OPINION OF THE COURT ROPER V. SIMMONS 543 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-633 DONALD P. ROPER, SUPERINTENDENT, POTOSI
CORRECTIONAL CENTER, PETITIONER v. CHRISTOPHER SIMMONS

															on writ of certiorari to the supreme court of
missouri

															[March 1, 2005]

															   Justice Kennedy delivered the
opinion of the Court.

															   This case requires us to address,
for the second time in a decade and a half, whether it is
permissible under the Eighth and Fourteenth Amendments to the
Constitution of the United States to execute a juvenile offender
who was older than 15 but younger than 18 when he committed a
capital crime. In Stanford v. Kentucky , 492 U. S. 361 (1989), a divided Court
rejected the proposition that the Constitution bars capital
punishment for juvenile offenders in this age group. We reconsider
the question.

															I

															   At the age of 17, when he was
still a junior in high school, Christopher Simmons, the respondent
here, committed murder. About nine months later, after he had
turned 18, he was tried and sentenced to death. There is little
doubt that Simmons was the instigator of the crime. Before its
commission Simmons said he wanted to murder someone. In chilling,
callous terms he talked about his plan, discussing it for the most
part with two friends, Charles Benjamin and John Tessmer, then aged
15 and 16 respectively. Simmons proposed to commit burglary and
murder by breaking and entering, tying up a victim, and throwing
the victim off a bridge. Simmons assured his friends they could
“get away with it” because they were minors.

															   The three met at about 2 a.m. on
the night of the murder, but Tessmer left before the other two set
out. (The State later charged Tessmer with conspiracy, but dropped
the charge in exchange for his testimony against Simmons.) Simmons
and Benjamin entered the home of the victim, Shirley Crook, after
reaching through an open window and unlocking the back door.
Simmons turned on a hallway light. Awakened, Mrs. Crook called out,
“Who’s there?” In response Simmons entered Mrs. Crook’s bedroom,
where he recognized her from a previous car accident involving them
both. Simmons later admitted this confirmed his resolve to murder
her.

															   Using duct tape to cover her eyes and mouth
and bind her hands, the two perpetrators put Mrs. Crook in her
minivan and drove to a state park. They reinforced the bindings,
covered her head with a towel, and walked her to a railroad trestle
spanning the Meramec River. There they tied her hands and feet
together with electrical wire, wrapped her whole face in duct tape
and threw her from the bridge, drowning her in the waters
below.

															   By the afternoon of September 9, Steven Crook
had returned home from an overnight trip, found his bedroom in
disarray, and reported his wife missing. On the same afternoon
fishermen recovered the victim’s body from the river. Simmons,
meanwhile, was bragging about the killing, telling friends he had
killed a woman “because the bitch seen my face.”

															   The next day, after receiving information of
Simmons’ involvement, police arrested him at his high school and
took him to the police station in Fenton, Missouri. They read him
his Miranda rights. Simmons waived his right to an
attorney and agreed to answer questions. After less than two hours
of interrogation, Simmons confessed to the murder and agreed to
perform a videotaped reenactment at the crime scene.

															   The State charged Simmons with burglary,
kidnaping, stealing, and murder in the first degree. As Simmons was
17 at the time of the crime, he was outside the criminal
jurisdiction of Missouri’s juvenile court system. See Mo. Rev.
Stat. §§211.021 (2000) and 211.031 (Supp. 2003). He was tried as an
adult. At trial the State introduced Simmons’ confession and the
videotaped reenactment of the crime, along with testimony that
Simmons discussed the crime in advance and bragged about it later.
The defense called no witnesses in the guilt phase. The jury having
returned a verdict of murder, the trial proceeded to the penalty
phase.

															   The State sought the death penalty. As
aggravating factors, the State submitted that the murder was
committed for the purpose of receiving money; was committed for the
purpose of avoiding, interfering with, or preventing lawful arrest
of the defendant; and involved depravity of mind and was
outrageously and wantonly vile, horrible, and inhuman. The State
called Shirley Crook’s husband, daughter, and two sisters, who
presented moving evidence of the devastation her death had brought
to their lives.

															   In mitigation Simmons’ attorneys first called
an officer of the Missouri juvenile justice system, who testified
that Simmons had no prior convictions and that no previous charges
had been filed against him. Simmons’ mother, father, two younger
half brothers, a neighbor, and a friend took the stand to tell the
jurors of the close relationships they had formed with Simmons and
to plead for mercy on his behalf. Simmons’ mother, in particular,
testified to the responsibility Simmons demonstrated in taking care
of his two younger half brothers and of his grandmother and to his
capacity to show love for them.

															   During closing arguments, both the prosecutor
and defense counsel addressed Simmons’ age, which the trial judge
had instructed the jurors they could consider as a mitigating
factor. Defense counsel reminded the jurors that juveniles of
Simmons’ age cannot drink, serve on juries, or even see certain
movies, because “the legislatures have wisely decided that
individuals of a certain age aren’t responsible enough.” Defense
counsel argued that Simmons’ age should make “a huge difference to
[the jurors] in deciding just exactly what sort of punishment to
make.” In rebuttal, the prosecutor gave the following response:
“Age, he says. Think about age. Seventeen years old. Isn’t that
scary? Doesn’t that scare you? Mitigating? Quite the contrary I
submit. Quite the contrary.”

															   The jury recommended the death penalty after
finding the State had proved each of the three aggravating factors
submitted to it. Accepting the jury’s recommendation, the trial
judge imposed the death penalty.

															   Simmons obtained new counsel, who moved in the
trial court to set aside the conviction and sentence. One argument
was that Simmons had received ineffective assistance at trial. To
support this contention, the new counsel called as witnesses
Simmons’ trial attorney, Simmons’ friends and neighbors, and
clinical psychologists who had evaluated him.

															   Part of the submission was that Simmons was
“very immature,” “very impulsive,” and “very susceptible to being
manipulated or influenced.” The experts testified about Simmons’
background including a difficult home environment and dramatic
changes in behavior, accompanied by poor school performance in
adolescence. Simmons was absent from home for long periods,
spending time using alcohol and drugs with other teenagers or young
adults. The contention by Simmons’ postconviction counsel was that
these matters should have been established in the sentencing
proceeding.

															   The trial court found no constitutional
violation by reason of ineffective assistance of counsel and denied
the motion for postconviction relief. In a consolidated appeal from
Simmons’ conviction and sentence, and from the denial of
postconviction relief, the Missouri Supreme Court affirmed. State v. Simmons , 944 S. W. 2d 165, 169 (en
banc), cert. denied, 522 U. S. 953 (1997).
The federal courts denied Simmons’ petition for a writ of habeas
corpus. Simmons v. Bowersox , 235 F. 3d 1124,
1127 (CA8), cert. denied, 534 U. S. 924 (2001).

															   After these proceedings in Simmons’ case had
run their course, this Court held that the Eighth and Fourteenth
Amendments prohibit the execution of a mentally retarded person. Atkins v. Virginia, 536 U. S. 304 (2002).
Simmons filed a new petition for state postconviction relief,
arguing that the reasoning of Atkins established that the
Constitution prohibits the execution of a juvenile who was under 18
when the crime was committed.

															   The Missouri Supreme Court agreed. State
ex rel. Simmons v. Roper , 112 S. W. 3d 397
(2003) (en banc). It held that since Stanford ,

															“a national consensus has developed against the
execution of juvenile offenders, as demonstrated by the fact that
eighteen states now bar such executions for juveniles, that twelve
other states bar executions altogether, that no state has lowered
its age of execution below 18 since Stanford , that five
states have legislatively or by case law raised or established the
minimum age at 18, and that the imposition of the juvenile death
penalty has become truly unusual over the last decade.” 112
S. W. 3d, at 399.

															On this reasoning it set aside Simmons’ death
sentence and resentenced him to “life imprisonment without
eligibility for probation, parole, or release except by act of the
Governor.” Id., at 413.

															   We granted certiorari, 540 U. S. 1160 (2004),
and now affirm.

															II

															   The Eighth Amendment provides:
“Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” The provision is
applicable to the States through the Fourteenth Amendment. Furman v. Georgia , 408 U. S. 238 , 239 (1972) (per
curiam); Robinson v. California , 370 U. S. 660 , 666–667
(1962); Louisiana ex rel. Francis v. Resweber , 329 U. S. 459 , 463
(1947) (plurality opinion). As the Court explained in Atkins , the Eighth Amendment guarantees individuals the
right not to be subjected to excessive sanctions. The right flows
from the basic “ ‘precept of justice that punishment for crime
should be graduated and proportioned to [the] offense.’ ” 536
U. S., at 311 (quoting Weems v. United States , 217 U. S. 349 ,
367 (1910)). By protecting even those convicted of heinous crimes,
the Eighth Amendment reaffirms the duty of the government to
respect the dignity of all persons.

															   The prohibition against “cruel
and unusual punishments,” like other expansive language in the
Constitution, must be interpreted according to its text, by
considering history, tradition, and precedent, and with due regard
for its purpose and function in the constitutional design. To
implement this framework we have established the propriety and
affirmed the necessity of referring to “the evolving standards of
decency that mark the progress of a maturing society” to determine
which punishments are so disproportionate as to be cruel and
unusual. Trop v. Dulles , 356 U. S. 86 , 100–101
(1958) (plurality opinion).

															   In Thompson v. Oklahoma , 487 U. S. 815 (1988), a plurality of the Court determined that our standards of
decency do not permit the execution of any offender under the age
of 16 at the time of the crime. Id., at 818–838 (opinion
of Stevens, J., joined by Brennan, Marshall, and Blackmun, JJ.).
The plurality opinion explained that no death penalty State that
had given express consideration to a minimum age for the death
penalty had set the age lower than 16. Id., at 826–829.
The plurality also observed that “[t]he conclusion that it would
offend civilized standards of decency to execute a person who was
less than 16 years old at the time of his or her offense is
consistent with the views that have been expressed by respected
professional organizations, by other nations that share our
Anglo-American heritage, and by the leading members of the Western
European community.” Id., at 830. The opinion further
noted that juries imposed the death penalty on offenders under 16
with exceeding rarity; the last execution of an offender for a
crime committed under the age of 16 had been carried out in 1948,
40 years prior. Id., at 832–833.

															   Bringing its independent judgment to bear on
the permissibility of the death penalty for a 15-year-old offender,
the Thompson plurality stressed that “[t]he 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.” Id., at 835.
According to the plurality, the lesser culpability of offenders
under 16 made the death penalty inappropriate as a form of
retribution, while the low likelihood that offenders under 16
engaged in “the kind of cost-benefit analysis that attaches any
weight to the possibility of execution” made the death penalty
ineffective as a means of deterrence. Id., at 836–838.
With Justice O’Connor concurring in the judgment on narrower
grounds, id. , at 848–859, the Court set aside the death
sentence that had been imposed on the 15-year-old offender.

															   The next year, in Stanford v. Kentucky , 492 U. S. 361 (1989), the Court, over
a dissenting opinion joined by four Justices, referred to
contemporary standards of decency in this country and concluded the
Eighth and Fourteenth Amendments did not proscribe the execution of
juvenile offenders over 15 but under 18. The Court noted that 22 of
the 37 death penalty States permitted the death penalty for
16-year-old offenders, and, among these 37 States, 25 permitted it
for 17-year-old offenders. These numbers, in the Court’s view,
indicated there was no national consensus “sufficient to label a
particular punishment cruel and unusual.” Id., at 370–371.
A plurality of the Court also “emphatically reject[ed]” the
suggestion that the Court should bring its own judgment to bear on
the acceptability of the juvenile death penalty. Id., at
377–378 (opinion of Scalia, J., joined by Rehnquist, C. J.,
and White and Kennedy, JJ.); see also id. , at 382
(O’Connor, J., concurring in part and concurring in judgment)
(criticizing the plurality’s refusal “to judge whether the
‘ “nexus between the punishment imposed and the defendant’s
blameworthiness” ’ is proportional”).

															   The same day the Court decided Stanford , it held that the Eighth Amendment did not
mandate a categorical exemption from the death penalty for the
mentally retarded. Penry v. Lynaugh , 492 U. S. 302 (1989). In
reaching this conclusion it stressed that only two States had
enacted laws banning the imposition of the death penalty on a
mentally retarded person convicted of a capital offense. Id., at 334. According to the Court, “the two state
statutes prohibiting execution of the mentally retarded, even when
added to the 14 States that have rejected capital punishment
completely, [did] not provide sufficient evidence at present of a
national consensus.” Ibid. Three Terms ago the subject was reconsidered
in Atkins . We held that standards of decency have evolved
since Penry and now demonstrate that the execution of the
mentally retarded is cruel and unusual punishment. The Court noted
objective indicia of society’s standards, as expressed in
legislative enactments and state practice with respect to
executions of the mentally retarded. When Atkins was
decided only a minority of States permitted the practice, and even
in those States it was rare. 536 U. S., at 314–315. On the basis of
these indicia the Court determined that executing mentally retarded
offenders “has become truly unusual, and it is fair to say that a
national consensus has developed against it.” Id., at
316.

															   The inquiry into our society’s evolving
standards of decency did not end there. The Atkins Court
neither repeated nor relied upon the statement in Stanford that the Court’s independent judgment has no bearing on the
acceptability of a particular punishment under the Eighth
Amendment. Instead we returned to the rule, established in
decisions predating Stanford , that “ ‘the
Constitution contemplates that in the end our own judgment will be
brought to bear on the question of the acceptability of the death
penalty under the Eighth Amendment.’ ” 536 U. S. , at
312 (quoting Coker v. Georgia , 433 U. S. 584 , 597 (1977) (plurality
opinion)). Mental retardation, the Court said, diminishes personal
culpability even if the offender can distinguish right from wrong.
536 U. S. , at 318. The impairments of mentally retarded
offenders make it less defensible to impose the death penalty as
retribution for past crimes and less likely that the death penalty
will have a real deterrent effect. Id., at 319–320. Based
on these considerations and on the finding of national consensus
against executing the mentally retarded, the Court ruled that the
death penalty constitutes an excessive sanction for the entire
category of mentally retarded offenders, and that the Eighth
Amendment “ ‘places a substantive restriction on the State’s
power to take the life’ of a mentally retarded offender.” Id., at 321 (quoting Ford v. Wainwright, 477 U. S. 399 , 405 (1986)).

