William J. Brennan

“ Hence it is constitutionally inadequate that a juvenile offender's level of responsibility be taken into account only along with a host of other factors that the court or jury may decide outweigh that want of responsibility. ”

“ The individualized consideration of an offender's youth and culpability at the transfer stage and at sentencing has not operated to ensure that the only offenders under 18 singled out for the ultimate penalty are exceptional individuals whose level of responsibility is more developed than that of their peers. In that circumstance, I believe that the same categorical assumption that juveniles as a class are insufficiently mature to be regarded as fully responsible that we make in so many other areas is appropriately made in determining whether minors may be subjected to the death penalty. ”

“ These indicators serve to confirm, in my view, my conclusion that the Eighth Amendment prohibits the execution of persons for offenses they committed while below the age of 18, because the death penalty is disproportionate when applied to such young offenders and fails measurably to serve the goals of capital punishment. ”

“ Moreover, the very paternalism that our society shows toward youths and the dependency it forces upon them mean that society bears a responsibility for the actions of juveniles that it does not for the actions of adults who are, at least theoretically, free to make their own choices:
youth crime . . . is not exclusively the offender's fault; offenses by [p396] the young represent a failure of family, school, and the social system, which share responsibility for the development of America's youth. ”

“ The fact that juries have on occasion [p386] sentenced a minor to death shows, the Court says, that the death penalty for adolescents is not categorically unacceptable to juries. Ante at 374. This, of course, is true; but it is not a conclusion that takes Eighth Amendment analysis very far. Just as we have never insisted that a punishment have been rejected unanimously by the States before we may judge it cruel and unusual, so we have never adopted the extraordinary view that a punishment is beyond Eighth Amendment challenge if it is sometimes handed down by a jury. ”

“ It is thus unsurprising that individualized consideration at transfer and sentencing has not in fact ensured that juvenile offenders lacking an adult's culpability are not sentenced to die. Quite the contrary. Adolescents on death row appear typically to have a battery of psychological, emotional, and other problems going to their likely capacity for judgment and level of blameworthiness. A recent diagnostic evaluation of all 14 juveniles on death rows in four States is instructive. ”

“ F. In these and a host of other ways, minors are treated differently from adults in our laws, which reflects the simple truth derived from communal experience that juveniles, as a class, have not the level of maturation and responsibility that we presume in adults and consider desirable for full participation in the rights and duties of modern life.
The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult. ”

“ In 19 States that have a death penalty, no minimum age for capital sentences is set in the death penalty statute. See Thompson v. Oklahoma, 487 U.S. 815, 826-827, and n. 26 (1988) , and n. 1, supra. The notion that these States have consciously authorized the execution of juveniles derives from the congruence in those jurisdictions of laws permitting state courts to hand down death sentences, on the one hand, and, on the other, statutes permitting the transfer of offenders under 18 from the juvenile to state court systems for trial in certain circumstances. ”

“ Because imposition of the death penalty on persons for offenses committed under the age of 18 makes no measurable contribution to the goals of either retribution or deterrence, it is "nothing more than the purposeless and needless imposition of pain and suffering," Coker, supra, at 592, and is thus excessive and unconstitutional.
V There are strong indications that the execution of juvenile offenders violates contemporary standards of decency: a majority of States decline to permit juveniles to be sentenced to death ”

“ I C Further indicators of contemporary standards of decency that should inform our consideration of the Eighth Amendment question are the opinions of respected organizations. Thompson, 487 U.S. at 830 (plurality opinion) . Where organizations with expertise in a relevant area have given careful consideration to the question of a punishment's appropriateness, there is no reason why that judgment should not be entitled to attention as an indicator of contemporary standards. There is no dearth of opinion from such groups that the state-sanctioned killing of minors is unjustified. ”

“ But the factors discussed above indicate that 18 is the dividing line that society has generally drawn, the point at which it is thought reasonable to assume that persons have an ability to make, and a duty to bear responsibility for their, judgments. ”

“ JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting.
I believe that to take the life of a person as punishment for a crime committed when below the age of 18 is cruel and unusual, and hence is prohibited by the Eighth Amendment. ”

“ Brown, 479 U.S. 538, 545 (1987) (an "emphasis on culpability in sentencing decisions has long been reflected in Anglo-American jurisprudence. . . . Lockett and Eddings reflect the belief that punishment should be directly related to the personal culpability of the criminal defendant") (O'CONNOR, J., concurring) . ”

“ To be sure, the development of cognitive and reasoning abilities and of empathy, the acquisition of experience upon which these abilities operate and upon which the capacity to make sound value judgments depends, and in general the process of maturation into a self-directed individual fully responsible for his or her actions, occur by degrees. ”

“ I would not assume, however, in considering how the States stand on the moral issue that underlies the constitutional question with which we are presented, that a legislature that has never specifically considered the issue has made a conscious moral choice to permit the execution of juveniles. ”

“ Delinquent juveniles are unlikely to be among these few. Instead, they will typically be among those persons for whom society's presumption of a capacity for mature judgment at 18 is much too generous. ”

“ III B There may be exceptional individuals who mature more quickly than their peers, and who might be considered fully responsible for their actions prior to the age of 18, despite their lack of the experience upon which judgment depends. ”

“ Both in absolute and in relative terms, imposition of the death penalty on adolescents is distinctly unusual. Adolescent offenders make up only a small proportion of the current death-row population: 30 out of a total of 2,186 inmates, or 1.37 percent. NAACP Legal Defense and Educational Fund, Inc. (LDF) , Death Row, U.S.A. (Mar. 1, 1989) . [2] [p387] Eleven minors were sentenced to die in 1982; 9 in 1983; 6 in 1984; 5 in 1985; 7 in 1986; and 2 in 1987. App. N to Brief for the Office of the Capital Collateral Representative for the State of Florida as Amicus Curiae (hereafter OCCR Brief) . ”

“ They are particularly impressionable and subject to peer pressure, see Eddings v. Oklahoma, 455 U.S. 104, 115 (1982) , and prone to "experiment, risk-taking and bravado," Task Force 3. They lack "experience, perspective, and judgment." Bellotti v. Baird, 443 U.S. 622, 635 (1979) . See generally Thompson, supra, at 843-844, n. 43; Brief for American Society for Adolescent Psychiatry et al. as Amici Curiae (reviewing scientific evidence) . ”

“ App. in No. 87-6026, p. 5. The Circuit Court found Wilkins [p400] competent to stand trial. [12] Record in No. 87-6026, p. 42. Wilkins then waived counsel, with the avowed intention of pleading guilty and seeking the death penalty, id. at 42, 55, and the Circuit Court accepted the waiver, id. at 84, and later Wilkins' guilty plea, id. at 144-145. Wilkins was not represented by counsel at sentencing. See id. at 188-190. Presenting no mitigating evidence, he told the court he would prefer the death penalty to life in prison, id. ”