enough to

vote, old enough to own a credit card, to be independent, to purchase obscene material, to buy

tobacco products, to carry a firearm, to acquire a motorcycle license, and to be lawfully put to

death. The death penalty has existed in North America since before the inception of this country

and continues, to this day, to be instituted. The first known recorded use of the death penalty in

the U.S. was in colonial America in the Jamestown colony (what would later become Virginia)

in 1608 against one Captain George Kendall, accused of spying for the Spanish government and

sentenced to hang for his crime. deathpenaltyinfo.org/part-i-history-death-penalty (May 13,

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2011); see also antideathpenalty.org/history (May 11, 2011). Since that date, approximately

20,000 people have been lawfully executed in the U.S., 366 of which have been juveniles (an

average of 1 juvenile killed per year); the first of which being Thomas Graunger, of Plymouth

Colony, MA, in 1642. internationaljusticeproject.org/pdfs/JuvDeathApril2004.pdf (April 3,

2011). Graunger was tried and found guilty for the crime of bestiality. Id.

A variety of methods have been used in carrying out this grim task. Currently, the

execution methods that remain on the books in one state or another in the U.S. include: lethal

injection (most common), firing squad, lethal gas, hanging, and electrocution (the electric chair;

still used in Florida). There were no standards for what methods may be used on a juvenile, and

thankfully, because of Roper, there never need be. deathpenaltyinfo.org/methods-execution (May

8, 2011). However, such a standard for capital punishment directed towards juveniles was never

intended to exist. Originally, the purpose of even having a juvenile court system was to avoid

such harsh penalties. The government, since its establishment of the first juvenile court in

Chicago, IL, in 1899, has recognized the developmental differences between children and adults

and due to this immaturity the purpose of these juvenile court systems were to facilitate the

rehabilitation of juveniles in order to reinsert them into society so that they might be able to

contribute and become law abiding citizens.

americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheckdam.pdf (May

1, 2011). The purpose of these juvenile courts was never to make it easier to process and execute

them. Unfortunately, the original purpose for the juvenile court system was not always adhered

to and soon juveniles were allowed to be executed without mercy for capital offenses (i.e.

murder).

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It wasn’t until 1972 that the death penalty was finally suspended after the U.S. Supreme

Court ruled 5-4 in Furman v. Georgia, finding that the death penalty violated the 8th

Amendment’s protection from cruel and unusual punishment. Furman v. Georgia, 408 U.S. 238,

239 (1972). The Court held that the death penalty was “arbitrarily and capriciously applied under

existing law based on the unlimited discretion afforded to sentencing authorities in capital trials.”

Id. However, this halt in the assembly line of capital punishment was short lived. By the very

next year in 1973, states’ legislatures (such as Georgia’s), whom desired to retain their death

penalty, had already begun to revise a new round of legislation meant to get around the Furman

decision, and in just 4 years after the death penalty was stayed, the case Gregg v. Georgia came

before the U.S. Supreme Court. Gregg v. Georgia, 428 U.S. 153, 183 (1976).

The Gregg v. Georgia decision reinstated the death penalty back into the U.S., stating

affirmatively that such a punishment did not violate the 8th Amendment so long as a well drafted

statute was presented ensuring the sentencing authority (jury in most cases) had sufficient

knowledge and direction in coming to its verdict in allowing the death penalty to be

administered. Id. However, the Court did admit that the death penalty did in fact violate

contemporary standards of decency, yet the Court side-stepped this issue and was able to avoid

flat out justifying the death penalty, and therefore permitted capital punishment to continue based

on the Court’s observation: that since 35 states have death penalty statutes, society has more or

less accepted capital punishment. Id. A total of 227 juvenile death sentences were imposed since

1973, and now that the chains had been taken off the machine, the wheels, again, began to turn.

internationaljusticeproject.org/pdfs/JuvDeathApril2004.pdf (March 17, 2011). From the time the

death penalty has been reinstated as of 1973, 17 men, whose crimes were committed when they

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were minors, have been put to death with an additional 74 sit and wait for their turn to be put to

their death. ncjrs.gov/pdffiles1/ojjdp/184748.pdf (March 21, 2011). Yet, cases and events since

this time have shown the consensus is changing.

