Antonin Scalia

“ It is surely constitutional for a State to believe that the degree of maturity that is necessary fully to appreciate the pros and cons of smoking cigarettes, or even of marrying, may be somewhat greater than the degree necessary fully to appreciate the pros and cons of brutally killing a human being. ”

“ That 40% of our States do not rule out capital punishment for 15-year-old felons is determinative of the question before us here, even if that position contradicts the uniform view of the rest of the world. We must never forget that it is a Constitution for the United States of America that we are expounding. ”

“ What the concurrence proposes is also designed, of course, to make it more difficult for all States to enact legislation resulting in capital punishment for murderers under 16 when they committed their crimes. It is difficult to pass a law saying explicitly "15-year-olds can be executed," just as it would be difficult to pass a law saying explicitly "blind people can be executed," or "white-haired grandmothers can be executed," or "mothers of two-year-olds can be executed." ”

“ III If I understand JUSTICE O'CONNOR'S separate concurrence correctly, it agrees (1) that we have no constitutional authority to set aside this death penalty unless we can find it contrary to a firm national consensus that persons younger than 16 at the time of their crime cannot be executed, and (2) that we cannot make such a finding. It does not, however, reach the seemingly inevitable conclusion that (3) we therefore have no constitutional authority to set aside this death penalty. ”

“ It is whether there is a national consensus that no criminal so much as one day under 16, after individuated consideration of his circumstances, including the overcoming of a presumption that he should not be tried as an adult, can possibly be deemed mature and responsible enough to be punished with death for any crime. ”

“ Doubtless at some age a line does exist—as it has always existed in the common law, see supra, at 864—below which a juvenile can never be considered fully responsible for murder. The evidence that the views of our society, so steadfast and so uniform that they have become part of the agreed-upon laws that we live by, regard that absolute age to be 16 is nonexistent. ”

“ There is, to be sure, no reason to believe that the Members of Congress had the death penalty specifically in mind; but that does not alter the reality of what federal law now on its face permits. Moreover, if it is appropriate to go behind the face of the statutes to the subjective intentions of those who enacted them, it would be strange to find the consensus regarding criminal liability of juveniles to be moving in the direction the plurality perceives for capital punishment, while moving in precisely the opposite direction for all other penalties. ”

“ All that would be needed is uncertainty regarding the existence of a national consensus, whereupon various protective requirements could be imposed, even to the point of specifying the process of legislation. If 15-year-olds must be explicitly named in capital statutes, why not those of extremely low intelligence, or those over 75, or any number of other appealing groups as to which the existence of a national consensus regarding capital punishment may be in doubt for the same reason the concurrence finds it in doubt here, viz., because they are not specifically named in the capital statutes? ”

“ Surely the conclusion is not that it is unconstitutional to impose capital punishment upon a woman. [5]
If one believes that the data the plurality relies upon are effective to establish, with the requisite degree of certainty, a constitutional consensus in this society that no person can [p872] ever be executed for a crime committed under the age of 16, it is difficult to see why the same judgment should not extend to crimes committed under the age of 17, or of 18. ”

“ The plurality takes it to be persuasive evidence that social attitudes have changed to embrace such a prohibition—changed so clearly and permanently as to be irrevocably enshrined in the Constitution—that in this century all of the 18 to 20 executions of persons below 16 when they committed crimes occurred before 1948. ”

“ A society less ready to impose the death penalty, and entirely unwilling to impose it without individualized consideration, will of course pronounce death for a crime committed by a person under 16 very rarely. ”

“ On February 18, 1983, the State of Oklahoma filed an information and arrest warrant for Thompson, and on February 22 the State began proceedings to allow Thompson to be tried as an adult. Under Oklahoma law, anyone who commits a crime when he is under the age of 18 is defined to be a child, unless he is 16 or 17 and has committed murder or certain other specified crimes, in which case he is automatically certified to stand trial as an adult. ”

“ Even assuming that the execution rather than the sentencing statistics are the pertinent data, and further assuming that a 4-decade trend is adequate to justify calling a constitutional halt to what may well be a pendulum swing in social attitudes, the statistics are frail support for the existence of the relevant trend. ”

“ In sum, the statistics of executions demonstrate nothing except the fact that our society has always agreed that executions of 15-year-old criminals should be rare, and in more modern times has agreed that they (like all other executions) should be even rarer still. There is no rational basis for discerning in that a societal judgment that no one so much as a day under 16 can ever be mature and morally responsible enough to deserve that penalty ”

“ At the sentencing phase of the trial, the jury agreed with the prosecution on the existence of one aggravating circumstance, that the murder was "especially heinous, atrocious, or cruel." As required by our decision in Eddings v. Oklahoma, 455 U.S. 104, 115–117 (1982) , the defense was permitted to argue to the jury the youthfulness of the defendant as a mitigating factor. ”

“ It soon proceeds, however, to the conclusion that " [g] iven the lesser culpability of the juvenile offender, the teenager's capacity for growth, and society's fiduciary obligations to its children," none of the [p873] rationales for the death penalty can apply to the execution of a 15-year-old criminal, so that it is "'nothing more than the purposeless and needless imposition of pain and suffering."' Ante, at 838, quoting Coker v. ”

“ The practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so "implicit in the concept of ordered liberty" that it occupies a place not merely in our mores but, text permitting, in our Constitution as well. ”

“ Illinois has added as excluded offenses: murder, criminal sexual assault, armed robbery with a firearm, and possession of a deadly weapon in a school committed by a child 15 or older; Ill. Ann. Stat., ch. 37, § 805-4 (6) (Supp. 1988) ; Indiana has lowered its waiver age to 14 where aggravating circumstances are present, and it has made waiver mandatory where child is 10 or older and has been charged with murder; Ind. Code §§ 31-6-2-4 (b) – (e) (Supp. 1987) ; Kentucky has established a waiver age of 14 for juveniles charged with capital offenses or Class A or B felonies ”

“ That discussion begins with the recitation of propositions upon which there is "broad agreement" within our society, namely, that "punishment should be directly related to the personal culpability of the criminal defendant," and that "adolescents as a class are less mature and responsible than adults." ”

“ As for the state status quo with respect to the death penalty in particular: The plurality chooses to "confine [its] attention" to the fact that all 18 of the States that establish a minimum age for capital punishment have chosen at least 16. Ante, at 829. But it is beyond me why an accurate analysis would not include within the computa- [p868] tion the larger number of States (19) that have determined that no minimum age for capital punishment is appropriate, leaving that to be governed by their general rules for the age at which juveniles can be criminally responsible. ”