Supreme Court Overrules Death Penalty for Minors

High Court Ends Death Penalty for Youths (AP)

The Supreme Court ruled Tuesday that the Constitution forbids the execution of killers who were under 18 when they committed their crimes, ending a practice used in 19 states. The 5-4 decision throws out the death sentences of about 70 juvenile murderers and bars states from seeking to execute minors for future crimes. The executions, the court said, were unconstitutionally cruel.

It was the second major defeat at the high court in three years for supporters of the death penalty. Justices in 2002 banned the execution of the mentally retarded, also citing the Constitution’s Eighth Amendment ban on cruel and unusual punishments. The court had already outlawed executions for those who were 15 and younger when they committed their crimes. Tuesday’s ruling prevents states from making 16- and 17-year-olds eligible for execution.

Justice Anthony Kennedy, writing for the majority, noted that most states don’t allow the execution of juvenile killers and those that do use the penalty infrequently. The trend, he noted, was to abolish the practice. “Our society views juveniles … as categorically less culpable than the average criminal,” Kennedy wrote.


Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas, as expected, voted to uphold the executions. They were joined by Justice Sandra Day O’Connor.

Currently, 19 states allow executions for people under age 18: Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, Utah, Texas and Virginia.

In a dissent, Scalia decried the decision, arguing that there has been no clear trend of declining juvenile executions to justify a growing consensus against the practice. “The court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: ‘In the end our own judgment will be brought to bear on the question of the acceptability of the death penalty,’ he wrote in a 24-page dissent. “The court thus proclaims itself sole arbiter of our nation’s moral standards,” Scalia wrote.

Scalia’s right. I’m not a big fan of capital punishment for minors but find it incomprehensible that it could suddenly be unconstitutional. The 8th Amendment was ratified in 1791. The fact that 19 states still allowed youth executions until this morning belies the argument that the citizenry considers the practice cruel.

Update (1348): Steve Bainbridge and Steven Taylor have more analysis.

For those on the Left critical of my strict constructionist interpretation, see my post on yesterday’s ruling in the Padilla case. There are some strong advantages to having judges interpret the Constitution as written.

Update (3-2): Matt Yglesias agrees, observing,

The “evolving consensus” business is weird and curiously circular. It seems extraordinarily inconsistent with the general principles of American federalism to take the fact that most states don’t do something as evidence that a minority of states should be forbidden from doing it.

Quite right.

Tony Blankley adds, “As a former prosecutor, I am convinced that from time to time juries find before them 16- or 17-year-old defendants who understand full well the vicious nature of their murders, and deserve — after receiving the full panoply of due process — to be fried, gassed, hanged, shot, injected or otherwise sent promptly to Hell.”

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. bryan says:

    It was the second major defeat at the high court in three years for supporters of the death penalty.

    I don’t know that I’d call either of these defeats “major defeats” for death penalty supporters. It curtails a very small proportion of potential cases, and the death penalty is still legal.

    Rather, this sounds like poor writing trying to drum up conflict.

  2. Michael says:

    Just once, I’d like to see a conservative admit that, just because the citizenry likes something, it doesn’t make it right (or constitutional.)

    Did it ever occur to you that one of the reasons we have courts is to provide a check to the will of the majority?

  3. James Joyner says:


    Such is the way to tyranny.

    We have the Constitution to check the will of the majority. We’ve declared certain things off limits to a simple majority, such as the right to abridge freedom of press, speech, assembly, arms ownership, illegal searches, etc. The Constitution has not been amended to preclude execution of minors. Other things, like amending the Constitution, requires a supermajority.

    The 8th Amendment protects against cruel and unusual punishment. Executing minors so sentenced by juries was constitutional from the day the Constitution was ratified in 1789 until this morning.

    This isn’t the Court attempting to enforce the Constitutionally protected rights of a minority from a majority. It’s the preference of 5 justices being substituted for that of the duly elected governments of 19 states.

  4. Anderson says:

    I don’t think the present case is particularly admirable jurisprudence, but this hard-core “1791 or bust” stuff is hard to take.

    Scalia, winningly, points out that in 1791, the law allowed a *7-year-old* to be executed for murder. (Gotta admire his rhetorical judgment–not.) So much for 1791.

    That said, I can’t really see where an 18-year-old is executable and a 17-year-old isn’t; I would’ve gone with O’Connoresque fuzziness.

  5. James Joyner says:

    Anderson: I don’t argue that we have to be bound forever by the status quo 1791. My argument is that, absent a Constitutional amendment, that which isn’t precluded by the Constitution of 1791 isn’t unconstitutional.

    We now consider the execution of 7-year-olds out of bounds and, through the enactment of the legislatures of the several states, no longer do them. The Constitution doesn’t REQUIRE the execution of minors–or anyone, for that matter–it merely PERMITS it given due process of law.

  6. Karl Maher says:

    Excerpt from my post at Vote for Judges:

    Kennedy also, again, wrote a majority opinion overturning recent precedent. Lawrence overturned the 1986 decision in Bowers v. Georgia. Roper overturns the court’s 1989 decision in Stanford v. Kentucky.

    In other words, if we’re liberalizing U.S. law from the bench, stare decisis is yesterday’s news. Criticize Roe v. Wade as a judicial abomination, on the other hand, and you can’t even get seat on a circuit court. As long as the Democrats have 41 votes in the Senate, that is. See Pryor, William Jr.

  7. Anderson says:

    Yes, Kennedy is turning into quite the mystery man, isn’t he? Given his fondness for foreign law, an international man of mystery.