															   Just as the Atkins Court reconsidered
the issue decided in Penry , we now reconsider the issue
decided in Stanford . The beginning point is a review of
objective indicia of consensus, as expressed in particular by the
enactments of legislatures that have addressed the question. This
data gives us essential instruction. We then must determine, in the
exercise of our own independent judgment, whether the death penalty
is a disproportionate punishment for juveniles.

															III

															A

															The evidence of national consensus against the
death penalty for juveniles is similar, and in some respects
parallel, to the evidence Atkins held sufficient to
demonstrate a national consensus against the death penalty for the
mentally retarded. When Atkins was decided, 30 States
prohibited the death penalty for the mentally retarded. This number
comprised 12 that had abandoned the death penalty altogether, and
18 that maintained it but excluded the mentally retarded from its
reach. 536 U. S., at 313–315. By a similar calculation in this
case, 30 States prohibit the juvenile death penalty, comprising 12
that have rejected the death penalty altogether and 18 that
maintain it but, by express provision or judicial interpretation,
exclude juveniles from its reach. See Appendix A, infra . Atkins emphasized that even in the 20 States without
formal prohibition, the practice of executing the mentally retarded
was infrequent. Since Penry , only five States had executed
offenders known to have an IQ under 70. 536 U. S., at 316. In the
present case, too, even in the 20 States without a formal
prohibition on executing juveniles, the practice is infrequent.
Since Stanford , six States have executed prisoners for
crimes committed as juveniles. In the past 10 years, only three
have done so: Okla- homa, Texas, and Virginia. See V. Streib, The
Juvenile Death Penalty Today: Death Sentences and Executions for
Juvenile Crimes, January 1, 1973–December 31, 2004, No. 76,
p. 4 (2005), available at http://www.law.
onu.edu/faculty/streib/documents/JuvDeathDec2004.pdf (last updated
Jan. 31, 2005) (as visited Feb. 25, 2005, and available in the
Clerk of Court’s case file). In December 2003 the Governor of
Kentucky decided to spare the life of Kevin Stanford, and commuted
his sentence to one of life imprisonment without parole, with the
declaration that “ ‘[w]e ought not be executing people who,
legally, were children.’ ” Lexington Herald Leader, Dec. 9,
2003, p. B3, 2003 WL 65043346. By this act the Governor
ensured Kentucky would not add itself to the list of States that
have executed juveniles within the last 10 years even by the
execution of the very defendant whose death sentence the Court had
upheld in Stanford v. Kentucky .

															   There is, to be sure, at least
one difference between the evidence of consensus in Atkins and in this case. Impressive in Atkins was the rate of
abolition of the death penalty for the mentally retarded. Sixteen
States that permitted the execution of the mentally retarded at the
time of Penry had prohibited the practice by the time we
heard Atkins . By contrast, the rate of change in reducing
the incidence of the juvenile death penalty, or in taking specific
steps to abolish it, has been slower. Five States that allowed the
juvenile death penalty at the time of Stanford have
abandoned it in the intervening 15 years—four through legislative
enactments and one through judicial decision. Streib, supra , at 5, 7; State v. Furman , 122
Wash. 2d 400, 858 P. 2d 1092 (1993) (en banc).

															   Though less dramatic than the change from Penry to Atkins (“telling,” to borrow the word Atkins used to describe this difference, 536 U. S., at
315, n. 18), we still consider the change from Stanford to this case to be significant. As noted in Atkins , with respect to the States that had abandoned the
death penalty for the mentally retarded since Penry , “[i]t
is not so much the number of these States that is significant, but
the consistency of the direction of change.” 536 U. S., at 315. In
particular we found it significant that, in the wake of Penry , no State that had already prohibited the execution
of the mentally retarded had passed legislation to reinstate the
penalty. 536 U. S. , at 315–316. The number of States that
have abandoned capital punishment for juvenile offenders since Stanford is smaller than the number of States that
abandoned capital punishment for the mentally retarded after Penry; yet we think the same consistency of direction of
change has been demonstrated. Since Stanford , no State
that previously prohibited capital punishment for juveniles has
reinstated it. This fact, coupled with the trend toward abolition
of the juvenile death penalty, carries special force in light of
the general popularity of anticrime legislation, Atkins , supra , at 315, and in light of the particular trend in
recent years toward cracking down on juvenile crime in other
respects, see H. Snyder & M. Sickmund, National Center for
Juvenile Justice, Juvenile Offenders and Victims: 1999 National
Report 89, 133 (Sept. 1999); Scott & Grisso, The Evolution of
Adolescence: A Developmental Perspective on Juvenile Justice
Reform, 88 J. Crim. L. & C. 137, 148 (1997). Any difference
between this case and Atkins with respect to the pace of
abolition is thus counterbalanced by the consistent direction of
the change.

															   The slower pace of abolition of the juvenile
death penalty over the past 15 years, moreover, may have a simple
explanation. When we heard Penry , only two death penalty
States had already prohibited the execution of the mentally
retarded. When we heard Stanford , by contrast, 12 death
penalty States had already prohibited the execution of any juvenile
under 18, and 15 had prohibited the execution of any juvenile under
17. If anything, this shows that the impropriety of executing
juveniles between 16 and 18 years of age gained wide recognition
earlier than the impropriety of executing the mentally retarded. In
the words of the Missouri Supreme Court: “It would be the ultimate
in irony if the very fact that the inappropriateness of the death
penalty for juveniles was broadly recognized sooner than it was
recognized for the mentally retarded were to become a reason to
continue the execution of juveniles now that the execution of the
mentally retarded has been barred.” 112 S. W. 3d, at 408,
n. 10.

															   Petitioner cannot show national consensus in
favor of capital punishment for juveniles but still resists the
conclusion that any consensus exists against it. Petitioner
supports this position with, in particular, the observation that
when the Senate ratified the International Covenant on Civil and
Political Rights (ICCPR), Dec. 19, 1966, 999 U. N. T. S. 171
(entered into force Mar. 23, 1976), it did so subject to the
President’s proposed reservation regarding Article 6(5) of that
treaty, which prohibits capital punishment for juveniles. Brief for
Petitioner 27. This reservation at best provides only faint support
for petitioner’s argument. First, the reservation was passed in
1992; since then, five States have abandoned capital punishment for
juveniles. Second, Congress considered the issue when enacting the
Federal Death Penalty Act in 1994, and determined that the death
penalty should not extend to juveniles. See 18 U. S. C. §3591.
The reservation to Article 6(5) of the ICCPR provides minimal
evidence that there is not now a national consensus against
juvenile executions.

															   As in Atkins , the objective indicia
of consensus in this case—the rejection of the juvenile death
penalty in the majority of States; the infrequency of its use even
where it remains on the books; and the consistency in the trend
toward abolition of the practice—provide sufficient evidence that
today our society views juveniles, in the words Atkins used respecting the mentally retarded, as “categorically less
culpable than the average criminal.” 536 U. S. , at
316.

															B

															   A majority of States have
rejected the imposition of the death penalty on juvenile offenders
under 18, and we now hold this is required by the Eighth
Amendment.

															   Because the death penalty is the
most severe punishment, the Eighth Amendment applies to it with
special force. Thompson , 487 U. S., at 856 (O’Connor, J.,
concurring in judgment). Capital punishment must be limited to
those offenders who commit “a narrow category of the most serious
crimes” and whose extreme culpability makes them “the most
deserving of execution.” Atkins , supra, at 319.
This principle is implemented throughout the capital sentencing
process. States must give narrow and precise definition to the
aggravating factors that can result in a capital sentence. Godfrey v. Georgia , 446 U. S. 420 , 428–429
(1980) (plurality opinion). In any capital case a defendant has
wide latitude to raise as a mitigating factor “any aspect of [his
or her] character or record and any of the circumstances of the
offense that the defendant proffers as a basis for a sentence less
than death.” Lockett v. Ohio , 438 U. S. 586 , 604
(1978) (plurality opinion); Eddings v. Oklahoma , 455 U. S. 104 ,
110–112 (1982); see also Johnson v. Texas , 509 U. S. 350 ,
359–362 (1993) (summarizing the Court’s jurisprudence after Furman v. Georgia , 408 U. S. 238 (1972) (per
curiam) , with respect to a sentencer’s consideration of
aggravating and mitigating factors). There are a number of crimes
that beyond question are severe in absolute terms, yet the death
penalty may not be imposed for their commission. Coker v. Georgia , 433 U. S. 584 (1977) (rape of an adult
woman); Enmund v. Florida , 458 U. S. 782 (1982)
(felony murder where defendant did not kill, attempt to kill, or
intend to kill). The death penalty may not be imposed on certain
classes of offenders, such as juveniles under 16, the insane, and
the mentally retarded, no matter how heinous the crime. Thompson v. Oklahoma , supra; Ford v. Wainwright , 477 U. S. 399 (1986); Atkins,
supra. These rules vindicate the underlying principle that the
death penalty is reserved for a narrow category of crimes and
offenders.

															   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.” Johnson , supra , at 367; see also Eddings , supra ,
at 115–116 (“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.” Arnett, Reckless Behavior in Adolescence: A
Developmental Perspective, 12 Developmental Review 339 (1992). 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. See Appendixes B–D, infra .

															   The second area of difference is that
juveniles are more vulnerable or susceptible to negative influences
and outside pressures, including peer pressure. Eddings , supra , at 115 (“[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. See Steinberg & Scott, Less Guilty by Reason of
Adolescence: Developmental Immaturity, Diminished Responsibility,
and the Juvenile Death Penalty, 58 Am. Psychologist 1009, 1014
(2003) (hereinafter Steinberg & Scott) (“[A]s legal minors,
[juveniles] lack the freedom that adults have to extricate
themselves from a criminogenic setting”).

															   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. See generally E. Erikson, Identity: Youth and Crisis
(1968).

															   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.” Thompson , supra, at 835
(plurality opinion). 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. See Stanford , 492 U. S., at 395 (Brennan, J., dissenting). 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.” Johnson , supra, at 368; see also Steinberg &
Scott 1014 (“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. 487 U. S., at 833–838. We conclude the
same reasoning applies to all juvenile offenders under 18.

															   Once the diminished culpability of juveniles
is recognized, it is evident that the penological justifications
for the death penalty apply to them with lesser force than to
adults. We have held there are two distinct social purposes served
by the death penalty: “ ‘retribution and deterrence of capital
crimes by prospective offenders.’ ” Atkins , 536 U.
S., at 319 (quoting Gregg v. Georgia , 428 U. S. 153 , 183
(1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)). As
for retribution, we remarked in Atkins that “[i]f the
culpability of the average murderer is insufficient to justify the
most extreme sanction available to the State, the lesser
culpability of the mentally retarded offender surely does not merit
that form of retribution.” 536 U. S., at 319. The same conclusions
follow from the lesser culpability of the juvenile offender.
Whether viewed as an attempt to express the community’s moral
outrage or as an attempt to right the balance for the wrong to the
victim, the case for retribution is not as strong with a minor as
with an adult. Retribution is not proportional if the law’s most
severe penalty is imposed on one whose culpability or
blameworthiness is diminished, to a substantial degree, by reason
of youth and immaturity.

															   As for deterrence, it is unclear whether the
death penalty has a significant or even measurable deterrent effect
on juveniles, as counsel for the petitioner acknowledged at oral
argument. Tr. of Oral Arg. 48. In general we leave to legislatures
the assessment of the efficacy of various criminal penalty schemes,
see Harmelin v. Michigan , 501 U. S. 957 , 998–999
(1991) (Kennedy, J., concurring in part and concurring in
judgment). Here, however, the absence of evidence of deterrent
effect is of special concern because the same characteristics that
render juveniles less culpable than adults suggest as well that
juveniles will be less susceptible to deterrence. In particular, as
the plurality observed in Thompson , “[t]he likelihood that
the teenage offender has made the kind of cost-benefit analysis
that attaches any weight to the possibility of execution is so
remote as to be virtually nonexistent.” 487 U. S., at 837. To the
extent the juvenile death penalty might have residual deterrent
effect, it is worth noting that the punishment of life imprisonment
without the possibility of parole is itself a severe sanction, in
particular for a young person.

															   In concluding that neither retribution nor
deterrence provides adequate justification for imposing the death
penalty on juvenile offenders, we cannot deny or overlook the
brutal crimes too many juvenile offenders have committed. See Brief
for Alabama et al. as Amici Curiae . Certainly it can
be argued, although we by no means concede the point, that a rare
case might arise in which a juvenile offender has sufficient
psychological maturity, and at the same time demonstrates
sufficient depravity, to merit a sentence of death. Indeed, this
possibility is the linchpin of one contention pressed by petitioner
and his amici . They assert that even assuming the truth of
the observations we have made about juveniles’ diminished
culpability in general, jurors nonetheless should be allowed to
consider mitigating arguments related to youth on a case-by-case
basis, and in some cases to impose the death penalty if justified.
A central feature of death penalty sentencing is a particular
assessment of the circumstances of the crime and the
characteristics of the offender. The system is designed to consider
both aggravating and mitigating circumstances, including youth, in
every case. Given this Court’s own insistence on individualized
consideration, petitioner maintains that it is both arbitrary and
unnecessary to adopt a categorical rule barring imposition of the
death penalty on any offender under 18 years of age.

															   We disagree. The differences between juvenile
and adult offenders are too marked and well understood to risk
allowing a youthful person to receive the death penalty despite
insufficient culpability. An unacceptable likelihood exists that
the brutality or cold-blooded nature of any particular crime would
overpower mitigating arguments based on youth as a matter of
course, even where the juvenile offender’s objective immaturity,
vulnerability, and lack of true depravity should require a sentence
less severe than death. In some cases a defendant’s youth may even
be counted against him. In this very case, as we noted above, the
prosecutor argued Simmons’ youth was aggravating rather than
mitigating. Supra , at 4. While this sort of overreaching
could be corrected by a particular rule to ensure that the
mitigating force of youth is not overlooked, that would not address
our larger concerns.

															   It is difficult even for expert psychologists
to differentiate between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile
offender whose crime reflects irreparable corruption. See Steinberg
& Scott 1014–1016. As we understand it, this difficulty
underlies the rule forbidding psychiatrists from diagnosing any
patient under 18 as having antisocial personality disorder, a
disorder also referred to as psychopathy or sociopathy, and which
is characterized by callousness, cynicism, and contempt for the
feelings, rights, and suffering of others. American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders
701–706 (4th ed. text rev. 2000); see also Steinberg & Scott
1015. If trained psychiatrists with the advantage of clinical
testing and observation refrain, despite diagnostic expertise, from
assessing any juvenile under 18 as having antisocial personality
disorder, we conclude that States should refrain from asking jurors
to issue a far graver condemnation—that a juvenile offender merits
the death penalty. When a juvenile offender commits a heinous
crime, the State can exact forfeiture of some of the most basic
liberties, but the State cannot extinguish his life and his
potential to attain a mature understanding of his own humanity.