However, soon after Gregg was decided, in 1988, the death penalty began to be reined in

by the Court’s subsequent case law. Limitations began to be placed on this institution of

execution; the societal consensus was beginning to shift. Thompson v. Oklahoma marked the first

case since the death penalty was reinstated and the beginning of the steady stream of cases

following from 1988 that would show just how unstable the tug-of-war battle of capital

punishment precedence had become. Thompson v. Oklahoma, 487 U.S. 815, 818 (1988). The

disarray that followed the U.S. court system in trying to find the limits of the death penalty,

trying to conclude who exactly should fall into the death penalty’s grasp, showed just how

controversial the topic was and how Americans simply had not come to terms with what the

death penalties place is in civil society. Id. In Thompson, the Court further defined and restricted

the death penalties reach by making it unconstitutional, as violative of the 8th Amendment “cruel

and unusual punishment” clause, for an individual who committed a capital offense under the

age of 16 to be put to death. Id. at 823. The Court found, like it would eventually find in Roper,

that minors did not have the same mental capacity or understanding of consequences for their

actions as their adult counter-parts. Id. at 819. The Court did recognize in its decision a maturing

society, one which the death penalty was being seen as less and less civilized. Id.

Yet, this trend, this societal consensus shifts, were not without its drawbacks. The

decisions and occurrences that flowed from these cases around this time were not always

completely against capital punishment; the general trend, nevertheless, shows great unease with

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the concept of execution, and not only of minors, but of the mentally handicapped as well. In

1989, however, just a year after Thompson made it unconstitutional to execute an individual

younger than 16 years of age, two cases were decided by the court broadening the death penalties

reach. Standford v. Kentucky and Penry v. Lynaugh gave credence to America’s bloodlust by

upholding the permissibility of executing both offenders 16 and older (Stanford) and those

offenders who were deemed mentally retarded (Penry). Stanford, 492 U.S. 361; see also Penry v.

Lynaugh, 492 U.S. 302, 334 (1989). This shocking and unfortunate decision was to become a

mere outlier though, as these temporary decisions were eventually overruled several years later.

Atkins v. Virginia, decided in 2002, overturned the 1989 Penry decision making it now

unconstitutional to execute the mentally retarded. Atkins, 536 U.S. 304. The Atkins Court again

spoke about the evolving standards of society’s decency and how Americans were now less

inclined to allow a mentally handicapped person to be executed. Id. at 312-366. The Court

explained that, just as a minors under the age of 16 lack maturity and full understanding of their

action’s repercussions and therefore are less culpable, so too are the mentally retarded as they

share this lesser culpability because they are not fully aware of their actions nor the

consequences of such. Id. Some members of the Court, however, were not satisfied with Atkins,

four of the Supreme Court Justices, namely John Paul Stevens III, Ruth Bader Ginsburg, David

Hackett Souter, and Stephen Gerald Breyer. In Re Stanford, 537 U.S. 968, 123 (2002). These

members wanted to not only weaken the death penalty, they wanted to kill it; they wanted to put

an end to the disgraceful practice that was capital punishment, they wanted to make it

unconstitutional on its face as violative of the 8th Amendment as both cruel and unusual

punishment. Id. The same year as the Atkins case, In re Stanford came before the Supreme Court

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providing the Justices with this opportunity, unfortunately, it was not meant to be as the Court

never ruled on the case and so the death penalty survived. Id.

It wasn’t until three years later that the death penalty got dealt another critical blow. In

2005, the Roper case came before the Court, and applying the same logic utilized in Furman,

Thompson, and Atkins found the application of the death penalty to individuals under the age of

18 unconstitutional. Roper, 543 U.S. 551. At the time the Roper case was decided, 20 states had

statutes providing for juvenile execution, yet only six, since 1989, actually executed persons who

committed crimes as juveniles (five of those six states have now completely abolished the death

penalty) and only three states had done so in the last 10 years (Texas, Virginia, and Oklahoma).

antideathpenalty.org/reasons (May 11, 2011). Now, in 2011, all signs point that the societal

consensus is again changing.

