Antonin Scalia

“ In an attempt to keep afloat its implausible assertion of national consensus, the Court throws overboard a proposition well established in our Eighth Amendment jurisprudence. "It should be observed," the Court says, "that the Stanford Court should have considered those States that had abandoned the death penalty altogether as part of the consensus against the juvenile death penalty . . . ; a State's decision to bar the death penalty altogether of necessity demonstrates a judgment that the death penalty is inappropriate for all offenders, including juveniles." ”

“ I also doubt whether many of the legislators who voted to change the laws in those four States would have done so if they had known their decision would (by the pronouncement of this Court) be rendered irreversible. After all, legislative support for capital punishment, in any form, has surged and ebbed throughout our Nation's history. As JUSTICE O'CONNOR has explained:
"The history of the death penalty instructs that there is danger in inferring a settled societal consensus from statistics like those relied on in this case. ”

“ If juries cannot make appropriate determinations in cases involving murderers under 18, in what other kinds of cases will the Court find jurors deficient? We have already held that no jury may consider whether a mentally deficient defendant can receive the death penalty, irrespective of his crime. See Atkins, 536 U.S., at 321. Why not take other mitigating factors, such as considerations of childhood abuse or poverty, away from juries as well? ”

“ What might be relevant, perhaps, is how many of those States permit 16- and 17-year-old offenders to be treated as adults with respect to noncapital offenses. (They all do; [2] indeed, some even require that juveniles as young as 14 be tried as adults if they are charged with murder. [3] ) The attempt by the Court to turn its remarkable minority consensus into a faux majority by counting Amishmen is an act of nomological desperation. ”

“ It is also worth noting that, in addition to barring the execution of under-18 offenders, the United Nations Convention on the Rights of the Child prohibits punishing them with life in prison without the possibility of release. If we are truly going to get in line with the international community, then the Court's reassurance that the death penalty is really not needed, since "the punishment of life imprisonment without the possibility of parole is itself a severe sanction," ante, at 572, gives little comfort. ”

“ Surely jurors "overpower [ed] " by "the brutality or cold-blooded nature" of a crime, ante, at 573, could not adequately weigh these mitigating factors either.
The Court's contention that the goals of retribution and deterrence are not served by executing murderers under 18 is also transparently false. The argument that " [r] etribution is not proportional if the law's most severe penalty is imposed on one whose culpability or blameworthiness is diminished," ante, at 571, is simply an extension of the earlier, false generalization that youth always defeats culpability. ”

“ That 12 States favor no executions says something about consensus against the death penalty, but nothing—absolutely nothing—about consensus that offenders under 18 deserve special immunity from such a penalty. In repealing the death penalty, those 12 States considered none of the factors that the Court puts forth as determinative of the issue before us today—lower culpability of the young, inherent recklessness, lack of capacity for considered judgment, etc. ”

“ For a similar reason we have, in our determination of society's moral standards, consulted the practices of sentencing juries: Juries "'maintain a link between contemporary community values and the penal system'" that this Court cannot claim for itself. ”

“ Even putting aside questions of methodology, the studies cited by the Court offer scant support for a categorical prohibition of the death penalty for murderers under 18. At most, these studies conclude that, on average, or in most cases, persons under 18 are unable to take moral responsibility for their actions. Not one of the cited studies opines that all individuals under 18 are unable to appreciate the nature of their crimes. ”

“ It is hard to see why this context should be any different. Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.
The Court concludes, however, ante, at 572–573, that juries cannot be trusted with the delicate task of weighing a defendant's youth along with the other mitigating and aggravating factors of his crime. ”

“ Though these cases are assuredly the exception rather than the rule, the studies the Court cites in no way justify a constitutional imperative that prevents legislatures and juries from treating exceptional cases in an exceptional way—by determining that some murders are not just the acts of happy-go-lucky teenagers, but heinous crimes deserving of death. ”

“ I In determining that capital punishment of offenders who committed murder before age 18 is "cruel and unusual" under the Eighth Amendment, the Court first considers, in accordance with our modern (though in my view mistaken) jurisprudence, whether there is a "national consensus," ibid. (internal quotation marks omitted) , that laws allowing such [p609] executions contravene our modern "standards of decency," [1] Trop v. ”

“ Virginia, 536 U.S. 304, 312 (2002) , the Court dutifully recites this test and claims halfheartedly that a national consensus has emerged since our decision in Stanford, because 18 States—or 47% of States that permit capital punishment—now have legislation prohibiting the execution of offenders under 18, and because all of 4 States have adopted such legislation since Stanford. See ante, at 565.
Words have no meaning if the views of less than 50% of death penalty States can constitute a national consensus. ”

“ Moreover, the cited studies describe only adolescents who engage in risky or antisocial behavior, as many young people do. Murder, however, is more than just risky or antisocial behavior. It is entirely consistent to believe that young people often act impetuously and lack judgment, but, at the same time, to believe that those who commit premeditated murder are—at least sometimes—just as culpable as adults. ”

“ It is beyond comprehension why we should look, for that purpose, to a country that has developed, in the centuries since the Revolutionary War—and with increasing speed since the United Kingdom's recent submission to the jurisprudence of European courts dominated by continental [p627] jurists—a legal, political, and social culture quite different from our own. ”

“ To forbid the death penalty for juveniles under such a system may be a good idea, but it says nothing about our system, in which the sentencing authority, typically a jury, always can, and almost [p624] always does, withhold the death penalty from an under-18 offender except, after considering all the circumstances, in the rare cases where it is warranted. ”

“ Thus, the numbers of under-18 offenders subjected to the death penalty, though low compared with adults, have either held steady or slightly increased since Stanford. These statistics in no way support the action the Court takes today.
II Of course, the real force driving today's decision is not the actions of four state legislatures, but the Court's " '"own judgment"' " that murderers younger than 18 can never be as morally culpable as older counterparts. ”

“ Justice O'Connor asserts that an international consensus can at least "serve to confirm the reasonableness of a consonant and genuine American consensus." Ante, at 605. Surely not unless it can also demonstrate the unreasonableness of such a consensus. Either America's principles are its own, or they follow the world; one cannot have it both ways. Finally, Justice O'Connor finds it unnecessary to consult foreign law in the present case because [p628] there is "no . ”