															   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.

															   These considerations mean Stanford v. Kentucky should be deemed no longer controlling on this
issue. To the extent Stanford was based on review of the
objective indicia of consensus that obtained in 1989, 492 U. S., at
370–371, it suffices to note that those indicia have changed. Supra , at 10–13. It should be observed, furthermore, that
the Stanford Court should have considered those States
that had abandoned the death penalty altogether as part of the
consensus against the juvenile death penalty, 492 U. S., at 370,
n. 2; a State’s decision to bar the death penalty altogether
of necessity demonstrates a judgment that the death penalty is
inappropriate for all offenders, including juveniles. Last, to the
extent Stanford was based on a rejection of the idea that
this Court is required to bring its independent judgment to bear on
the proportionality of the death penalty for a particular class of
crimes or offenders, id., at 377–378 (plurality opinion),
it suffices to note that this rejection was inconsistent with prior
Eighth Amendment decisions, Thompson , 487 U. S., at
833–838 (plurality opinion); Enmund , 458 U. S., at 797; Coker , 433 U. S., at 597 (plurality opinion). It is also
inconsistent with the premises of our recent decision in Atkins . 536 U. S. , at 312–313, 317–321.

															   In holding that the death penalty cannot be
imposed upon juvenile offenders, we take into account the
circumstance that some States have relied on Stanford in
seeking the death penalty against juvenile offenders. This
consideration, however, does not outweigh our conclusion that Stanford should no longer control in those few pending
cases or in those yet to arise.

															IV

															   Our determination that the death
penalty is disproportionate punishment for offenders under 18 finds
confirmation in the stark reality that the United States is the
only country in the world that continues to give official sanction
to the juvenile death penalty. This reality does not become
controlling, for the task of interpreting the Eighth Amendment
remains our responsibility. Yet at least from the time of the
Court’s decision in Trop , the Court has referred to the
laws of other countries and to international authorities as
instructive for its interpretation of the Eighth Amendment’s
prohibition of “cruel and unusual punishments.” 356 U. S., at
102–103 (plurality opinion) (“The civilized nations of the world
are in virtual unanimity that statelessness is not to be imposed as
punishment for crime”); see also Atkins, supra, at 317,
n. 21 (recognizing that “within the world community, the
imposition of the death penalty for crimes committed by mentally
retarded offenders is overwhelmingly disapproved”); Thompson , supra , at 830–831, and n. 31
(plurality opinion) (noting the abolition of the juvenile death
penalty “by other nations that share our Anglo-American heritage,
and by the leading members of the Western European community,” and
observing that “[w]e have previously recognized the relevance of
the views of the international community in determining whether a
punishment is cruel and unusual”); Enmund , supra ,
at 796–797, n. 22 (observing that “the doctrine of felony
murder has been abolished in England and India, severely restricted
in Canada and a number of other Commonwealth countries, and is
unknown in continental Europe”); Coker , supra , at
596, n. 10 (plurality opinion) (“It is … not irrelevant here
that out of 60 major nations in the world surveyed in 1965, only 3
retained the death penalty for rape where death did not
ensue”).

															   As respondent and a number of amici emphasize, Article 37 of the United Nations
Convention on the Rights of the Child, which every country in the
world has ratified save for the United States and Somalia, contains
an express prohibition on capital punishment for crimes committed
by juveniles under 18. United Nations Convention on the Rights of
the Child, Art. 37, Nov. 20, 1989, 1577 U. N. T. S.
3, 28 I. L. M. 1448, 1468–1470 (entered into force Sept.
2, 1990); Brief for Respondent 48; Brief for European Union
et al. as Amici Curiae 12–13; Brief for President
James Earl Carter, Jr., et al. as Amici Curiae 9;
Brief for Former U. S. Diplomats Morton Abramowitz et al. as Amici Curiae 7; Brief for Human Rights Committee of the
Bar of England and Wales et al. as Amici Curiae 13–14. No ratifying country has entered a reservation to the
provision prohibiting the execution of juvenile offenders. Parallel
prohibitions are contained in other significant international
covenants. See ICCPR, Art. 6(5), 999 U. N. T. S., at
175 (prohibiting capital punishment for anyone under 18 at the time
of offense) (signed and ratified by the United States subject to a
reservation regarding Article 6(5), as noted, supra , at
13); American Convention on Human Rights: Pact of San José, Costa
Rica, Art. 4(5), Nov. 22, 1969, 1144 U. N. T. S. 146
(entered into force July 19, 1978) (same); African Charter on the
Rights and Welfare of the Child, Art. 5(3), OAU Doc. CAB/LEG/
24.9/49 (1990) (entered into force Nov. 29, 1999) (same).

															   Respondent and his amici have
submitted, and petitioner does not contest, that only seven
countries other than the United States have executed juvenile
offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria,
the Democratic Republic of Congo, and China. Since then each of
these countries has either abolished capital punishment for
juveniles or made public disavowal of the practice. Brief for
Respondent 49–50. In sum, it is fair to say that the United States
now stands alone in a world that has turned its face against the
juvenile death penalty.

															   Though the international
covenants prohibiting the juvenile death penalty are of more recent
date, it is instructive to note that the United Kingdom abolished
the juvenile death penalty before these covenants came into being.
The United Kingdom’s experience bears particular relevance here in
light of the historic ties between our countries and in light of
the Eighth Amendment’s own origins. The Amendment was modeled on a
parallel provision in the English Declaration of Rights of 1689,
which provided: “[E]xcessive Bail ought not to be required nor
excessive Fines imposed; nor cruel and unusuall Punishments
inflicted.” 1 W. & M., ch. 2, §10, in 3 Eng. Stat. at Large 441
(1770); see also Trop , supra , at 100 (plurality
opinion). As of now, the United Kingdom has abolished the death
penalty in its entirety; but, decades before it took this step, it
recognized the disproportionate nature of the juvenile death
penalty; and it abolished that penalty as a separate matter. In
1930 an official committee recommended that the minimum age for
execution be raised to 21. House of Commons Report from the Select
Committee on Capital Punishment (1930), 193, p. 44. Parliament
then enacted the Children and Young Person’s Act of 1933, 23 Geo.
5, ch. 12, which prevented execution of those aged 18 at the
date of the sentence. And in 1948, Parliament enacted the Criminal
Justice Act, 11 & 12 Geo. 6, ch. 58, prohibiting the
execution of any person under 18 at the time of the offense. In the
56 years that have passed since the United Kingdom abolished the
juvenile death penalty, the weight of authority against it there,
and in the international community, has become well
established.

															   It is proper that we acknowledge
the overwhelming weight of international opinion against the
juvenile death penalty, resting in large part on the understanding
that the instability and emotional imbalance of young people may
often be a factor in the crime. See Brief for Human Rights
Committee of the Bar of England and Wales et al. as Amici
Curiae 10–11. The opinion of the world community, while not
controlling our outcome, does provide respected and significant
confirmation for our own conclusions.

															   Over time, from one generation to the next,
the Constitution has come to earn the high respect and even, as
Madison dared to hope, the veneration of the American people. See
The Federalist No. 49, p. 314 (C. Rossiter ed. 1961). The
document sets forth, and rests upon, innovative principles original
to the American experience, such as federalism; a proven balance in
political mechanisms through separation of powers; specific
guarantees for the accused in criminal cases; and broad provisions
to secure individual freedom and preserve human dignity. These
doctrines and guarantees are central to the American experience and
remain essential to our present-day self-definition and national
identity. Not the least of the reasons we honor the Constitution,
then, is because we know it to be our own. It does not lessen our
fidelity to the Constitution or our pride in its origins to
acknowledge that the express affirmation of certain fundamental
rights by other nations and peoples simply underscores the
centrality of those same rights within our own heritage of
freedom.

															***

															   The Eighth and Fourteenth
Amendments forbid imposition of the death penalty on offenders who
were under the age of 18 when their crimes were committed. The
judgment of the Missouri Supreme Court setting aside the sentence
of death imposed upon Christopher Simmons is affirmed.

															It is so ordered.

															APPENDIX A TO OPINION OF THE COURT

															I.STATES THAT PERMIT THE IMPOSITION OF THE DEATH
PENALTY ON JUVENILES

															Alabama

															Ala. Code §13A–6–2(c) (West 2004) (no express minimum age)

															Arizona

															Ariz. Rev. Stat. Ann. §13–703(A) (West Supp. 2004) (same)

															Arkansas

															Ark. Code Ann. §5–4–615 (Michie 1997) (same)

															Delaware

															Del. Code Ann., Tit. 11, (Lexis 1995) (same)

															Florida

															Fla. Stat. §985.225(1) (2003) (same)

															Georgia

															Ga. Code Ann. §17–9–3 (Lexis 2004) (same)

															Idaho

															Idaho Code §18–4004 (Michie 2004) (same)

															Kentucky

															Ky. Rev. Stat. Ann. §640.040(1) (Lexis 1999) (minimum age of
16)

															Louisiana

															La. Stat. Ann. §14:30(c) (West Supp. 2004) (no express minimum
age)

															Mississippi

															Miss. Code Ann. §97–3–21 (Lexis 2000) (same)

															Missouri

															Mo. Rev. Stat. Ann. §565.020 (1999) (minimum age of 16)

															Nevada

															Nev. Rev. Stat. §176.025 (2003) (minimum age of 16)

															New Hampshire

															N. H. Rev. Stat. Ann. §630:1(V) (West 1996) (minimum age of
17)

															North Carolina

															N. C. Gen. Stat. §14–17 (Lexis 2003) (minimum age of 17,
except that those under 17 who commit murder while serving a prison
sentence for a previous murder may receive the death penalty)

															Oklahoma

															Okla. Stat. Ann., Tit. 21, §701.10 (West 2002) (no express
minimum age)

															Pennsylvania

															18 Pa. Cons. Stat. §1102 (2002) (same)

															South Carolina

															S. C. Code Ann. §16–3–20 (West Supp. 2003 and main ed.)
(same)

															Texas

															Tex. Penal Code Ann. §8.07(c) (West 2003) (minimum age of
17)

															Utah

															Utah Code Ann. §76–3–206(1) (Lexis 2002) (no express minimum
age)

															Virginia

															Va. Code Ann. §18.2–10(a) (Lexis Supp. 2003) (minimum age of
16)

															II.STATES THAT RETAIN THE DEATH PENALTY, BUT SET
THE MINIMUM AGE AT 18

															California

															Cal. Penal Code Ann. §190.5 (West 1999)

															Colorado

															Colo. Rev. Stat. §18–1.4–102(1)(a) (Lexis 2004)

															Connecticut

															Conn. Gen. Stat. Ann. §53a–46a(h) (West 2001)

															Illinois

															Ill. Comp. Stat. Ann., ch. 720, §5/9–1(b) (West Supp. 2004)

															Indiana

															Ind. Code Ann. §35–50–2–3 (1993)

															Kansas

															Kan. Stat. Ann. §21–4622 (1995)

															Maryland

															Md. Crim. Law Code Ann. §2–202(b)(2)(i) (Lexis 2002)

															Montana

															Mont. Code Ann. §45–5–102 (2003)

															Nebraska

															Neb. Rev. Stat. §28–105.01(1) (1995)

															New Jersey

															N. J. Stat. Ann. §2C:11–3(g) (West Supp. 2003)

															New Mexico

															N. M. Stat. Ann. §31–18–14(A) (West Supp. 2000)

															New York

															N. Y. Penal Law Ann. §125.27(West 2004)

															Ohio

															Ohio Rev. Code Ann. §2929.02(A) (Lexis 2003)

															Oregon

															Ore. Rev. Stat. §§161.620, 137.707(2) (1997)

															South Dakota

															2004 S. D. Laws ch. 166 to be codified in S. D.
Codified Laws §23A–27A–42

															Tennessee

															Tenn. Code Ann. §37–1–134(a)(1) (Lexis 1996)

															Washington

															Minimum age of 18 established by judicial decision. State v. Furman , 122 Wash. 2d 440, 858 P. 2d
1092 (1993)

															Wyoming

															Wyo. Stat. §6–2–101(b) (Lexis 2003)

															***

															During the past year, decisions by the highest courts of Kansas
and New York invalidated provisions in those States’ death penalty
statutes. State v. Marsh , ___ Kan. ___, 102
P. 3d 445 (2004) (invalidating provision that required
imposition of the death penalty if aggravating and mitigating
circumstances were found to be in equal balance); People v. LaValle , 3 N. Y. 3d 88, 817 N. E. 2d 341
(2004) (invalidating mandatory requirement to instruct the jury
that, in the case of jury deadlock as to the appropriate sentence
in a capital case, the defendant would receive a sentence of life
imprisonment with parole eligibility after serving a minimum of 20
to 25 years). Due to these decisions, it would appear that in these
States the death penalty remains on the books, but that as a
practical matter it might not be imposed on anyone until there is a
change of course in these decisions, or until the respective state
legislatures remedy the problems the courts have identified. Marsh , supra , at ___, ___, 102 p. 3d, at 452,
464; LaValle , supra , at 99, 817 N. E 2d, at
344.

