OP-ED: 10 Years After Roper, Some Juveniles Still Waiting for Decent Treatment

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Andrea L. DennisOn Feb. 28, 2005, 71 people who were 16 or 17 when they committed homicide were under death sentences. That was all about to change with the stroke of a pen.

The following day, March 1, 2005, the Supreme Court’s 5-4 decision in Roper v. Simmons abolished the death penalty for crimes committed by individuals under 18 on the grounds that their executions would be cruel and unusual punishment in violation of the Eighth Amendment. The Missouri Supreme Court had already declared Christopher Simmons’ death sentence unconstitutional, resentencing him to life imprisonment without the possibility of parole (LWOP). But the fates of those other 71 were drastically rewritten because of Simmons’ case.

Almost 15 years earlier, in Stanford v. Kentucky, the court had authorized death sentences for offenders at least 16 years old when their crimes were committed. So the court’s reversal in Roper was remarkable by itself. Equally if not more notable, however, was the majority’s reasoning underlying its decision.

First, the court concluded that state execution of juvenile offenders was out of sync with prevailing norms. By the time of Roper, domestic and international consensus weighed heavily against the execution of an individual who committed a criminal offense while a juvenile. Thus, decent societies did not execute youthful offenders.

Second, the court determined that juvenile offenders are less morally culpable and have greater potential for rehabilitation than adult offenders. As explained to the Roper court, developmental science indicated that juveniles are fundamentally different from adults in terms of impulse control, risk assessment, peer pressure and understanding the implications of their actions. Consequently, juvenile offenders are undeserving of punishment by death.

In the year following Roper, state legislatures responded differently to come into compliance with the decision. Some states enacted new legislation raising the minimum age of those eligible for death sentences to age 18 at the time of the offense. Other states did not enact new legislation, instead seemingly relying on the opinion alone as authoritative.

Undoubtedly Roper was another step in the court’s incremental narrowing of the death penalty and possibly foreshadows its nationwide abolition. But it has also had a significant impact far beyond the fight to end capital punishment.

In just over a handful of years following Roper, the court three different times relied upon the ruling. In 2010, the court declared in Graham v. Florida that LWOP sentences for juvenile offenders of nonhomicide crimes were cruel and unusual and that juvenile nonhomicide offenders must be given a meaningful opportunity for release.

One year later, in 2011 the court applied the science underlying Roper to law enforcement practices. In J.D.B. v. North Carolina the court held that a juvenile suspect’s age is a factor in reviewing the lawfulness of custodial interrogations. Finally, in 2012 the court in Miller v. Alabama struck down mandatory LWOP sentences for juvenile offenders.

The determination to treat children differently from adults has not been limited to the Supreme Court. Ten years after Roper, the decision continues to provide fodder for other legal stakeholders to embrace positive, youth-centered changes in juvenile and criminal justice.

States in recent years have expanded juvenile court jurisdiction, reversing previous narrowing efforts. Some have increased the maximum age limit for juvenile court jurisdiction while others have decreased the categories of offenses for which youth must or may be transferred from juvenile court to adult criminal court.

Juvenile defenders in the trenches are applying Roper after receiving training on the incorporation of developmental science into litigation strategies. Attorneys are reviving arguments and defenses that juvenile offenders are unable to form the culpability required to prove a crime has been committed, or have diminished capacity to do so. They are fortifying sentencing mitigation arguments with the scientific findings. Finally, defenders are applying developmental science to engage in age-appropriate counseling and improve client decision-making.

Notwithstanding the victory in Roper and the advances resulting from the opinion, the limits of Roper’s utility have not yet been reached and children’s advocates should push further.

To date, some jurisdictions have completely abolished LWOP sentences for juvenile offenders. Nevertheless, children’s advocates must continue efforts to have the Supreme Court absolutely abolish LWOP sentences for juvenile offenders. The court did not rule upon this issue in Miller and has not since clarified Miller’s retroactivity.

Additionally, more work needs to be done to ensure compliance with Miller. Some states have been slow to resentence youths previously sentenced to LWOP and others have been resistant, resentencing youths to the maximum allowable short of life.

And Roper may be used to innovate new legal strategies in the battle against negative collateral consequences stemming from juvenile and criminal justice involvement. If youthful offenders are essentially deserving of differential treatment than adult offenders, there seems to be no reason why offenses committed as a juvenile should be allowed to support future sentencing enhancements, witness impeachment, or sex offender and DNA registry requirements. Similarly, given youths’ unique amenability to rehabilitation, offenses committed by juveniles should not be allowed to impair access to education, employment, lawful immigration status or receipt of government benefits.

Lastly, the application of Roper to the child welfare context is largely untapped. The decision did not ultimately turn on international law. But the court’s endorsement therein of foreign standards as a barometer for U.S. law should inform child welfare and protection systems.

Current domestic approaches to child protection and caretaking are woefully inconsistent with modern international standards. Yet recent arguments from within the child welfare community to come into compliance have fallen on deaf ears.

Roper should suggest otherwise. Roper enshrined within the law that children are different from adults and the U.S. can do better by its children. And in its first 10 years, Roper has offered much to capital punishment foes and juvenile justice reformers, making it worthy of celebration for these reasons alone. Notwithstanding, there’s more work to be done and Roper provides an effective tool to do so for children everywhere.

Andrea L. Dennis is an associate professor of law at the University of Georgia School of Law where she teaches and researches criminal law and procedure, family law and juvenile law.

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