    I don’t think Mr. Joyner & I are going to agree on the Constitution’s ontological status, which is okay by me. Re: the 8th Amendment particularly, I think that “cruel and unusual” are terms that almost seem designed to imply evolving (devolving, if you like) standards. They didn’t say “cruel and unusual at the time this document was ratified.”

    But again, I don’t think much of today’s opinion, which is a dubious fix for a dubious problem, and will doubtless hand Bush a big stick for the upcoming Confirmation Wars.

    (Kennedy, agent provocateur? that *would* make him an International Man of Mystery! “He may look dumb, but that’s just a disguise,” as Charlie Daniels puts it.)

  8. Anderson says:

    Oh, & I meant to congratulate JJ on his Padilla post. The world needs more conservatives (and liberals) who think for themselves, & JJ is a fine example of the former.

  9. “Cruel and unusual” is a unique phrase in the Constitution, because by the very definition of its words, its meaning will change over time — to a much greater extent than any other phrase in the Constitution.

    If a given punishment becomes imposed less and less, eventually we can say it’s unusual. If it is also cruel, then it’s “cruel and unusual” and therefore it’s prohibited. Execution of minors in the United States has by now become so rare that this punishment has finally met the standard of “cruel and unusual.”

    Lots of punishments are cruel. It is cruel (in my opinion) to lock someone up in prison for 20 years. The fact that 19 states had laws on allowing execution of minors says nothing about the cruelty or the unusuality of the punishment. The critical fact is that it’s hardly ever imposed, and therefore it has become unusual.

  10. So everyone cheering about this ruling, think about this: As a result of this, the “jail without possibility of parole” will take effect or pass in most states.

    Now, you think executing someone is cruel, but putting someone who is 17 in jail until they die of old age is okay? With life expectencies increasing, you’re talking about someone doing 60 years, maybe 70, behind bars.

    And they will have no hope of EVER getting out. Well, maybe they’ll get lucky like Dahmer and get knifed in the showers some time over their half century plus in there.

  11. James Joyner says:

    Joel: Sure, “cruel and unusual” is an evolving standard. But it has evolved quite nicely through the democratic process.

    Capital punishment is hardly unusual in our society. One imagines, though, that relatively few minors will warrant a death sentence given that their age will be considered a mitigating factor in sentencing. One presumes, therefore, that those actually sentenced to death were the ones deemed to be especially despicable and culpable.

  12. Joel Thomas says:

    If the standard has to be what constituted cruel and unusal punishment in 1789, then it seems to me that under the second amendment, one only has the right to bear arms that were manufactured then, not what can be manufactured now. Or freedom of speech should only apply to words that were in existence when the Constitution was written.

  13. Just some guy says:

    Heh. So the Left just saved one of the Beltway Snipers from the death penalty! That’s right, Lee Boyd Malvo was 17 when he murdered all those people and terrorized the nation’s capitol on behalf of Al Qaeda in the aftermath of September 11. And now, he has been saved from the death penalty.

    See Director Mitch’s comment above. How long until an unelected liberal Federal judge lets this poor dear out of prison because long sentences for murderers under the age of 18 are “cruel and unusual”? Five years? Ten?

    I’m sure he will come out a well-adjusted and patriotic American.

  14. Jack Tanner says:

    Just a question but how would it be justified to try a 16 or 17 year old as an adult but not sentence them as an adult? If they are deemed culpable to stand trial why would they receive a sentencing exception?

  15. Elrod says:

    Thank God for this Court. The juvenile death penalty is an abomination. It’s not just a question of how many states have changed their laws, but how rarely juries wish to apply it because, well, it’s patently “cruel and unusal” and the citizenry already know it. So why haven’t more legislatures passed laws to reflect this fact? Because until very recently nobody could get elected to office unless they promised to streamline the road to the chair. Americans rediscovered their conscience over the last several years and, beginning with Illinois, have started to change the political climate such that legislatures can begin to restrict this grossly immoral practice. The Supreme Court recognized this and did humanity and America a great service.

  16. Katherine says:

    ” don’t argue that we have to be bound forever by the status quo 1791. My argument is that, absent a Constitutional amendment, that which isn’t precluded by the Constitution of 1791 isn’t unconstitutional.”

    Anderson: Beware this argument. It is a rhetorical trick mainly used to pretty up an ugly argument.

    Antonin Scalia used it in Romer v. Evans: Colorado isn’t excluding gays from the protection of the Constitution, it’s just requiring them to seek a different remedy. Right. In exactly that Dredd Scott merely forced opponents of slavery to seek another remedy. In exactly the sensee that laws banning miscegenation don’t exclude interracial couples from the equal protection of the law, it just makes them seek another remedy.

    This is also the exact same argument that John Yoo uses to justify telling the President that it’s legal to torture people. He explained in the New Yorker that the only “constitutional remedy is impeachment.” That’s much prettier than saying that “Unless and until he is impeached and removed from office, the President can violate the law at will.” But it’s the EXACT SAME ARGUMENT.

  17. Jack Tanner says:

    Sorry bleeding heart crybabies but explain how it’s cruel, unusual or immoral to execute John Lee Malvo. How many people did he execute in cold blood like they were targets at the carnival? Your perverse sanctimony about executing murderous sociopaths like Malvo or Kleibold just insults their victims.

  18. Joel Thomas says:


    I think there is a good possibility (I admit I’m not sure) that Christ would oppose executing juveniles. Jesus is a lot of things, perhaps, but not a bleeding heart crybaby.

  19. Tiffany says:

    I am totally against minors being sentanced to death. its wrong. Why should minors who have been influenced by the people around him be put to death? I know they should have known it was wrong but who could blam them? I also know that they have a mind of their own and a self conscience so they made the dicision to do the crime but they still have a life to life even if it means spending some of it in jail.