															III.STATES WITHOUT THE DEATH PENALTY

															Alaska

															Hawaii

															Iowa

															Maine

															Massachusetts

															Michigan

															Minnesota

															North Dakota

															Rhode Island

															Vermont

															West Virginia

															Wisconsin

															APPENDIX B TO OPINION OF THE COURT

															STATE STATUTES ESTABLISHING A MINIMUM AGE TO
VOTE

															STATE

															AGE

															STATUTE

															Alabama

															18

															Ala. Const., Amdt. No. 579

															Alaska

															18

															Alaska Const., Art. V, §1 Alaska Stat. §15–05–010 (Lexis
2002)

															Arizona

															18

															Ariz. Const., Art. VII, §2 Ariz. Rev. Stat. §16–101 (West
1996)

															Arkansas

															18

															Ark. Code Ann. §9–25–101 (Lexis 2002)

															California

															18

															Cal. Const., Art. 2, §2

															Colorado

															18

															Colo. Rev. Stat. §1–2–101 (Lexis 2004)

															Connecticut

															18

															Conn. Const., Art. 6, §1 Conn. Gen. Stat. §9–12 (2003)

															Delaware

															18

															Del. Code Ann., Tit. 15, §1701 (Michie 2002)

															District of Columbia

															18

															D. C. Code §1–1001.02(2)(B) (West Supp. 2004)

															Florida

															18

															Fla. Stat. ch. 97.041 (2003)

															Georgia

															18

															Ga. Const., Art. 2, §1, ¶2 Ga. Code Ann. §21–2–216 (Lexis
2003)

															Hawaii

															Haw. Const., Art. II, §1 Haw. Rev. Stat. §11–12 (1995)

															Idaho

															18

															Idaho Code §34–402 (Michie 2001)

															Illinois

															18

															Ill. Const., Art. III, §1 Ill. Comp. Stat. Ann., ch. 10, §5/3–1
(West 2003)

															Indiana

															18

															Ind. Code Ann. §3–7–13–1 (Lexis 1997)

															Iowa

															18

															Iowa Code §48A.5 (2003)

															Kansas

															18

															Kan. Const., Art. 5, §1

															Kentucky

															18

															Ky. Const., §145

															Louisiana

															18

															La. Const., Art. I, §10 La. Rev. Stat. Ann. §18:101 (West
2004)

															Maine

															18

															Me. Const., Art. II, §1 Me. Rev. Stat. Ann., Tit. 21–A, §111
(West 1998 and Supp. 2004)

															Maryland

															18

															Md. Elec. Law Code Ann. §3–102 (Lexis 2002)

															Massachusetts

															18

															Mass. Gen. Laws Ann., ch. 51, §1 (West Supp. 2004)

															Michigan

															18

															Mich. Comp. Laws Ann. §168.492 (West 1989)

															Minnesota

															18

															Minn. Stat. §201.014(1)(a) (2002)

															Mississippi

															18

															Miss. Const., Art. 12, §241

															Missouri

															18

															Mo. Const., Art. VIII, §2

															Montana

															18

															Mont. Const., Art. IV, §2 Mont. Code Ann. §13–1–111 (2003)

															Nebraska

															18

															Neb. Const., Art. VI, §1 Neb. Rev. Stat. §32–110 (2004)

															Nevada

															18

															Nev. Rev. Stat. §293.485 (2003)

															New Hampshire

															18

															N. H. Const., Art., pt. 1, 11

															New Jersey

															18

															N. J. Const., Art. II, §1, ¶3

															New Mexico

															18

															[no provision other than U. S. Const., Amdt. XXVI]

															New York

															18

															N. Y. Elec. Law Ann. §5–102 (West 1998)

															North Carolina

															18

															N. C. Gen. Stat. Ann. §163–55 (Lexis 2003)

															North Dakota

															18

															N. D. Const., Art. II, §1

															Ohio

															18

															Ohio Const., Art. V, §1 Ohio Rev. Code Ann. §3503.01 (Anderson
1996)

															Oklahoma

															18

															Okla. Const., Art. III, §1

															Oregon

															18

															Ore. Const., Art. II, §2

															Pennsylvania

															18

															25 Pa. Cons. Stat. Ann. §2811 (1994)

															Rhode Island

															18

															R. I. Gen. Laws §17–1–3 (Lexis 2003)

															South Carolina

															18

															S. C. Code Ann. §7–5–610 (West Supp. 2003)

															South Dakota

															18

															S. D. Const., Art. VII, §2 S. D. Codified Laws Ann.
§12–3–1 (Michie 1995)

															Tennessee

															18

															Tenn. Code Ann. §2–2–102 (Lexis 2003)

															Texas

															18

															Tex. Elec. Code Ann. §11.002 (West 2003)

															Utah

															18

															Utah Const., Art. IV, §2 Utah Code Ann. §20A–2–101 (Lexis
2002)

															Vermont

															18

															Vt. Stat. Ann., Tit. 17, §2121 (Lexis 2002)

															Virginia

															18

															Va. Const., Art. II, §1

															Washington

															18

															Wash. Const., Art. VI, §1

															West Virginia

															18

															W. Va. Code §3–1–3 (Lexis 2002)

															Wisconsin

															18

															Wis. Const., Art. III, §1 Wis. Stat. §6.02 (West 2004)

															Wyoming

															18

															Wyo. Stat. Ann. §§22–1–102, 22–3–102 (West 2004)

															***

															The Twenty-Sixth Amendment to the Constitution of
the United States provides that “[t]he right of citizens of the
United States, who are eighteen years of age or older, to vote
shall not be denied or abridged by the United States or by any
State on account of age.”

															APPENDIX C TO OPINION OF THE COURT

															STATE STATUTES ESTABLISHING A MINIMUM AGE FOR JURY
SERVICE

															STATE

															AGE

															STATUTE

															Alabama

															19

															Ala. Code §12–16–60(a)(1) (West 2002)

															Alaska

															18

															Alaska Stat. §09.20.010(a)(3) (Lexis 2002)

															Arizona

															18

															Ariz. Rev. Stat. §21–301(D) (West 2002)

															Arkansas

															18

															Ark. Code Ann. §§16–31–101, 16–32–302 (Lexis 2003)

															California

															18

															Cal. Civ. Proc. §203(a)(2) (West Supp. 2004)

															Colorado

															18

															Colo. Rev. Stat. §13–71–105(2)(a) (Lexis 2004)

															Connecticut

															18

															Conn. Gen. Stat. Ann. §51–217(a) (West Supp. 2004)

															Delaware

															18

															Del. Code Ann., Tit. 10, §4509(b)(2) (Michie 1999)

															District of Columbia

															18

															D. C. Code §11–1906(b)(1)(C) (West 2001)

															Florida

															18

															Fla. Stat. §40.01 (2003)

															Georgia

															18

															Ga. Code Ann. §§15–12–60, 15–12–163 (Lexis 2001)

															Hawaii

															18

															Haw. Rev. Stat. §612–4(a)(1) (2003)

															Idaho

															18

															Idaho Code §2–209(2)(a) (Michie 2003)

															Illinois

															18

															Ill. Comp. Stat. Ann., ch. 705, §305/2 (West 2002)

															Indiana

															18

															Ind. Code Ann. §33–28–4–8 (Lexis 2004)

															Iowa

															18

															Iowa Code §607A.4(1)(a) (2003)

															Kansas

															18

															Kan. Stat. Ann. §43–156 (2000) (jurors must be qualified to be
electors); Kan. Const., Art. 5, §1 (person must be 18 to be
qualified elector)

															Kentucky

															18

															Ky. Rev. Stat. Ann. §29A.080(2)(a) (Lexis Supp. 2004)

															Louisiana

															18

															La. Code Crim. Proc. Ann., Art. 401(A)(2) (West 2003)

															Maine

															18

															Me. Rev. Stat. Ann., Tit. 14, §1211 (West 1980)

															Maryland

															18

															Md. Cts. & Jud. Proc. Code Ann. §8–104 (Lexis 2002)

															Massachusetts

															18

															Mass. Gen. Laws. Ann., ch. 234, §1 (West 2000) (jurors must be
qualified to vote); ch. 51, §1 (West Supp. 2004) (person must be 18
to vote)

															Michigan

															18

															Mich. Comp. Laws Ann. §600.1307a(1)(a) (West Supp. 2004)

															Minnesota

															18

															Minn. Dist. Ct. Rule 808(b)(2) (2002)

															Mississippi

															21

															Miss. Code Ann. §13–5–1 (Lexis 2002)

															Missouri

															21

															Mo. Rev. Stat. §494.425(1) (2000)

															Montana

															18

															Mont. Code Ann. §3–15–301 (2003)

															Nebraska

															19

															Neb. Rev. Stat. §25–1601 (Supp. 2003)

															Nevada

															18

															Nev. Rev. Stat. §6.010 (2003) (juror must be qualified elector);
§293.485 (person must be 18 to vote)

															New Hampshire

															18

															N. H. Rev. Stat. Ann. §500–A:7–a(I) (Lexis Supp. 2004)

															New Jersey

															18

															N. J. Stat. Ann. §2B:20–1(a) (West 2004 Pamphlet)

															New Mexico

															18

															N. M. Stat. Ann. §38–5–1 (1998)

															New York

															18

															N. Y. Jud. Law Ann. §510(2) (West 2003)

															North Carolina

															18

															N. C. Gen. Stat. Ann. §9–3 (Lexis 2003)

															North Dakota

															18

															N. D. Cent. Code §27–09.1–08(2)(b) (Supp. 2003)

															Ohio

															18

															Ohio Rev. Code Ann. §2313.42 (Anderson 2001)

															Oklahoma

															18

															Okla. Stat. Ann., Tit. 38, §28 (West Supp. 2005)

															Rhode Island

															18

															R. I. Gen. Laws §9–9–1.1(a)(2) (Lexis Supp. 2004)

															South Carolina

															18

															S. C. Code Ann. §14–7–130 (West Supp. 2003)

															South Dakota

															18

															S. D. Codified Laws §16–13–10 (Lexis Supp. 2003)

															Tennessee

															18

															Tenn. Code Ann. §22–1–101 (Lexis Supp. 2003)

															Texas

															18

															Tex. Govt. Code Ann. §62.102(1) (West 1998)

															Utah

															18

															Utah Code Ann. §78–46–7(1)(b) (Lexis 2002)

															Vermont

															18

															Vt. Stat. Ann., Tit. 4, §962(a)(1) (Lexis 1999); (jurors must
have attained age of majority); Tit. 1, §173 (Lexis 2003) (age of
majority is 18)

															Virginia

															18

															Va. Code Ann. §8.01–337 (Lexis 2000)

															Washington

															18

															Wash. Rev. Ann. Code §2.36.070 (West 2004)

															West Virginia

															18

															W. Va. Code §52–1–8(b)(1) (Lexis 2000)

															Wisconsin

															18

															Wis. Stat. §756.02 (West 2001)

															Wyoming

															18

															Wyo. Stat. Ann. §1–11–101 (Lexis 2003) (jurors must be adults);
§14–1–101 (person becomes an adult at 18)

															APPENDIX D TO OPINION OF THE COURT

															STATE STATUTES ESTABLISHING A MINIMUM AGE FOR
MARRIAGE WITHOUT PARENTAL OR JUDICIAL CONSENT

															STATE

															AGE

															STATUTE

															Alabama

															18

															Ala. Code §30–1–5 (West Supp. 2004)

															Alaska

															18

															Alaska Stat. §§25.05.011, 25.05.171 (Lexis 2002)

															Arizona

															18

															Ariz. Rev. Stat. Ann. §25–102 (West Supp. 2004)

															Arkansas

															18

															Ark. Code Ann. §§9–11–102, 9–11–208 (Lexis 2002)

															California

															18

															Cal. Fam. Code Ann. §301 (West 2004)

															Colorado

															18

															Colo. Rev. Stat. Ann. §14–2–106 (Lexis 2004)

															Connecticut

															18

															Conn. Gen. Stat. §46b–30 (2003)

															Delaware

															18

															Del. Code Ann., Tit. 13, §123 (Lexis 1999)

															District of Columbia

															18

															D. C. Code §46–411 (West 2001)

															Florida

															18

															Fla. Stat. §§741.04, 741.0405 (2003)

															Georgia

															16

															Ga. Code Ann. §§19–3–2, 19–3–37 (Lexis 2004) (those under 18
must obtain parental consent unless female applicant is pregnant or
both applicants are parents of a living child, in which case
minimum age to marry without consent is 16)

															Hawaii

															18

															Haw. Rev. Stat. §572–2 (1993)

															Idaho

															18

															Idaho Code §32–202 (Michie 1996)

															Illinois

															18

															Ill. Comp. Stat. Ann., ch. 750, §5/203 (West 1999)

															Indiana

															18

															Ind. Code Ann. §§31–11–1–4, 31–11–1–5, 31–11–2–1, 31–11–2–3
(Lexis 1997)

															Iowa

															18

															Iowa Code §595.2 (2003)

															Kansas

															18

															Kan. Stat. Ann. §23–106 (Supp. 2003)

															Kentucky

															18

															Ky. Rev. Stat. Ann. §§402.020, 402.210 (Lexis 1999)

															Louisiana

															18

															La. Children’s Code Ann., Arts. 1545, 1547 (West 2004) (minors
may not marry without consent); La. Civ. Code Ann., Art. 29 (West
1999) (age of majority is 18)

															Maine

															18

															Me. Rev. Stat. Ann., Tit. 19–A, §652 (West 1998 and Supp.
2004)

															Maryland

															16

															Md. Fam. Law Code Ann. §2–301 (Lexis 2004) (those under 18 must
obtain parental consent unless female applicant can present proof
of pregnancy or a child, in which case minimum age to marry without
consent is 16)

															Massachusetts

															18

															Mass. Gen. Laws Ann., ch. 207, §§7, 24, 25 (West 1998)

															Michigan

															18

															Mich. Comp. Laws Ann. §551.103 (West 1988)

															Minnesota

															18

															Minn. Stat. §517.02 (2002)

															Mississippi

															15/17

															Miss. Code Ann. §93–1–5 (Lexis 2004) (female applicants must be
15; male applicants must be 17)

															Missouri

															18

															Mo. Rev. Stat. §451.090 (2000)

															Montana

															18

															Mont. Code Ann. §§40–1–202, 40–1–213 (2003)

															Nebraska

															19

															Neb. Rev. Stat. §42–105 (2004) (minors must have parental
consent to marry); §43–2101 (defining “minor” as a person under
19)

															Nevada

															18

															Nev. Rev. Stat. §122.020 (2003)

															New Hampshire

															18

															N. H. Rev. Stat. Ann. §457:5 (West 1992)

															New Jersey

															18

															N. J. Stat. Ann. §37:1–6 (West 2002)

															New Mexico

															18

															N. M. Stat. Ann. §40–1–6 (1999)

															New York

															18

															N. Y. Dom. Rel. Law Ann. §15 (West Supp. 2004)

															North Carolina

															18

															N. C. Gen. Stat. Ann. §51–2 (Lexis 2003)

															North Dakota

															18

															N. D. Cent. Code §14–03–02 (Lexis 2004)

															Ohio

															18

															Ohio Rev. Code Ann. §3101.01 (Lexis 2003)

															Oklahoma

															18

															Okla. Stat. Ann., Tit. 43, §3 (West Supp. 2005)

															Oregon

															18

															Ore. Rev. Stat. §106.060 (2003)

															Pennsylvania

															18

															23 Pa. Cons. Stat. §1304 (1997)

															Rhode Island

															18

															R. I. Gen. Laws §15–2–11 (Lexis Supp. 2004)

															South Carolina

															18

															S. C. Code Ann. §20–1–250 (West Supp. 2003)

															South Dakota

															18

															S. D. Codified Laws §25–1–9 (Lexis 1999)

															Tennessee

															18

															Tenn. Code Ann. §36–3–106 (Lexis 1996)

															Texas

															18

															Tex. Fam. Code Ann. §§2.101–2.103 (West 1998)

															Utah

															18

															Utah Code Ann. §30–1–9 (Lexis Supp. 2004)

															Vermont

															18

															Vt. Stat. Ann., Tit. 18, §5142 (Lexis 2000)

															Virginia

															18

															Va. Code Ann. §§20–45.1, 20–48, 20–49 (Lexis 2004)

															Washington

															18

															Wash. Rev. Code Ann. §26.04.210 (West Supp. 2005)

															West Virginia

															18

															W. Va. Code §48–2–301 (Lexis 2004)

															Wisconsin

															18

															Wis. Stat. §765.02 (1999–2000)

															Wyoming

															18

															Wyo. Stat. Ann. §20–1–102 (Lexis 2003) 543 U. S. ____ (2005) 543 U. S. ____ (2005) 543 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-633 DONALD P. ROPER, SUPERINTENDENT, POTOSI
CORRECTIONAL CENTER, PETITIONER v. CHRISTOPHER SIMMONS

															on writ of certiorari to the supreme court of
missouri

															[March 1, 2005]

															   Justice Stevens, with whom
Justice Ginsburg joins, concurring.

