Antonin Scalia

“ We also reject petitioners' argument that we should invalidate capital punishment of 16- and 17-year-old offenders on the ground that it fails to serve the legitimate goals of penology. According to petitioners, it fails to deter because juveniles, possessing less developed cognitive skills than adults, are less likely to fear death; and it fails to exact just retribution because juveniles, being less mature and responsible, are also less morally blameworthy. ”

“ But it is equally true that individualized consideration will not absolutely assure immunity from the death penalty to the nonjuvenile who happens to be immature. If individualized consideration is constitutionally inadequate, then the only logical conclusion is that everyone is exempt from the death penalty. ”

“ Since a majority of the States that permit capital punishment authorize it for crimes committed at age 16 or above, [3] petitioners' cases are more analogous to Tison v. Arizona, 481 U.S. 137 (1987) , than Coker, Enmund, Ford, and Solem. In Tison, which upheld Arizona's imposition of the death penalty for major participation in a felony with reckless indifference to human life, we noted that only 11 of those jurisdictions [p372] imposing capital punishment rejected its use in such circumstances. ”

“ Granted, however, that a substantial discrepancy exists, that does not establish the requisite proposition that the death sentence for offenders under 18 is categorically unacceptable to prosecutors and juries. To the contrary, it is not only possible, but overwhelmingly probable, that the very considerations which induce petitioners and their supporters to believe that death should never be imposed on offenders under 18 cause prosecutors and juries to believe that it should rarely be imposed. ”

“ They do not represent a social judgment that all persons under the designated ages are not responsible enough to drive, to drink, or to vote, but at most a judgment that the vast majority are not. These laws set the appropriate ages for the operation of a system that makes its determinations in gross, and that does not conduct individualized maturity tests for each driver, drinker, or voter. ”

“ It is they, not we, who must be persuaded. For, as we stated earlier, our job is to identify the "evolving standards of decency"; to determine, not what they should be, but what they are. We have no power under the Eighth Amendment to substitute our belief in the scientific evidence for the society's apparent skepticism. In short, we emphatically reject petitioner's suggestion that the issues in this case permit us to apply our "own informed judgment," Brief for Petitioner in No. 876026, p. 23, regarding the desirability of permitting the death penalty for crimes by 16- and 17-year-olds. ”

“ In fact, the two methodologies blend into one another, since "proportionality" analysis itself can only be conducted on the basis of the standards set by our own society; the only alternative, once again, would be our personal preferences. ”

“ Whether the offense alleged is a part of a repetitive pattern of offenses which indicates that the child may be beyond rehabilitation under the juvenile code; (5) The record and history of the child, including experience with the juvenile justice system, other courts, supervision, commitments to juvenile institutions and other placements; (6) The sophistication and maturity of the child as determined by consideration of his home and environmental situation, emotional condition and pattern of living ”