Most states in the U.S. have, as of 2011, abolished the death penalty, and no state has

ever reenacted the death penalty after the state has abolished it. Currently, Michigan, Wisconsin,

Illinois, Rhode Island, Maine, North Dakota, Minnesota, West Virginia, Iowa, Washington D.C.,

Alaska, Hawaii, Oregon, New Jersey, New Mexico, and Vermont have all abolished the death

penalty, with New Jersey, New Mexico, and Illinois being the only three states that have

legislatively abolished the death penalty in the modern era of capital punishment (1976-present).

deathpenaltyinfo.org/states-and-without-death-penalty (May 3, 2011). New York, Massachusetts,

Kansas, and Nebraska have also made great strides to extinguish their death penalty through

several state court decisions finding the capital punishment statutes in their respective states

unconstitutional. Id.

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Statistically speaking, the death penalty is not a welcome solution across the country,

however, a 2010 Gallup poll suggests a somewhat growing 29% of Americans oppose the death

penalty completely and only 21% of Americans actually favor capital punishment over life in

prison for juveniles who commit murder. gallup.com/poll/144284/Support-Death-Penalty-Cases-

Murder.aspx (March 12, 2011); see also deathpenaltyinfo.org/node/1041 (May 3, 2011). The

driving force beyond much of these poll numbers as well as the current shift among American

distaste for the death penalty can be attributed to the inherent toxicity of statistics involving the

U.S. and the death penalty’s shameful practice.

Currently, there are approximately 18,000 people on death row, spread over 23 countries

worldwide that carry out some type of a death penalty. allvoices.com/contributed-news/8602277-

almost-18000-people-face-the-death-penalty-worldwide (May 1, 2011). Of these countries, only

seven besides the U.S. had executed juveniles from 1990 to 2005 (China, Congo, Iran, Nigeria,

Pakistan, Saudi Arabia, and Yemen, all known and infamously notorious violators of human and

civil rights). lawcrossing.com/article/408/Supreme-Court-Weighs-Juvenile-Executions/ (April

11, 2011); see also internationaljusticeproject.org/juvConst.cfm (April 11, 2011). However, after

1990, the U.S. stood alone as the only country of the group that continued to allow the execution

of juveniles while every one of those other countries had abolished it or publicly denounced the

practice of it. Id. In fact, prior to the decision in Roper, between 1985 and 1993, nine juveniles

were sentenced to death, with 42 juveniles still remaining on death row (more than anywhere

else in the world at that time). Id.; see also npr.org/templates/story/story.php?storyId=4518051

(March 17, 2011). Yet, this number pales in comparison to the number of adult death row

inmates, standing at an estimated 3,200. deathpenaltyinfo.org/death-row-usa (May 3, 2011). The

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U.S. stands as one of the only countries that have executed a juvenile in the last 10 years.

lawcrossing.com/article/408/Supreme-Court-Weighs-Juvenile-Executions/ (April 11, 2011). The

U.S. also remains one of only 4 countries (China, Japan, and Saudi Arabia) that is both a member

of the G20 Summit and at the same time allows the execution of its criminals.

amnesty.org/en/news-and-updates/report/death-penalty-2010-executing-countries-left-isolated-

after-decade-progress (May 3, 2011). The U.S. has also given the cold shoulder to Amnesty

International, refusing to join the 80 other countries that have killed off their own version of the

death penalty. Id. As already stated, the U.S. (along with Somalia, another notorious violator of

human rights) also has not ratified Article 37 of the UN Convention on the Rights of the Child

(which forbids the execution of juveniles). Roper, 543 U.S. 551, 576.

The death penalty is not a deterrent of crime in the first place. It is only a violation of

every human being’s civil rights, and as the trend of the death penalty has shown the majority of

people it has been used against are minorities. Race has made the death penalty a personal issue

with a great number of people, as only 45% of juvenile defenders put to death are white, leaving

the majority of youth executed minorities. deathpenaltyinfo.org/race-and-death-penalty (May 11,

2011). Even more interesting, the majority of adults put to death are white (57%). Id. One would

think the majority of adults on death row would be reflective of the majority of juveniles on

death row; yet, this is not the case. Time and time again, minority juveniles were being held to

face the gallows.