															   Perhaps even more important than
our specific holding today is our reaffirmation of the basic
principle that informs the Court’s interpretation of the Eighth
Amendment. If the meaning of that Amendment had been frozen when it
was originally drafted, it would impose no impediment to the
execution of 7-year-old children today. See Stanford v. Kentucky, 492 U. S. 361 , 368
(1989) (describing the common law at the time of the Amendment’s
adoption). The evolving standards of decency that have driven our
construction of this critically important part of the Bill of
Rights foreclose any such reading of the Amendment. In the best
tradition of the common law, the pace of that evolution is a matter
for continuing debate; but that our understanding of the
Constitution does change from time to time has been settled since
John Marshall breathed life into its text. If great lawyers of his
day—Alexander Hamilton, for example—were sitting with us today, I
would expect them to join Justice Kennedy’s opinion for the Court.
In all events, I do so without hesitation. O'CONNOR, J., DISSENTING ROPER V. SIMMONS 543 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-633 DONALD P. ROPER, SUPERINTENDENT, POTOSI
CORRECTIONAL CENTER, PETITIONER v. CHRISTOPHER SIMMONS

															on writ of certiorari to the supreme court of
missouri

															[March 1, 2005]

															   Justice O’Connor, dissenting.

															   The Court’s decision today
establishes a categorical rule forbidding the execution of any
offender for any crime committed before his 18th birthday, no
matter how deliberate, wanton, or cruel the offense. Neither the
objective evidence of contemporary societal values, nor the Court’s
moral proportionality analysis, nor the two in tandem suffice to
justify this ruling.

															   Although the Court finds support for its
decision in the fact that a majority of the States now disallow
capital punishment of 17-year-old offenders, it refrains from
asserting that its holding is compelled by a genuine national
consensus. Indeed, the evidence before us fails to demonstrate
conclusively that any such consensus has emerged in the brief
period since we upheld the constitutionality of this practice in Stanford v. Kentucky , 492 U. S. 361 (1989).

															   Instead, the rule decreed by the Court rests,
ultimately, on its independent moral judgment that death is a
disproportionately severe punishment for any 17-year-old offender.
I do not subscribe to this judgment. Adolescents as a
class are undoubtedly less mature, and therefore less culpable
for their misconduct, than adults. But the Court has adduced no
evidence impeaching the seemingly reasonable conclusion reached by
many state legislatures: that at least some 17-year-old
murderers are sufficiently mature to deserve the death penalty in
an appropriate case. Nor has it been shown that capital sentencing
juries are incapable of accurately assessing a youthful defendant’s
maturity or of giving due weight to the mitigating characteristics
associated with youth.

															   On this record—and especially in light of the
fact that so little has changed since our recent decision in Stanford —I would not substitute our judgment about the
moral propriety of capital punishment for 17-year-old murderers for
the judgments of the Nation’s legislatures. Rather, I would demand
a clearer showing that our society truly has set its face against
this practice before reading the Eighth Amendment categorically to
forbid it.

															I

															A

															   Let me begin by making clear that
I agree with much of the Court’s description of the general
principles that guide our Eighth Amendment jurisprudence. The
Amendment bars not only punishments that are inherently
“ ‘barbaric,’ ” but also those that are
“ ‘ excessive’ in relation to the crime committed. ” Coker v. Georgia , 433 U. S. 584 , 592
(1977) (plurality opinion). A sanction is therefore beyond the
state’s authority to inflict if it makes “no measurable
contribution” to acceptable penal goals or is “grossly out of
proportion to the severity of the crime.” Ibid. The basic
“precept of justice that punishment for crime should be …
proportioned to [the] offense,” Weems v. United
States , 217 U.
S. 349 , 367 (1910), applies with special force to the death
penalty. In capital cases, the Constitution demands that the
punishment be tailored both to the nature of the crime itself and
to the defendant’s “personal responsibility and moral guilt.” Enmund v. Florida , 458 U. S. 782 , 801
(1982); see also id. , at 825 (O’Connor, J., dissenting); Tison v. Arizona , 481 U. S. 137 , 149
(1987); Eddings v. Oklahoma , 455 U. S. 104 , 111–112
(1982).

