The U.S. Supreme Court today handed down its ruling in Roper v. Simmons and held, in a 5-4 decision, that the death penalty could not constitutionally be applied to juvenile offenders age 16 and 17. I discussed the potential implications of this case for parental consent laws a week ago in my post of February 23. The Supreme Court has now confirmed in its majority opinion the concerns that I raised last week.

Justice Kennedy writing for the majority referred favorably to the Amicus brief that I quoted from and which was submitted to the court by American Medical Association, the American Psychiatric Association and other groups that deal with adolescents.

Justice Kennedy in relevant parts in his opinion says the following:

“Three general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders. First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm, ‘[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.’ …(‘Even the normal 16-year-old customarily lacks the maturity of an adult’). It has been noted that ‘adolescents are overrepresented statistically in virtually every category of reckless behavior.’ …In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent. …

“The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure. …(‘[Y]outh is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage’). This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment. …

“The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. …

“These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means ‘their irresponsible conduct is not as morally reprehensible as that of an adult.’ …Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. … The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. Indeed, ‘[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.’ …(‘For most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood’).

“In Thompson, a plurality of the Court recognized the import of these characteristics with respect to juveniles under 16, and relied on them to hold that the Eighth Amendment prohibited the imposition of the death penalty on juveniles below that age. … We conclude the same reasoning applies to all juvenile offenders under 18.”

Justice Kennedy concluded:

“Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. For the reasons we have discussed, however, a line must be drawn. The plurality opinion in Thompson drew the line at 16. In the intervening years the Thompson plurality’s conclusion that offenders under 16 may not be executed has not been challenged. The logic of Thompson extends to those who are under 18. The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at which the line for death eligibility ought to rest.”

Justice O’Connor in a concurring opinion argued for the courts being able to make a determination of adolescent maturity on a case by case basis and thus having the power to execute some juveniles.

O’Connor stated her argument:

“It is beyond cavil that juveniles as a class are generally less mature, less responsible, and less fully formed than adults, and that these differences bear on juveniles’ comparative moral culpability. …(‘Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults’). But even accepting this premise, the Court’s proportionality argument fails to support its categorical rule.

“First, the Court adduces no evidence whatsoever in support of its sweeping conclusion … that it is only in ‘rare’ cases, if ever, that 17-year-old murderers are sufficiently mature and act with sufficient depravity to warrant the death penalty. The fact that juveniles are generally less culpable for their misconduct than adults does not necessarily mean that a 17-year-old murderer cannot be sufficiently culpable to merit the death penalty. At most, the Court’s argument suggests that the average 17-year-old murderer is not as culpable as the average adult murderer. But an especially depraved juvenile offender may nevertheless be just as culpable as many adult offenders considered bad enough to deserve the death penalty. Similarly, the fact that the availability of the death penalty may be less likely to deter a juvenile from committing a capital crime does not imply that this threat cannot effectively deter some 17-year-olds from such an act. Surely there is an age below which no offender, no matter what his crime, can be deemed to have the cognitive or emotional maturity necessary to warrant the death penalty. But at least at the margins between adolescence and adulthood–and especially for 17-year-olds such as respondent–the relevant differences between ‘adults’ and ‘juveniles’ appear to be a matter of degree, rather than of kind. It follows that a legislature may reasonably conclude that at least some 17-year-olds can act with sufficient moral culpability, and can be sufficiently deterred by the threat of execution, that capital punishment may be warranted in an appropriate case.”

Leave it up to Justice Scalia in his dissent to go to the heart of the matter:

“We need not look far to find studies contradicting the Court’s conclusions. As petitioner points out, the American Psychological Association (APA), which claims in this case that scientific evidence shows persons under 18 lack the ability to take moral responsibility for their decisions, has previously taken precisely the opposite position before this very Court. In its brief in Hodgson v. Minnesota, 497 U. S. 417 (1990), the APA found a ‘rich body of research’ showing that juveniles are mature enough to decide whether to obtain an abortion without parental involvement. … The APA brief, citing psychology treatises and studies too numerous to list here, asserted: ‘[B]y middle adolescence (age 14-15) young people develop abilities similar to adults in reasoning about moral dilemmas, understanding social rules and laws, [and] reasoning about interpersonal relationships and interpersonal problems.’ …Given the nuances of scientific methodology and conflicting views, courts–which can only consider the limited evidence on the record before them–are ill equipped to determine which view of science is the right one. Legislatures ‘are better qualified to weigh and “evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.” ‘ …

“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.

“That ‘almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent,’ … is patently irrelevant–and is yet another resurrection of an argument that this Court gave a decent burial in Stanford. (What kind of Equal Justice under Law is it that–without so much as a ‘Sorry about that’–gives as the basis for sparing one person from execution arguments explicitly rejected in refusing to spare another?) As we explained in Stanford, it is ‘absurd to think that one must be mature enough to drive carefully, to drink responsibly, or to vote intelligently, in order to be mature enough to understand that murdering another human being is profoundly wrong, and to conform one’s conduct to that most minimal of all civilized standards.’ Serving on a jury or entering into marriage also involve decisions far more sophisticated than the simple decision not to take another’s life.

“Moreover, the age statutes the Court lists ‘set the appropriate ages for the operation of a system that makes its determinations in gross, and that does not conduct individualized maturity tests.’ … The criminal justice system, by contrast, provides for individualized consideration of each defendant. In capital cases, this Court requires the sentencer to make an individualized determination, which includes weighing aggravating factors and mitigating factors, such as youth. … In other contexts where individualized consideration is provided, we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations. For instance, we have struck down abortion statutes that do not allow minors deemed mature by courts to bypass parental notification provisions. See, e.g., Bellotti v. Baird, 443 U. S. 622, 643-644 (1979) (opinion of Powell, J.); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 74-75 (1976). 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.”

If we are relying on Justice Scalia to defend us against strict parental consent laws, then we are in serious trouble! Scalia could take today’s majority decision and mandate age 18 as the age of consent for abortion without exception.

As I suggested in my earlier post, we need an analysis of the mental, moral and emotional capacity of teenagers to make various decisions, including having an abortion, giving birth, raising a child and giving a child up for adoption. These decisions may require differing amounts of mental, moral and emotional maturity and decision-making skills. That said, we must be consistent in when, if ever, we support a teen’s autonomy and when we support bringing in her parents or the courts to protect her and help her. A case by case methodology is supportable. I just wish Justice Scalia hadn’t been the one to say it.