All these statistics combine to equal a rather frightening reality for a modern society that

considers itself to be a leading proponent of civil and human rights. The U.S. finds itself

compared to countries notorious for their lack of human rights and civility. Today, the death

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penalty remains a haunting shadow of barbarism hanging stale over this country since the

colonial era. The frequency of its execution to…execute has become a grave inconsistency to the

standards we set forth as champions of human’s rights. The U.S. remains one of the last

remaining modern societies to yet expel the death penalty. deathpenaltyinfo.org/ (May 3, 2011);

see also infoplease.com/ipa/A0777460 (March 17, 2011). The same U.S. that holds itself as a

champion of human rights, the same U.S. that fell behind some of the largest violators of civil

rights such as the Congo, China, and Iran, in protecting its minors from execution. https://litigation-

essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=22+N.E.+J.

+on+Crim.+%26+Civ.+Con.+391&srctype=smi&srcid=3B15&key=799d1bd6c7c6a984a2033d15c2d54438

(March 17, 2011). Hopefully there can be some silver lining in that fact that maybe the growing

number of states abolishing their death penalty displays a growing consensus and trend that will

continue throughout the country until the death penalty is extinct. Just as the justice system was

originally meant to hand out justice, to protect people’s rights, and to ensure the civil rights of

every human being are protected. Just as what was beginning to be the trend for juveniles in this

country and which as of 2005 has been rectified, so is happening to our justice system as a

whole. For the states to be abolishing the death penalty, without issue and without a single state

having the death penalty reinstated once abolished, it is clear the American people are beginning

to lose faith in this archaic form of justice. Even more so, though, than the American people

losing faith in the death penalty as an institution for the carrying out of justice, the justifications

for it are also beginning to run dry. Just as the justice system was originally meant to hand out

justice, to protect people’s rights, and to ensure the civil rights of every human being are

protected. Just as what was beginning to be the trend for juveniles in this country and which as of

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2005 has been rectified, so is happening to our justice system as a whole. The defenses used to

explain the death penalty mere existence have begun to crumble as, and with it, society’s faith in

the institution of execution.

The Court in Gregg found the death penalty to be a proportional method of retribution

and deterrence for the crime of murder. Gregg, 428 U.S. 153. However, this justification, as well

as all the arguments made for having an established death penalty, can be debunked either by

logic, statistics, or facts, especially when taken within the scope of targeting juveniles and those

just beyond the age of 18. One of the most common arguments supporters of the death penalty

make is by its very nature, the death penalty deters crime. antideathpenalty.org/reasons.html

(May 11, 2011). The only problem is, it does not. The only deterrence that occurs is the ultimate

deterrence of the person being killed, in that he or she will never commit a crime again…or any

other act for that matter. Id. Also, to say that killing a person will prevent them from committing

future crimes is further debunked by the fact that a person spending life in prison also cannot

commit crime. Id. Some might argue these particular individuals do not deserve to be

rehabilitated, but how many people are the exact same people today as they were when they were

18? Many studies show the male does not finish maturing physically, mentally, or emotionally at

age 18, nor do females. Jensen, Juvenile Law Violators, Human Rights, and the Development of

New Juvenile Justice Systems. (2006).; see also tigger.uic.edu/~lnucci/MoralEd/overview (April

3, 2011).

Statics show that the murder rate in the U.S. has actually increased with the use of the

death penalty. antideathpenalty.org/reasons.html (May 11, 2011). The U.S. currently is a world

leader in murder, as murder rates in the U.S. are currently 6 times higher and 5 times higher than

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that of Britain and Australia, respectively, neither of which has a death penalty. Id. Of course,

one could argue that the size difference between the U.S. and smaller countries such as Britain

and Australia make such comparisons incompatible. Id. However, even comparisons between

states in the U.S., such as Texas and Wisconsin, reveal that states engaged in capital punishment

(Texas) tend to have more crime than the states that do not (Wisconsin). Id. In fact, Texas’

crime rate is nearly double that of Wisconsin. Even more interesting, Texas and Oklahoma (both

states that have traditionally been known to have the highest amount of death row inmates), in

2003, actually saw crime and murder rates increase, and both already have murder rates higher

than the national average. Id. Some could argue that Texas size could be a factor in the high level

of crime, but what of Oklahoma? Oklahoma is smaller than California, Florida, and a number of

other states that have a lower murder rate. Id.