															   It is by now beyond serious
dispute that the Eighth Amendment’s prohibition of “cruel and
unusual punishments” is not a static command. Its mandate would be
little more than a dead letter today if it barred only those
sanctions—like the execution of children under the age of
seven—that civilized society had already repudiated in 1791. See ante , at 1 (Stevens, J., concurring); cf. Stanford , supra , at 368 (discussing the common
law rule at the time the Bill of Rights was adopted). Rather,
because “[t]he basic concept underlying the Eighth Amendment is
nothing less than the dignity of man,” the Amendment “must draw its
meaning from the evolving standards of decency that mark the
progress of a maturing society.” Trop v. Dulles , 356 U. S. 86 ,
100–101 (1958) (plurality opinion). In discerning those standards,
we look to “objective factors to the maximum possible extent.” Coker , supra , at 592 (plurality opinion). Laws
enacted by the Nation’s legislatures provide the “clearest and most
reliable objective evidence of contemporary values.” Penry v. Lynaugh , 492 U. S. 302 , 331 (1989). And data
reflecting the actions of sentencing juries, where available, can
also afford “ ‘a significant and reliable objective
index’ ” of societal mores. Coker , supra , at
596 (plurality opinion) (quoting Gregg v. Georgia, 428 U. S. 153 , 181
(1976)) (joint opinion of Stewart, Powell, and Stevens, JJ.). Although objective evidence of
this nature is entitled to great weight, it does not end our
inquiry. Rather, as the Court today reaffirms, see ante ,
at 9, 20–21, “the Constitution contemplates that in the end our own
judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth Amendment.” Coker , supra , at 597 (plurality opinion).
“[P]roportionality—at least as regards capital punishment—not only
requires an inquiry into contemporary standards as expressed by
legislators and jurors, but also involves the notion that the
magnitude of the punishment imposed must be related to the degree
of the harm inflicted on the victim, as well as to the degree of
the defendant’s blameworthiness.” Enmund , supra ,
at 815 (O’Connor, J., dissenting). We therefore have a
“constitutional obligation” to judge for ourselves whether the
death penalty is excessive punishment for a particular offense or
class of offenders. See Stanford , 492 U. S., at 382
(O’Connor, J., concurring in part and concurring in judgment); see
also Enmund , supra , at 797 (“[I]t is for us
ultimately to judge whether the Eighth Amendment permits imposition
of the death penalty”). B Twice in the last two
decades, the Court has applied these principles in deciding whether
the Eighth Amendment permits capital punishment of adolescent
offenders. In Thompson v. Oklahoma , 487 U. S. 815 (1988), a plurality of
four Justices concluded that the Eighth Amendment barred capital
punishment of an offender for a crime committed before the age of
16. I concurred in that judgment on narrower grounds. At the time,
32 state legislatures had “definitely concluded that no 15-year-old
should be exposed to the threat of execution,” and no legislature
had affirmatively endorsed such a practice. Id., at 849
(O’Connor, J., concurring in judgment). While acknowledging that a
national consensus forbidding the execution of 15-year-old
offenders “very likely” did exist, I declined to adopt that
conclusion as a matter of constitutional law without clearer
evidentiary support. Ibid . Nor, in my view, could the
issue be decided based on moral proportionality arguments of the
type advanced by the Court today. Granting the premise “that
adolescents are generally less blameworthy than adults who commit
similar crimes,” I wrote, “it does not necessarily follow that all
15-year-olds are incapable of the moral culpability that would
justify the imposition of capital punishment.” Id. , at
853. Similarly, we had before us no evidence “that 15-year-olds as
a class are inherently incapable of being deterred from major
crimes by the prospect of the death penalty.” Ibid. I
determined instead that, in light of the strong but inconclusive
evidence of a national consensus against capital punishment of
under-16 offenders, concerns rooted in the Eighth Amendment
required that we apply a clear statement rule. Because the capital
punishment statute in Thompson did not specify the minimum
age at which commission of a capital crime would be punishable by
death, I concluded that the statute could not be read to authorize
the death penalty for a 15-year-old offender. Id. , at
857–858. The next year, in Stanford v. Kentucky , supra, the Court
held that the execution of 16- or 17-year-old capital murderers did
not violate the Eighth Amendment. I again wrote separately,
concurring in part and concurring in the judgment. At that time, 25
States did not permit the execution of under-18 offenders,
including 13 that lacked the death penalty altogether. See id. , at 370. While noting that “[t]he day may come when
there is such general legislative rejection of the execution of 16-
or 17-year-old capital murderers that a clear national consensus
can be said to have developed,” I concluded that that day had not
yet arrived. Id. , at 381–382 (opinion concurring in part
and concurring in judgment). I reaffirmed my view that, beyond
assessing the actions of legislatures and juries, the Court has a
constitutional obligation to judge for itself whether capital
punishment is a proportionate response to the defendant’s
blameworthiness. Id. , at 382. Nevertheless, I concluded
that proportionality arguments similar to those endorsed by the
Court today did not justify a categorical Eighth Amendment rule
against capital punishment of 16- and 17-year-old offenders. See ibid. (citing Thompson , supra , at
853–854 (O’Connor, J., concurring in judgment)). The Court has also twice addressed
the constitutionality of capital punishment of mentally retarded
offenders. In Penry v. Lynaugh , 492 U. S. 302 (1989), decided the same
year as Stanford , we rejected the claim that the Eighth
Amendment barred the execution of the mentally retarded. At that
time, only two States specifically prohibited the practice, while
14 others did not have capital punishment at all. 492 U. S., at
334. Much had changed when we revisited the question three Terms
ago in Atkins v. Virginia , 536 U. S. 304 (2002). In Atkins , the Court reversed Penry and held that
the Eighth Amendment forbids capital punishment of mentally
retarded offenders. 536 U. S., at 321. In the 13 years between Penry and Atkins , there had been a wave of
legislation prohibiting the execution of such offenders. By the
time we heard Atkins , 30 States barred the death penalty
for the mentally retarded, and even among those States
theoretically permitting such punishment, very few had executed a
mentally retarded offender in recent history. 536 U. S., at
314–316. On the basis of this evidence, the Court determined that
it was “fair to say that a national consensus ha[d] developed
against” the practice. Id. , at 316. But our decision in Atkins did not rest solely on this tentative conclusion.
Rather, the Court’s independent moral judgment was dispositive. The
Court observed that mentally retarded persons suffer from major
cognitive and behavioral deficits, i.e. , “subaverage
intellectual functioning” and “significant limitations in adaptive
skills such as communication, self-care, and self-direction that
became manifest before age 18.” Id. , at 318. “Because of
their impairments, [such persons] by definition … have diminished
capacities to understand and process information, to communicate,
to abstract from mistakes and learn from experience, to engage in
logical reasoning, to control impulses, and to understand the
reactions of others.” Ibid. We concluded that these
deficits called into serious doubt whether the execution of
mentally retarded offenders would measurably contribute to the
principal penological goals that capital punishment is intended to
serve—retribution and deterrence. Id. , at 319–321.
Mentally retarded offenders’ impairments so diminish their personal
moral culpability that it is highly unlikely that such offenders
could ever deserve the ultimate punishment, even in cases of
capital murder. Id. , at 319. And these same impairments
made it very improbable that the threat of the death penalty would
deter mentally retarded persons from committing capital crimes. Id. , at 319–320. Having concluded that capital punishment
of the mentally retarded is inconsistent with the Eighth Amendment,
the Court “ ‘le[ft] to the State[s] the task of developing
appropriate ways to enforce the constitutional restriction upon
[their] execution of sentences.’ ” Id. , at 317
(quoting Ford v. Wainwright , 477 U. S. 399 , 416–417
(1986)). II A Although the general
principles that guide our Eighth Amendment jurisprudence afford
some common ground, I part ways with the Court in applying them to
the case before us. As a preliminary matter, I take issue with the
Court’s failure to reprove, or even to acknowledge, the Supreme
Court of Missouri’s unabashed refusal to follow our controlling
decision in Stanford . The lower court concluded that,
despite Stanford ’s clear holding and historical recency,
our decision was no longer binding authority because it was
premised on what the court deemed an obsolete assessment of
contemporary values. Quite apart from the merits of the
constitutional question, this was clear error. Because the Eighth
Amendment “draw[s] its meaning from … evolving standards of
decency,” Trop , 356 U. S., at 101 (plurality opinion),
significant changes in societal mores over time may require us to
reevaluate a prior decision. Nevertheless, it remains
“ this Court’s prerogative alone to overrule one
of its precedents.” State Oil Co. v. Khan , 522 U. S. 3 , 20
(1997) (emphasis added). That is so even where subsequent decisions
or factual developments may appear to have “significantly
undermined” the rationale for our earlier holding. United
States v. Hatter , 532 U. S. 557 , 567
(2001); see also State Oil Co. , supra , at 20; Rodriguez de Quijas v. Shearson/American Express,
Inc. , 490 U. S.
477 , 484 (1989). The Eighth Amendment provides no exception to
this rule. On the contrary, clear, predictable, and uniform
constitutional standards are especially desirable in this sphere.
By affirming the lower court’s judgment without so much as a slap
on the hand, today’s decision threatens to invite frequent and
disruptive reassessments of our Eighth Amendment
precedents. B In determining
whether the juvenile death penalty comports with contemporary
standards of decency, our inquiry begins with the “clearest and
most reliable objective evidence of contemporary values”—the
actions of the Nation’s legislatures. Penry , supra, at 331. As the Court emphasizes, the overall number
of jurisdictions that currently disallow the execution of under-18
offenders is the same as the number that forbade the execution of
mentally retarded offenders when Atkins was decided. Ante , at 10. At present, 12 States and the District of
Columbia do not have the death penalty, while an additional 18
States and the Federal Government authorize capital punishment but
prohibit the execution of under-18 offenders. See ante , at
27–28 (Appendix A). And here, as in Atkins , only a very
small fraction of the States that permit capital punishment of
offenders within the relevant class has actually carried out such
an execution in recent history: Six States have executed under-18
offenders in the 16 years since Stanford , while five
States had executed mentally retarded offenders in the 13 years
prior to Atkins . See Atkins , 536 U. S., at 316;
V. Streib, The Juvenile Death Penalty Today: Death Sentences and
Executions for Juvenile Crimes, January 1, 1973–December 31, 2004,
No. 76, pp. 15–23 (2005), available at
http://www.law.onu.edu/faculty/streib/documents/Juv
DeathDec2004.pdf (last updated Jan. 31, 2005) (as visited Feb. 25,
2005, and available in the Clerk of the Court’s case file)
(hereinafter Streib). In these respects, the objective evidence in
this case is, indeed, “similar, and in some respects parallel to”
the evidence upon which we relied in Atkins . Ante , at 10. While the
similarities between the two cases are undeniable, the objective
evidence of national consensus is marginally weaker here. Most
importantly, in Atkins there was significant evidence of opposition to the execution of the mentally retarded, but
there was virtually no countervailing evidence of affirmative
legislative support for this practice. Cf. Thompson , 487 U. S., at 849 (O’Connor, J., concurring in
judgment) (attributing significance to the fact that “no
legislature in this country has affirmatively and unequivocally
endorsed” capital punishment of 15-year-old offenders). The States
that permitted such executions did so only because they had not
enacted any prohibitory legislation. Here, by contrast, at least
eight States have current statutes that specifically set 16 or 17
as the minimum age at which commission of a capital crime can
expose the offender to the death penalty. See ante , at 26
(Appendix A).* Five of these eight States presently have one or
more juvenile offenders on death row (six if respondent is included
in the count), see Streib 24–31, and four of them have executed at
least one under-18 offender in the past 15 years, see id. ,
at 15–23. In all, there are currently over 70 juvenile offenders on
death row in 12 different States (13 including respondent). See id. , at 11, 24–31. This evidence suggests some measure of
continuing public support for the availability of the death penalty
for 17-year-old capital murderers. Moreover, the Court in Atkins made clear that it was “not so much the number of
[States forbidding execution of the mentally retarded] that [was]
significant, but the consistency of the direction of change.” 536
U. S., at 315. In contrast to the trend in Atkins , the
States have not moved uniformly towards abolishing the juvenile
death penalty. Instead, since our decision in Stanford ,
two States have expressly reaffirmed their support for this
practice by enacting statutes setting 16 as the minimum age for
capital punishment. See Mo. Rev. Stat. §565.020.2 (2000); Va. Code
Ann. §18.2–10(a) (Lexis 2004). Furthermore, as the Court emphasized
in Atkins itself, 536 U. S., at 315, n. 18, the pace
of legislative action in this context has been considerably slower
than it was with regard to capital punishment of the mentally
retarded. In the 13 years between our decisions in Penry and Atkins , no fewer than 16 States banned the execution
of mentally retarded offenders. See Atkins , supra , at 314–315. By comparison, since our decision 16
years ago in Stanford , only four States that previously
permitted the execution of under-18 offenders, plus the Federal
Government, have legistlatively reversed course, and one additional
State’s high court has construed the State’s death penalty statute
not to apply to under-18 offenders, see State v. Furman , 122 Wash. 2d 440, 458, 858 P. 2d 1092, 1103
(1993) (en banc). The slower pace of change is no doubt partially
attributable, as the Court says, to the fact that 11 States had
already imposed a minimum age of 18 when Stanford was
decided. See ante , at 12–13. Nevertheless, the
extraordinary wave of legislative action leading up to our decision
in Atkins provided strong evidence that the country truly
had set itself against capital punishment of the mentally retarded.
Here, by contrast, the halting pace of change gives reason for
pause. To the extent that the objective
evidence supporting today’s decision is similar to that in Atkins , this merely highlights the fact that such evidence
is not dispositive in either of the two cases. After all, as the
Court today confirms, ante , at 9, 20–21, the Constitution
requires that “ ‘in the end our own judgment … be brought to
bear’ ” in deciding whether the Eighth Amendment forbids a
particular punishment. Atkins , supra , at 312
(quoting Coker , 433 U. S., at 597 (plurality opinion)).
This judgment is not merely a rubber stamp on the tally of
legislative and jury actions. Rather, it is an integral part of the
Eighth Amendment inquiry—and one that is entitled to independent
weight in reaching our ultimate decision. Here, as in Atkins , the
objective evidence of a national consensus is weaker than in most
prior cases in which the Court has struck down a particular
punishment under the Eighth Amendment. See Coker , supra , at 595–596 (plurality opinion) (striking down death
penalty for rape of an adult woman, where only one jurisdiction
authorized such punishment); Enmund , 458 U. S., at 792
(striking down death penalty for certain crimes of aiding and
abetting felony-murder, where only eight jurisdictions authorized
such punishment); Ford v. Wainwright , 477 U. S.,
at 408 (striking down capital punishment of the insane, where no
jurisdiction permitted this practice). In my view, the objective
evidence of national consensus, standing alone, was insufficient to
dictate the Court’s holding in Atkins . Rather, the
compelling moral proportionality argument against capital
punishment of mentally retarded offenders played a decisive role in persuading the Court that the practice
was inconsistent with the Eighth Amendment. Indeed, the force of
the proportionality argument in Atkins significantly
bolstered the Court’s confidence that the objective evidence in
that case did, in fact, herald the emergence of a genuine national
consensus. Here, by contrast, the proportionality argument against
the juvenile death penalty is so flawed that it can be given
little, if any, analytical weight—it proves too weak to resolve the
lingering ambiguities in the objective evidence of legislative
consensus or to justify the Court’s categorical rule. C Seventeen-year-old
murderers must be categorically exempted from capital punishment,
the Court says, because they “cannot with reliability be classified
among the worst offenders.” Ante , at 15. That conclusion
is premised on three perceived differences between “adults,” who
have already reached their 18th birthdays, and “juveniles,” who
have not. See ante , at 15–16. First, juveniles lack
maturity and responsibility and are more reckless than adults.
Second, juveniles are more vulnerable to outside influences because
they have less control over their surroundings. And third, a
juvenile’s character is not as fully formed as that of an adult.
Based on these characteristics, the Court determines that
17-year-old capital murderers are not as blameworthy as adults
guilty of similar crimes; that 17-year-olds are less likely than
adults to be deterred by the prospect of a death sentence; and that
it is difficult to conclude that a 17-year-old who commits even the
most heinous of crimes is “irretrievably depraved.” Ante ,
at 16–18. The Court suggests that “a rare case might arise in which
a juvenile offender has sufficient psychological maturity, and at
the same time demonstrates sufficient depravity, to merit a
sentence of death.” Ante , at 18. However, the Court argues
that a categorical age-based prohibition is justified as a
prophylactic rule because “[t]he differences between juvenile and
adult offenders are too marked and well understood to risk allowing
a youthful person to receive the death penalty despite insufficient
culpability.” Ante , at 19. 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. See, e.g. , Johnson v. Texas , 509 U. S. 350 , 367
(1993) (“There is no dispute that a defendant’s youth is a relevant
mitigating circumstance”); id. , at 376 (O’Connor, J.,
dissenting) (“[T]he vicissitudes of youth bear directly on the
young offender’s culpability and responsibility for the crime”); Eddings , 455 U. S., at 115–116 (“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, see ante , at 18, 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. Indeed, this appears to be just
such a case. Christopher Simmons’ murder of Shirley Crook was
premeditated, wanton, and cruel in the extreme. Well before he
committed this crime, Simmons declared that he wanted to kill
someone. On several occasions, he discussed with two friends (ages
15 and 16) his plan to burglarize a house and to murder the victim
by tying the victim up and pushing him from a bridge. Simmons said
they could “ ‘get away with it’ ” because they were
minors. Brief for Petitioners 3. In accord with this plan, Simmons
and his 15-year-old accomplice broke into Mrs. Crook’s home in the
middle of the night, forced her from her bed, bound her, and drove
her to a state park. There, they walked her to a railroad trestle
spanning a river, “hog-tied” her with electrical cable, bound her
face completely with duct tape, and pushed her, still alive, from
the trestle. She drowned in the water below. Id., at 4.
One can scarcely imagine the terror that this woman must have
suffered throughout the ordeal leading to her death. Whatever can
be said about the comparative moral culpability of 17-year-olds as
a general matter, Simmons’ actions unquestionably reflect “ ‘a
consciousness materially more “depraved” than that of’ … the
average murderer.” See Atkins , 536 U. S., at 319 (quoting Godfrey v. Georgia , 446 U. S. 420 , 433
(1980)). And Simmons’ prediction that he could murder with impunity
because he had not yet turned 18—though inaccurate—suggests that he did take into account the perceived risk of punishment in
deciding whether to commit the crime. Based on this evidence, the
sentencing jury certainly had reasonable grounds for concluding
that, despite Simmons’ youth, he “ha[d] sufficient psychological
maturity” when he committed this horrific murder, and “at the same
time demonstrate[d] sufficient depravity, to merit a sentence of
death.” See ante , at 18. The Court’s proportionality
argument suffers from a second and closely related defect: It fails
to establish that the differences in maturity between 17-year-olds
and young “adults” are both universal enough and significant enough
to justify a bright-line prophylactic rule against capital
punishment of the former. The Court’s analysis is premised on
differences in the aggregate between juveniles and adults,
which frequently do not hold true when comparing individuals.
Although it may be that many 17-year-old murderers lack sufficient
maturity to deserve the death penalty, some juvenile murderers may
be quite mature. Chronological age is not an unfailing measure of
psychological development, and common experience suggests that many
17-year-olds are more mature than the average young “adult.” In
short, the class of offenders exempted from capital punishment by
today’s decision is too broad and too diverse to warrant a
categorical prohibition. Indeed, the age-based line drawn by the
Court is indefensibly arbitrary—it quite likely will protect a
number of offenders who are mature enough to deserve the death
penalty and may well leave vulnerable many who are not. For purposes of proportionality
analysis, 17-year-olds as a class are qualitatively and materially
different from the mentally retarded. “Mentally retarded”
offenders, as we understood that category in Atkins , are defined by precisely the characteristics which render
death an excessive punishment. A mentally retarded person is, “by
definition,” one whose cognitive and behavioral capacities have
been proven to fall below a certain minimum. See Atkins ,
536 U. S., at 318; see also id. , at 308, n. 3
(discussing characteristics of mental retardation); id. ,
at 317, and n. 22 (leaving to the States the development of
mechanisms to determine which offenders fall within the class
exempt from capital punishment). Accordingly, for purposes of our
decision in Atkins , the mentally retarded are not merely less blameworthy for their misconduct or less likely to be deterred by the death penalty than others. Rather, a
mentally retarded offender is one whose demonstrated impairments
make it so highly unlikely that he is culpable enough to deserve
the death penalty or that he could have been deterred by the threat
of death, that execution is not a defensible punishment. There is no such inherent or accurate fit between an offender’s
chronological age and the personal limitations which the Court
believes make capital punishment excessive for 17-year-old
murderers. Moreover, it defies common sense to suggest that
17-year-olds as a class are somehow equivalent to mentally retarded
persons with regard to culpability or susceptibility to deterrence.
Seventeen-year-olds may, on average, be less mature than adults,
but that lesser maturity simply cannot be equated with the major,
lifelong impairments suffered by the mentally
retarded. The proportionality
issues raised by the Court clearly implicate Eighth Amendment
concerns. But these concerns may properly be addressed not by means
of an arbitrary, categorical age-based rule, but rather through
individualized sentencing in which juries are required to give
appropriate mitigating weight to the defendant’s immaturity, his
susceptibility to outside pressures, his cognizance of the
consequences of his actions, and so forth. In that way the
constitutional response can be tailored to the specific problem it
is meant to remedy. The Eighth Amendment guards against the
execution of those who are “insufficiently culpable,” see ante , at 19, in significant part, by requiring sentencing
that “reflect[s] a reasoned moral response to the
defendant’s background, character, and crime.” California v. Brown , 479 U. S. 538 , 545
(1987) (O’Connor, J., concurring). Accordingly, the sentencer in a
capital case must be permitted to give full effect to all
constitutionally relevant mitigating evidence. See Tennard v. Dretke , 542 U. S. ___, ___ (2004) (slip op., at 9–10); Lockett v. Ohio , 438 U. S. 586 , 604
(1978) (plurality opinion). A defendant’s youth or immaturity is,
of course, a paradigmatic example of such evidence. See Eddings , 455 U. S., at 115–116. Although the
prosecutor’s apparent attempt to use respondent’s youth as an
aggravating circumstance in this case is troubling, that conduct
was never challenged with specificity in the lower courts and is
not directly at issue here. As the Court itself suggests, such
“overreaching” would best be addressed, if at all, through a more
narrowly tailored remedy. See ante , at 19. The Court
argues that sentencing juries cannot accurately evaluate a youthful
offender’s maturity or give appropriate weight to the mitigating
characteristics related to youth. But, again, the Court presents no
real evidence—and the record appears to contain none—supporting
this claim. Perhaps more importantly, the Court fails to explain
why this duty should be so different from, or so much more
difficult than, that of assessing and giving proper effect to any
other qualitative capital sentencing factor. I would not be so
quick to conclude that the constitutional safeguards, the
sentencing juries, and the trial judges upon which we place so much
reliance in all capital cases are inadequate in this narrow
context. D I turn,
finally, to the Court’s discussion of foreign and international
law. Without question, there has been a global trend in recent
years towards abolishing capital punishment for under-18 offenders.
Very few, if any, countries other than the United States now permit
this practice in law or in fact. See ante , at 22–23. While
acknowledging that the actions and views of other countries do not
dictate the outcome of our Eighth Amendment inquiry, the Court
asserts that “the overwhelming weight of international opinion
against the juvenile death penalty … does provide respected and
significant confirmation for [its] own conclusions.” Ante ,
at 24. Because I do not believe that a genuine national consensus against the juvenile death penalty has yet developed, and
because I do not believe the Court’s moral proportionality argument
justifies a categorical, age-based constitutional rule, I can
assign no such confirmatory role to the international
consensus described by the Court. In short, the evidence of an
international consensus does not alter my determination that the
Eighth Amendment does not, at this time, forbid capital punishment
of 17-year-old murderers in all cases. Nevertheless, I disagree with Justice
Scalia’s contention, post , at 15–22 (dissenting opinion),
that foreign and international law have no place in our Eighth
Amendment jurisprudence. Over the course of nearly half a century,
the Court has consistently referred to foreign and international
law as relevant to its assessment of evolving standards of decency.
See Atkins , 536 U. S., at 317, n. 21; Thompson , 487 U. S., at 830–831, and n. 31 (plurality
opinion); Enmund , 458 U. S., at 796–797, n. 22; Coker , 433 U. S., at 596, n. 10 (plurality opinion); Trop , 356 U. S., at 102–103 (plurality opinion). This
inquiry reflects the special character of the Eighth Amendment,
which, as the Court has long held, draws its meaning directly from
the maturing values of civilized society. Obviously, American law
is distinctive in many respects, not least where the specific
provisions of our Constitution and the history of its exposition so
dictate. Cf. post , at 18–19 (Scalia, J., dissenting)
(discussing distinctively American rules of law related to the
Fourth Amendment and the Establishment Clause). But this Nation’s
evolving understanding of human dignity certainly is neither wholly
isolated from, nor inherently at odds with, the values prevailing
in other countries. On the contrary, we should not be surprised to
find congruence between domestic and international values,
especially where the international community has reached clear
agreement—expressed in international law or in the domestic laws of
individual countries—that a particular form of punishment is
inconsistent with fundamental human rights. At least, the existence
of an international consensus of this nature can serve to confirm
the reasonableness of a consonant and genuine American consensus.
The instant case presents no such domestic consensus, however, and
the recent emergence of an otherwise global consensus does not
alter that basic fact. *** In
determining whether the Eighth Amendment permits capital punishment
of a particular offense or class of offenders, we must look to
whether such punishment is consistent with contemporary standards
of decency. We are obligated to weigh both the objective evidence
of societal values and our own judgment as to whether death is an
excessive sanction in the context at hand. In the instant case, the
objective evidence is inconclusive; standing alone, it does not
demonstrate that our society has repudiated capital punishment of
17-year-old offenders in all cases. Rather, the actions of the
Nation’s legislatures suggest that, although a clear and durable
national consensus against this practice may in time emerge, that
day has yet to arrive. By acting so soon after our decision in Stanford , the Court both pre-empts the democratic debate
through which genuine consensus might develop and simultaneously
runs a considerable risk of inviting lower court reassessments of
our Eighth Amendment precedents. To be
sure, the objective evidence supporting today’s decision is similar
to (though marginally weaker than) the evidence before the Court in Atkins . But Atkins could not have been decided as
it was based solely on such evidence. Rather, the compelling
proportionality argument against capital punishment of the mentally
retarded played a decisive role in the Court’s Eighth Amendment
ruling. Moreover, the constitutional rule adopted in Atkins was tailored to this proportionality argument: It
exempted from capital punishment a defined group of offenders whose
proven impairments rendered it highly unlikely, and perhaps
impossible, that they could act with the degree of culpability
necessary to deserve death. And Atkins left to the States
the development of mechanisms to determine which individual
offenders fell within this class. In the instant case,
by contrast, the moral proportionality arguments against the
juvenile death penalty fail to support the rule the Court adopts
today. There is no question that “the chronological age of a minor
is itself a relevant mitigating factor of great weight,” Eddings , 455 U. S., at 116, and that sentencing juries
must be given an opportunity carefully to consider a defendant’s
age and maturity in deciding whether to assess the death penalty.
But the mitigating characteristics associated with youth do not
justify an absolute age limit. A legislature can reasonably
conclude, as many have, that some 17-year-old murderers are mature
enough to deserve the death penalty in an appropriate case. And
nothing in the record before us suggests that sentencing juries are
so unable accurately to assess a 17-year-old defendant’s maturity,
or so incapable of giving proper weight to youth as a mitigating
factor, that the Eighth Amendment requires the bright-line rule
imposed today. In the end, the Court’s flawed proportionality
argument simply cannot bear the weight the Court would place upon
it. Reasonable minds can
differ as to the minimum age at which commission of a serious crime
should expose the defendant to the death penalty, if at all. Many
jurisdictions have abolished capital punishment altogether, while
many others have determined that even the most heinous crime, if
committed before the age of 18, should not be punishable by death.
Indeed, were my office that of a legislator, rather than a judge,
then I, too, would be inclined to support legislation setting a
minimum age of 18 in this context. But a significant number of
States, including Missouri, have decided to make the death penalty
potentially available for 17-year-old capital murderers such as
respondent. Without a clearer showing that a genuine national
consensus forbids the execution of such offenders, this Court
should not substitute its own “inevitably subjective judgment” on
how best to resolve this difficult moral question for the judgments
of the Nation’s democratically elected legislatures. See Thompson , supra, at 854 (O’Connor, J., concurring
in judgment). I respectfully dissent. * In 12 other States
that have capital punishment, under-18 offenders can be subject to
the death penalty as a result of transfer statutes that permit such
offenders to be tried as adults for certain serious crimes. See ante , at 26 (Appendix A). As I observed in Thompson v. Oklahoma, 487 U. S. 815 , 850–852 (1988) (opinion
concurring in judgment): “There are many reasons, having nothing
whatsoever to do with capital punishment, that might motivate a
legislature to provide as a general matter for some [minors] to be
channeled into the adult criminal justice process.” Accordingly,
while these 12 States clearly cannot be counted as opposing capital punishment of under-18 offenders, the
fact that they permit such punishment through this indirect
mechanism does not necessarily show affirmative and unequivocal
legislative support for the practice. See ibid. SCALIA, J., DISSENTING ROPER V. SIMMONS 543 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-633 DONALD P. ROPER, SUPERINTENDENT, POTOSI
CORRECTIONAL CENTER, PETITIONER v. CHRISTOPHER SIMMONS

															on writ of certiorari to the supreme court of
missouri

															[March 1, 2005]

															   Justice Scalia, with whom The
Chief Justice and Justice Thomas join, dissenting.

															   In urging approval of a
constitution that gave life-tenured judges the power to nullify
laws enacted by the people’s representatives, Alexander Hamilton
assured the citizens of New York that there was little risk in
this, since “[t]he judiciary … ha[s] neither FORCE nor WILL but
merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter
ed. 1961). But Hamilton had in mind a traditional judiciary, “bound
down by strict rules and precedents which serve to define and point
out their duty in every particular case that comes before them.” Id., at 471. Bound down, indeed. What a mockery today’s
opinion makes of Hamilton’s expectation, announcing the Court’s
conclusion that the meaning of our Constitution has changed over
the past 15 years—not, mind you, that this Court’s decision 15
years ago was wrong , but that the Constitution has changed . The Court reaches this implausible
result by purporting to advert, not to the original meaning of the
Eighth Amendment, but to “the evolving standards of decency,” ante , at 6 (internal quotation marks omitted), of our
national society. It then finds, on the flimsiest of grounds, that
a national consensus which could not be perceived in our people’s
laws barely 15 years ago now solidly exists. Worse still, the Court
says in so many words that what our people’s laws say about the
issue does not, in the last analysis, matter: “[I]n the end our own
judgment will be brought to bear on the question of the
acceptability of the death penalty under the Eighth Amendment.” Ante , at 9 (internal quotation marks omitted). The Court
thus proclaims itself sole arbiter of our Nation’s moral
standards—and in the course of discharging that awesome
responsibility purports to take guidance from the views of foreign
courts and legislatures. Because I do not believe that the meaning
of our Eighth Amendment, any more than the meaning of other
provisions of our Constitution, should be determined by the
subjective views of five Members of this Court and like-minded
foreigners, I dissent.

															I

															   In determining that capital
punishment of offenders who committed murder before age 18 is
“cruel and unusual” under the Eighth Amendment, the Court first
considers, in accordance with our modern (though in my view
mistaken) jurisprudence, whether there is a “national consensus,” ibid. (internal quotation marks omitted), that laws
allowing such executions contravene our modern “standards of
decency,”[ Footnote 1 ] Trop v. Dulles, 356 U. S. 86 , 101 (1958).
We have held that this determination should be based on “objective
indicia that reflect the public attitude toward a given
sanction”—namely, “statutes passed by society’s elected
representatives.” Stanford v. Kentucky, 492
U. S. 361 , 370 (1989) (internal quotation marks omitted). As in Atkins v. Virginia, 536 U. S. 304 , 312
(2002), the Court dutifully recites this test and claims
halfheartedly that a national consensus has emerged since our
decision in Stanford , because 18 States—or 47% of States
that permit capital punishment—now have legislation prohibiting the
execution of offenders under 18, and because all of four States
have adopted such legislation since Stanford . See ante , at 11.

															   Words have no meaning if the
views of less than 50% of death penalty States can constitute a
national consensus. See Atkins , supra, at 342–345
(Scalia, J., dissenting). Our previous cases have required
overwhelming opposition to a challenged practice, generally over a
long period of time. In Coker v. Georgia, 433 U. S. 584 , 595–596 (1977), a
plurality concluded the Eighth Amendment prohibited capital
punishment for rape of an adult woman where only one jurisdiction
authorized such punishment. The plurality also observed that “[a]t
no time in the last 50 years ha[d] a majority of States authorized
death as a punishment for rape.” Id., at 593. In Ford v. Wainwright, 477 U. S. 399 , 408 (1986), we held
execution of the insane unconstitutional, tracing the roots of this
prohibition to the common law and noting that “no State in the
union permits the execution of the insane.” In Enmund v. Florida, 458 U. S. 782 , 792 (1982), we
invalidated capital punishment imposed for participation in a
robbery in which an accomplice committed murder, because 78% of all
death penalty States prohibited this punishment. Even there we
expressed some hesitation, because the legislative judgment was
“neither ‘wholly unanimous among state legislatures,’ … nor as
compelling as the legislative judgments considered in Coker .” Id., at 793. By contrast, agreement among
42% of death penalty States in Stanford , which the Court
appears to believe was correctly decided at the time, ante , at 20, was insufficient to show a national
consensus. See Stanford , supra, at 372.

															   In an attempt to keep afloat its implausible
assertion of national consensus, the Court throws overboard a
proposition well established in our Eighth Amendment jurisprudence.
“It should be observed,” the Court says, “that the Stanford Court should have considered those States that
had abandoned the death penalty altogether as part of the consensus
against the juvenile death penalty …; a State’s decision to bar the
death penalty altogether of necessity demonstrates a judgment that
the death penalty is inappropriate for all offenders, including
juveniles.” Ante , at 20. The insinuation that the Court’s
new method of counting contradicts only “the Stanford Court” is misleading. None of our cases dealing with an
alleged constitutional limitation upon the death penalty has
counted, as States supporting a consensus in favor of that
limitation, States that have eliminated the death penalty entirely.
See Ford , supra , at 408, n. 2; Enmund , supra , at 789; Coker , supra , at 594. And with good reason. Consulting States
that bar the death penalty concerning the necessity of making an
exception to the penalty for offenders under 18 is rather like
including old-order Amishmen in a consumer-preference poll on the
electric car. Of course they don’t like it, but that sheds
no light whatever on the point at issue. That 12 States favor no executions says something about consensus against the
death penalty, but nothing—absolutely nothing—about consensus that
offenders under 18 deserve special immunity from such a penalty. In
repealing the death penalty, those 12 States considered none of the factors that the Court puts forth as
determinative of the issue before us today—lower culpability of the
young, inherent recklessness, lack of capacity for considered
judgment, etc. What might be relevant, perhaps, is how many of
those States permit 16- and 17-year-old offenders to be treated as
adults with respect to noncapital offenses. (They all do;[ Footnote 2 ] indeed, some even require that juveniles as young as 14 be tried as adults
if they are charged with murder.[ Footnote 3 ]) The attempt by the Court to turn its
remarkable minority consensus into a faux majority by counting
Amishmen is an act of nomological desperation.

															   Recognizing that its national-consensus
argument was weak compared with our earlier cases, the Atkins Court found additional support in the fact that 16
States had prohibited execution of mentally retarded individuals
since Penry v. Lynaugh, 492 U. S. 302 (1989). Atkins , supra, at 314–316. Indeed, the Atkins Court distinguished Stanford on that very
ground, explaining that “[a]lthough we decided Stanford on
the same day as Penry , apparently only two state
legislatures have raised the threshold age for imposition of the
death penalty.” 536 U. S., at 315, n. 18 (emphasis added).
Now, the Court says a legislative change in four States is
“significant” enough to trigger a constitutional
prohibition.[ Footnote 4 ] Ante , at 11. It is amazing to think that this subtle shift
in numbers can take the issue entirely off the table for
legislative debate.

															   I also doubt whether many of the legislators
who voted to change the laws in those four States would have done
so if they had known their decision would (by the pronouncement of
this Court) be rendered irreversible. After all, legislative
support for capital punishment, in any form, has surged and ebbed
throughout our Nation’s history. As Justice O’Connor has
explained:

															   “The history of the death penalty
instructs that there is danger in inferring a settled societal
consensus from statistics like those relied on in this case. In
1846, Michigan became the first State to abolish the death
penalty … . In succeeding decades, other American States
continued the trend towards abolition … . Later, and
particularly after World War II, there ensued a steady and dramatic
decline in executions … . In the 1950’s and 1960’s, more
States abolished or radically restricted capital punishment, and
executions ceased completely for several years beginning in
1968… .