The old argument that executing the prisoners rather than allowing them to sit in prison

and leech off Americans’ hard earned tax dollars is also a moot point as executions cost more

than life imprisonment. Id. According to antideathpenalty.org, the cost of allowing a person to

live out their life in prison is around $500,000 while putting them to death under the death

penalty costs, on average, around $2,000,000 per person; the reason for such a stark difference is

due to the court and counsel fees, the cost of appeal, and to top it all off, the cost of having a

separate death row wing to facilitate these inmates. Id.

The death penalty also raises the issue of killing the falsely accused and the innocent. In

just the 35 years that the death penalty has been reinstated since the 1976 case Gregg v. Georgia,

there have been 138 people in the states that still actively practice capital punishment found

innocent and released from death row (with Florida having the most amount of exonerations at

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23). deathpenaltyinfo.org/innocence-and-death-penalty (March 17, 2011). That averages to

approximately 1 inmate wrongfully convicted for every 7 death row inmates executed.

antideathpenalty.org/reasons.html (May 11, 2011). Organizations such as The Innocence Project

actively seek, through the use of DNA testing, to prove innocent the falsely accused, and the

eerie part is, they have been very successful. innocenceproject.org/ (March 17, 2011). Since the

organization’s inception, they have freed seventeen death row inmates through DNA evidence.

Id. These are seventeen people, innocent people that would have been slain all because of this

Hammurabian system of justice. Id.

The goal of the death penalty was intended to be retribution, the old Hammurabi “eye for

an eye,” if one takes a life he or she must be prepared to lose their life”. The problem is,

however, when you combine a less than perfect court system to determine someone’s guilt with a

punishment that provides a permanent result, you have a consequence that could lead to some

grave and irreparable miscarriages of justice. Id. When a person is given life in prison and then

later, that person is found to be innocent, that wrong can still be rectified, and that person

compensated and released. While it is true that nothing will ever make-up for the time they spent

in jail, nor will anything heal the immeasurable damage done to that person’s reputation, the

person, nevertheless, is still alive and able to live out what is rest of his or her life as a free

person. The same cannot be said for someone wrongly convicted and placed on death row. By

contrast, an innocent person who has already been put to death has no recourse. There is nothing

that can be done for the falsely condemned, except maybe posthumously clear his or her name,

but that means little to a grieving family, and even less to the deceased individual.

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Beyond the logical and legal ramifications of the death penalty, the moral aspects that

come into play are equally as strong, especially on an individual level. The fact of the matter is,

killing, regardless of who is conducting the killing is taught to each American child and adult to

be wrong. Catholics, Presbyterian, Quakers, Amish, and Mennonites are just some examples of

religions that explicitly forbid killing and the death penalty alike.

antideathpenalty.org/reasons.html (May 11, 2011). Much of the laws in the U.S. are based

loosely on Christian maxims, therefore, the death penalty stands are a hypocritical tear in the

fabric of American values. Christians, as well as Buddhists (who believe in co-existence and

peace) believe that no person has the right to cast final judgment on another person and kill them,

for doing so makes the party seeking justice no better than the one trying to escape it; violence

begets violence. Christians further view the Passion of the Christ as a strict and complete

condemnation of any form of death penalty, as Christ who was free of sin, can be seen as the

ultimate example of executing an innocent person. deathpenaltyinfo.org/religion-and-death-

penalty (March 17, 2011); see also religioustolerance.org/executh.htm (May 2, 2011). Many

other religious denominations look to the scriptures, such as Christians looking to the Bible. For

example, Romans 12:19 states, “Do not take revenge, dear friends, but leave room for God's

wrath. For it is written, “Vengeance belongs to me. I will pay them back, declares the Lord.” The

Holy Bible: Containing the Old and New Testaments : NKJV, New King James

Version.Nashville: (2006). For Christians and Jews, the mainstream belief is the only individual

that may pass final judgment is God. Thus, while life imprisonment would not likely offend the

Christian and Jewish faithful, the death penalty certainly does violate their traditional beliefs. In

the Old Testament, Christians and Jews both hold sacred the story of Mosses descending from

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Mount Sinai carrying with him, two stone tablets. On these tablets were written the 10

Commandments, of these the 5th Commandment dictated that “Thou shall not kill.”

antideathpenalty.org/reasons.html (May 11, 2011). The Commandment applies across the board

and the person administering what he or she thinks is justice is not held out to be an exception to

the rule. Killing someone unless it is to protect oneself is wrong.

The procedures taken when executing by way of firing squad is a testament to this fact

that regardless of who says the killing is acceptable, it is still killing nonetheless. Five shooters

are lined up and each one is given a bullet, one of those bullets is a blank. The purpose of the

blank is to ease the shooters conscious, to allow them to think it was him who had the blank

bullet; it was not him who took another man’s life. However, this denial does not remove the fact

that such a procedure, through such a detail, basically impliedly admits to be wrong, for if what

the person was doing was 100% right, there would be no need for such a formality.

Also take into consideration what a punishment such as the death penalty tells the youth

of the U.S., that it is acceptable to kill those who deserve it, that it is permissible to kill someone

for killing someone else as long as the government does it. So if the government does it, it is not

wrong, but if an individual kills a man for killing another, than that is vigilantism and is wrong.

The death penalty essentially promotes taking a life to rectify that person’s taking of another’s

life. The same juveniles that are taught on a day to day basis that killing is wrong, up until ten

years ago, were allowed to be executed by the same government stressing these moral and ethical

values. To say juveniles were receiving mixed messages would be a vast understatement. It was

not until 1994, that the hypocrisy in this message seriously began to fade as Congress,

determining the death penalty should not extend to those who were deemed juveniles, enacted

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the Federal Death Penalty Act (18 U.S.C.S. 3591). deathpenaltyinfo.org/federal-death-row-

prisoners (March 17, 2011); see also deathpenaltyinfo.org/part-ii-history-death-penalty (March

17, 2011). Now the only remaining question was…what is a juvenile? This fundamental question

the Court has seemingly answered numerous times, yet for all intensive purposes may not be

finished answering yet.

At what age does a person cease to be a juvenile for purposes of applying the death

penalty? It seems across the board that individuals who are not in full control of their actions,

who are not fully aware or do not fully understand the consequences of said actions, or those

who are not completely mature or capable enough to make rational decisions have a lower

culpability than adults, and it is this lower culpability that saves them from the axe. Yet, at what

age, at one point is the line fairly drawn? It is common knowledge that currently, the Court views

juveniles, and hence those individual whom are exempt from the death penalty, as those under

the age of 18…but is that truly fair? Is that really an accurate assessment of when a child actually

becomes an adult?

For decades even the very constitutionality of the death penalty has been questioned. The

answers received have been anything but absolute, having provided little closure to both the

lower courts awaiting patiently for a determinative response, as well as the death row inmates

waiting and watching the sand pass through their hourglass. The one constant the U.S. Supreme

Court has provided is in every recent U.S. Supreme Court case regarding the death penalty, the

court has required that it look to the evolving standards of decency that mark progress of

maturing society when determining which punishments are so disproportionate as to be “cruel

and unusual,” within meaning of the 8th Amendment prohibition. Con. Amend. 8. Another

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constant the Court has established is that the death sentence cannot be dealt out for anything less

than a capital crime. Roper, 543 U.S. 551. The court has found, in following with this standard

that our society has matured enough that its bloodlust for minors is satisfied, and so no more

minors need die. But what is a minor? Who determines at what age a person ceases to be a

minor? At what age is it acceptable to use the death penalty? How young can someone be and

still be put to death? As it currently stands, 18 is the age of choice but what is the likelihood of

the increasing, or decreasing? The logic behind the death penalty, its implementation, and who it

is applied to are seriously flawed at best, and an extreme violation of every human being’s civil

rights. Interestingly, society views 18 year olds as no longer young enough to be considered

minors, however, these same 18 year olds are nevertheless deprived rights and privileges granted

to their 21 and older counter-parts.

In 1969, 30 states in following with the national voting age being reduced from 21 to 18,

also reduced the drinking age from 21 to 18. Most states kept the drinking age at 18 into the

1980s. www2.potsdam.edu/hansondj/LegalDrinkingAge.html (May 3, 2011). However, by 1982,

drunk driving had become a major issue. Id. In order to combat drunk driving, the U.S.

government offered highway funding to all states which increased the drinking age to 21. Id. By

1988, all 50 states were in compliance. Id. By the U.S. government changing the age to consume

alcohol to 21, the government essentially implied that, in some way, 18 year olds were not

mature enough to make the proper judgment calls necessary to consume alcohol, at least not as

mature as 21 year olds. Yet, somehow, these same 18, 19 and 20 year olds who lack the capacity

to make mature decision regarding alcohol, do retain the capacity to make decision that could

place them in an electric chair? It was this same logic, this same belief that an individual at a

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certain age lacked the capacity to make mature decision and be responsible for their actions and

therefore should be somehow less culpable because of their underdeveloped features that led the

cases Atkins and Roper. Roper, 543 U.S. 551; see also Atkins, 536 U.S. 304. It was this logic that

allowed those who are mentally handicapped and those who are immature based on age to escape

the death penalty. Id. It is this same logic that can be applied across the board to an even larger

demographic, such as here, with regards to 18, 19, and 20 year olds. If an 18 year old is not old

enough to drink, how can it be said that he or she is old enough to commit an act worthy of the

death penalty. Surely the decision to drink is a lesser one than to commit an atrocity worthy of

execution. Interestingly, society views 18 year olds as no longer young enough to be considered

minors, however, these same 18 year olds are nevertheless deprived rights and privileges granted

to their 21 year-old counter-parts.

Also the fact that the court has consistently shifted between ages and situations regarding

who may be killed by the death penalty shows extreme unrest. The seemingly back and forth

decisions in Thompson, Standford, Penry, Atkins, and Roper show this. The area of law is simply

not yet settled and likely will not be until the death penalty is completely abolished, as more and

more states and countries follow suit. No individual state, or country (besides the U.S.), has ever

reenacted the death penalty once it has been abolished since the 1976 reenactment of it. The risk

of the Court lowering the age and allowing juveniles under 18 to be executed again, as what

happened in 1989 to 16 year olds, is highly unlikely. The precedence set by the Court is that

rights tend to be much harder to lose once acquired. As those under 18 already have protection

from the death penalty it would take a grave change to usurp that decision, not to mention the

Court would risk serious public outcry if such a thing were to happen.

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The court’s attempt to place a number on maturity, a number that could be said to apply

to every person regardless of background as to when it is permissible to kill them because of

their crimes has been attempted and has failed every time. This is rather impossible feat as every

individual age and matures differently. When does the pattern of reckless behavior cited in Roper

and Atkins end? The answer is, it depends on the person. Something as the death penalty should

never have a bright line test or strict standards. It should be a moldable case by case analysis of

the individual, because it is that individual whose life is literally at stake. The Roper Court noted

that, previous to its decision in the case, the irregularity which states were sentencing juveniles to

death. Id. The Court felt this trend further strengthen their stance in the case that the national

consensus was against the execution of juveniles.

Is there a difference in maturity between a 17 and 18 year old? is there a differences in

biological and mental development between 17 and 18 year olds? What about 19 and 20?

Apparently, the government believes there is one between 20 and 21. Yet, what makes an 18

year old, old enough to kill and be punished capitally for it? What distinguishes him from 17

year olds which just years ago in Stanford were found to be young enough to kill by the death

penalty? And how is it that an 18 year old is mature enough to be killed by way of the death

penalty because of the choices he or she made, but that same 18 year old is still too immature to

drink because of this same lack of ability to make good decision found in the logic of Atkins and

Roper. The fact that the government will not allow 18 year olds to drink is essentially a

concession that 18 year olds are not true adults, not truly mature, just as they found the mentally

retarded in Atkins and those under 18 in Roper. Further still, it can even be argued that there is

evidence that a person is not fully developed or completely mature until the age of 25, which is

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shown through the fact that car insurance greatly is reduced at that age because statistics show

that adults at that age are less of a risk than those younger. Lastly, there is always the argument

that no one is ever mature enough to be put to death that simply being put to death by one’s own

country is just wrong.

Presently, 18 year olds are not allowed to drink because they are deemed too immature as

shown, according to the government, by the increase in drunk driving during the period 18 year

olds were allowed to drink. Yet, 18 year olds are still mature enough, still old enough, to make a

decision that will land him on death row. The reason the U.S. government raised the age of

consumption of alcohol was because it believed 18 years olds were not old enough to be trusted

to make such a decision that could affect the rest of their lives but at 18, they could still make a

decision that would place them in an electric chair. This is a serious inconsistency and complete

breakdown in logic. In the hypothetical situation where one male murders another one minute

before turning 18, the individual shall be able to escape the death penalty under Roper (and

potentially under Atkins if the individual is found to be mentally handicapped). However, if the

same male were to murder another man a minute before turning 18 still in the clear; guy kills

someone a day or minute after turning 18 now considered mentally mature enough to be held

responsible for his actions and can now be put to death. This hypothetical is only a quick glimpse

at the inconsistencies, the problems, with executing people based on their age, using their age to

dictate how mature they are to face the gallows. Yet, such a system does not have to remain in

place.

The decision regarding juveniles can be expanded based on the language found in Atkins

and Roper in that those who are immature and unaware of the repercussions of their actions are

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less culpable and by way of the government preventing 18 to 20 year olds from engaging in all

the rights granted to full adults (i.e. drinking), the government has basically admitted to this

group of individuals (18 to 20 year olds) being too immature compared to 21 year olds and

therefore fitting within the parameters of avoiding the death penalty.

If Furman, Atkins, and Roper taught society anything is that society is ever changing. As

Furman led into Atkins, and as the logic in Atkins established the cause of action in Roper, so

might Roper lead to another seminal cause that might further expand the reach of protection from

the death penalty to other individuals. Whether it broaden the definition of juveniles to include

those under the age of 21, or expand further and even possibly achieve the goal the 4 Justice in

the case In re Stanford tried to accomplish. Either way, it is interesting to see exactly the logic

behind the court’s decision and exactly how far it may go, whether by expansion of the

circumstances on a case by case basis or expansion of the general rule as a whole. Only time will

tell.

Thus, just as the Court found in Roper that the reasoning of Atkins established that the

Constitution prohibited execution of an offender for a crime committed when the offender was

under 18, the reasoning in Roper could be said to extend to other demographics as well as further

expand what it means and who may be a juvenile. As in every major case discussed above

involving the death penalty, the societal consensus standard is the main test used and society no

longer supports the death penalty as shown by the general trend. The abolition of the death

penalty slowly, piece by piece, through continuous case law chipping away at this institutions

foundation will eventually lead to the erosion and the toppling of the death penalty itself. Just as

the societal consensus grew fed up with the execution of those under 16, just as society matured

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past the point of allowing those who are mentally handicapped to be put to death, just as society

was able to push forward and further limit the death penalty by excluding those under 18 from its

grasps, so will the societal consensus show again that the American people no longer want those

under 21 to be sacrificed in the name of this archaic system, and soon, hopefully one day in the

near future, society will determine that the ends the death penalty provides never justifies its

means, that there is basically too much risk and not enough benefit when throwing away a life, a

life whose innocence and guilt is judged by an imperfect system. The capital punishment system

will crumble and it will fall, brick by brick, injustice by injustice, until the American people,

until society, will not allow innocent people, will not allow children, will not allow their fellow

man to be judged and put to death based on a less than perfect decision. The old Code of

Hammurabi should remain where it belongs, in the history books and nowhere else, for this

archaic mentality has no place in civilized society.

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death penality paper (writing sample)

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