															   “In 1972, when this Court heard arguments on
the constitutionality of the death penalty, such statistics might
have suggested that the practice had become a relic, implicitly
rejected by a new societal consensus… . We now know that any
inference of a societal consensus rejecting the death penalty would
have been mistaken. But had this Court then declared the existence
of such a consensus, and outlawed capital punishment, legislatures
would very likely not have been able to revive it. The mistaken
premise of the decision would have been frozen into constitutional
law, making it difficult to refute and even more difficult to
reject.” Thompson v. Oklahoma, 487 U. S. 815 , 854–855
(1988) (opinion concurring in judgment).

															   Relying on such narrow margins is
especially inappropriate in light of the fact that a number of
legislatures and voters have expressly affirmed their support for
capital punishment of 16- and 17-year-old offenders since Stanford . Though the Court is correct that no State has
lowered its death penalty age, both the Missouri and Virginia
Legislatures—which, at the time of Stanford , had no
minimum age requirement—expressly established 16 as the minimum.
Mo. Rev. Stat. §565.020.2 (2000); Va. Code Ann. §18.2–10(a) (Lexis
2004). The people of Arizona[ Footnote 5 ] and Florida[ Footnote 6 ] have done the same by ballot initiative. Thus,
even States that have not executed an under-18 offender in recent
years unquestionably favor the possibility of capital punishment in
some circumstances.

															   The Court’s reliance on the infrequency of
executions, for under-18 murderers, ante , at 10–11, 13,
credits an argument that this Court considered and explicitly
rejected in Stanford . That infrequency is explained, we
accurately said, both by “the undisputed fact that a far smaller
percentage of capital crimes are committed by persons under 18 than
over 18,” 492 U. S., at 374, and by the fact that juries are
required at sentencing to consider the offender’s youth as a
mitigating factor, see Eddings v. Oklahoma, 455 U. S. 104 ,
115–116 (1982). Thus, “it is not only possible, but overwhelmingly
probable, that the very considerations which induce [respondent]
and [his] supporters to believe that death should never be
imposed on offenders under 18 cause prosecutors and juries to
believe that it should rarely be imposed.” Stanford , supra, at 374.

															   It is, furthermore, unclear that executions of
the relevant age group have decreased since we decided Stanford . Between 1990 and 2003, 123 of 3,599 death
sentences, or 3.4%, were given to individuals who committed crimes
before reaching age 18. V. Streib, The Juvenile Death Penalty
Today: Death Sentences and Executions for Juvenile Crimes, January
1, 1973–September 30, 2004, No. 75, p. 9 (Table 3) (last
updated Oct. 5, 2004), http://
www.law.onu.edu/faculty/streib/documentsJuvDeathSept302004.pdf (all
Internet materials as visited Jan. 12, 2005, and available in the
Clerk of Court’s case file) (hereinafter Juvenile Death Penalty
Today). By contrast, only 2.1% of those sentenced to death between
1982 and 1988 committed the crimes when they were under 18. See Stanford , supra, at 373 (citing V. Streib,
Imposition of Death Sentences for Juvenile Offenses, January 1,
1982, Through April 1, 1989, p. 2 (paper for
Cleveland-Marshall College of Law, April 5, 1989)). As for actual
executions of under-18 offenders, they constituted 2.4% of the
total executions since 1973. Juvenile Death Penalty Today 4. In Stanford , we noted that only 2% of the executions between
1642 and 1986 were of under-18 offenders and found that that lower
number did not demonstrate a national consensus against the
penalty. 492 U. S., at 373–374 (citing V. Streib, Death Penalty for
Juveniles 55, 57 (1987)). Thus, the numbers of under-18 offenders
subjected to the death penalty, though low compared with adults,
have either held steady or slightly increased since Stanford . These statistics in no way support the action
the Court takes today.

															II

															   Of course, the real force driving
today’s decision is not the actions of four state legislatures, but
the Court’s “ ‘ “own judgment” ’ ” that
murderers younger than 18 can never be as morally culpable as older
counterparts. Ante , at 9 (quoting Atkins , 536 U.
S., at 312 (in turn quoting Coker , 433 U. S., at 597
(plurality opinion))). The Court claims that this usurpation of the
role of moral arbiter is simply a “retur[n] to the rul[e]
established in decisions predating Stanford ,” ante , at 9. That supposed rule—which is reflected solely
in dicta and never once in a holding that purports to
supplant the consensus of the American people with the Justices’
views[ Footnote 7 ]—was
repudiated in Stanford for the very good reason that it
has no foundation in law or logic. If the Eighth Amendment set
forth an ordinary rule of law, it would indeed be the role of this
Court to say what the law is. But the Court having pronounced that
the Eighth Amendment is an ever-changing reflection of “the
evolving standards of decency” of our society, it makes no sense
for the Justices then to prescribe those standards rather
than discern them from the practices of our people. On the
evolving-standards hypothesis, the only legitimate function of this
Court is to identify a moral consensus of the American people. By
what conceivable warrant can nine lawyers presume to be the
authoritative conscience of the Nation? [ Footnote 8 ] The reason for
insistence on legislative primacy is obvious and fundamental:
“ ‘[I]n a democratic society legislatures, not courts, are
constituted to respond to the will and consequently the moral
values of the people.’ ” Gregg v. Georgia, 428 U. S. 153 ,
175–176 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.)
(quoting Furman v. Georgia, 408 U. S. 238 , 383
(1972) (Burger, C. J., dissenting)). For a similar reason we
have, in our determination of society’s moral standards, consulted
the practices of sentencing juries: Juries “ ‘maintain a link
between contemporary community values and the penal system’ ”
that this Court cannot claim for itself. Gregg , supra, at 181 (quoting Witherspoon v. Illinois, 391 U. S. 510 , 519,
n. 15 (1968)). Today’s opinion provides a
perfect example of why judges are ill equipped to make the type of
legislative judgments the Court insists on making here. To support
its opinion that States should be prohibited from imposing the
death penalty on anyone who committed murder before age 18, the
Court looks to scientific and sociological studies, picking and
choosing those that support its position. It never explains why
those particular studies are methodologically sound; none was ever
entered into evidence or tested in an adversarial proceeding. As
The Chief Justice has explained: “[M]ethodological and other errors
can affect the reliability and validity of estimates about the
opinions and attitudes of a population derived from various
sampling techniques. Everything from variations in the survey
methodology, such as the choice of the target population, the
sampling design used, the questions asked, and the statistical
analyses used to interpret the data can skew the results.” Atkins , supra, at 326–327 (dissenting opinion)
(citing R. Groves, Survey Errors and Survey Costs (1989); 1 C.
Turner & E. Martin, Surveying Subjective Phenomena
(1984)). In other words, all the Court has
done today, to borrow from another context, is to look over the
heads of the crowd and pick out its friends. Cf. Conroy v. Aniskoff, 507 U. S. 511 , 519
(1993) (Scalia, J., concurring in judgment). 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. Brief for APA as Amicus
Curiae , O. T. 1989, No. 88–805 etc., p. 18. 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.” Id., at 19–20 (citations omitted). 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.’ ” McCleskey v. Kemp, 481 U. S. 279 ,
319 (1987) (quoting Gregg, supra, at 186). 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. Moreover, the cited studies
describe only adolescents who engage in risky or antisocial
behavior, as many young people do. Murder, however, is more than
just risky or antisocial behavior. It is entirely consistent to
believe that young people often act impetuously and lack judgment,
but, at the same time, to believe that those who commit
premeditated murder are—at least sometimes—just as culpable as
adults. Christopher Simmons, who was only seven months shy of his
18th birthday when he murdered Shirley Crook, described to his
friends beforehand —“[i]n chilling, callous terms,” as the
Court puts it, ante , at 1—the murder he planned to commit.
He then broke into the home of an innocent woman, bound her with
duct tape and electrical wire, and threw her off a bridge alive and
conscious. Ante , at 2. In their amici brief, the
States of Alabama, Delaware, Oklahoma, Texas, Utah, and Virginia
offer additional examples of murders committed by individuals under
18 that involve truly monstrous acts. In Alabama, two 17-year-olds,
one 16-year-old, and one 19-year-old picked up a female hitchhiker,
threw bottles at her, and kicked and stomped her for approximately
30 minutes until she died. They then sexually assaulted her
lifeless body and, when they were finished, threw her body off a
cliff. They later returned to the crime scene to mutilate her
corpse. See Brief for Alabama et al. as Amici Curiae 9–10; see also Loggins v. State , 771 So. 2d
1070, 1074–1075 (Ala. Crim. App. 1999); Duncan v. State , 827 So. 2d 838, 840–841 (Ala. Crim. App.
1999). Other examples in the brief are equally shocking. Though
these cases are assuredly the exception rather than the rule, the
studies the Court cites in no way justify a constitutional
imperative that prevents legislatures and juries from treating
exceptional cases in an exceptional way—by determining that some
murders are not just the acts of happy-go-lucky teenagers, but
heinous crimes deserving of death. That “almost every State
prohibits those under 18 years of age from voting, serving on
juries, or marrying without parental consent,” ante , at
15, 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 , 492 U. S., at
374, 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.” Ibid. 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. See Eddings, 455 U. S., at 115–117. 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. The Court concludes, however, ante , at 18, that juries cannot be trusted with the
delicate task of weighing a defendant’s youth along with the other
mitigating and aggravating factors of his crime. This startling
conclusion undermines the very foundations of our capital
sentencing system, which entrusts juries with “mak[ing] the
difficult and uniquely human judgments that defy codification and
that ‘buil[d] discretion, equity, and flexibility into a legal
system.’ ” McCleskey , supra, at 311 (quoting
H. Kalven & H. Zeisel, The American Jury 498 (1966)). The Court
says, ante , at 18, that juries will be unable to
appreciate the significance of a defendant’s youth when faced with
details of a brutal crime. This assertion is based on no evidence;
to the contrary, the Court itself acknowledges that the execution
of under-18 offenders is “infrequent” even in the States “without a
formal prohibition on executing juveniles,” ante , at 10,
suggesting that juries take seriously their responsibility to weigh
youth as a mitigating factor. Nor does the Court suggest a
stopping point for its reasoning. If juries cannot make appropriate
determinations in cases involving murderers under 18, in what other
kinds of cases will the Court find jurors deficient? We have
already held that no jury may consider whether a mentally deficient
defendant can receive the death penalty, irrespective of his crime.
See Atkins , 536 U. S., at 321. Why not take other
mitigating factors, such as considerations of childhood abuse or
poverty, away from juries as well? Surely jurors “overpower[ed]” by
“the brutality or cold-blooded nature” of a crime, ante ,
at 19, could not adequately weigh these mitigating factors
either. The Court’s contention that
the goals of retribution and deterrence are not served by executing
murderers under 18 is also transparently false. The argument that
“[r]etribution is not proportional if the law’s most severe penalty
is imposed on one whose culpability or blameworthiness is
diminished,” ante , at 17, is simply an extension of the
earlier, false generalization that youth always defeats
culpability. The Court claims that “juveniles will be less
susceptible to deterrence,” ante, at 18, because
“ ‘[t]he likelihood that the teenage offender has made the
kind of cost-benefit analysis that attaches any weight to the
possibility of execution is so remote as to be virtually
nonexistent,’ ” ibid. (quoting Thompson, 487
U. S., at 837). The Court unsurprisingly finds no support for this
astounding proposition, save its own case law. The facts of this
very case show the proposition to be false. Before committing the
crime, Simmons encouraged his friends to join him by assuring them
that they could “get away with it” because they were minors. State ex rel. Simmons v. Roper , 112 S. W. 3d
397, 419 (Mo. 2003) (Price, J., dissenting). This fact may have
influenced the jury’s decision to impose capital punishment despite
Simmons’ age. Because the Court refuses to entertain the
possibility that its own unsubstantiated generalization about
juveniles could be wrong, it ignores this evidence
entirely. III Though the views
of our own citizens are essentially irrelevant to the Court’s
decision today, the views of other countries and the so-called
international community take center stage. The Court begins
by noting that “Article 37 of the United Nations Convention on the
Rights of the Child, [1577 U. N. T. S. 3, 28
I. L. M. 1448, 1468–1470, entered into force Sept. 2,
1990], which every country in the world has ratified save for
the United States and Somalia, contains an express prohibition
on capital punishment for crimes committed by juveniles under 18.” Ante , at 22 (emphasis added). The Court also discusses the
International Covenant on Civil and Political Rights (ICCPR),
December 19, 1966, 999 U. N. T. S. 175, ante , at 13, 22, which the Senate ratified only subject to
a reservation that reads: “The United States reserves the
right, subject to its Constitutional restraints, to impose capital
punishment on any person (other than a pregnant woman) duly
convicted under existing or future laws permitting the imposition
of capital punishment, including such punishment for crime
committed by persons below eighteen years of age.” Senate Committee
on Foreign Relations, International Covenant on Civil and Political
Rights, S. Exec. Rep. No. 102–23, (1992). Unless the Court has added to its
arsenal the power to join and ratify treaties on behalf of the
United States, I cannot see how this evidence favors, rather than
refutes, its position. That the Senate and the President—those
actors our Constitution empowers to enter into treaties, see Art.
II, §2—have declined to join and ratify treaties prohibiting
execution of under-18 offenders can only suggest that our
country has either not reached a national consensus on the
question, or has reached a consensus contrary to what the Court
announces. That the reservation to the ICCPR was made in 1992 does
not suggest otherwise, since the reservation still remains in place
today. It is also worth noting that, in addition to barring the
execution of under-18 offenders, the United Nations Convention on
the Rights of the Child prohibits punishing them with life in
prison without the possibility of release. If we are truly going to
get in line with the international community, then the Court’s
reassurance that the death penalty is really not needed, since “the
punishment of life imprisonment without the possibility of parole
is itself a severe sanction,” ante , at 18, gives little
comfort. It is interesting that whereas
the Court is not content to accept what the States of our Federal
Union say , but insists on inquiring into what they do (specifically, whether they in fact apply the
juvenile death penalty that their laws allow), the Court is quite
willing to believe that every foreign nation—of whatever tyrannical
political makeup and with however subservient or incompetent a
court system—in fact adheres to a rule of no death penalty
for offenders under 18. Nor does the Court inquire into how many of
the countries that have the death penalty, but have forsworn (on
paper at least) imposing that penalty on offenders under 18, have
what no State of this country can constitutionally have: a mandatory death penalty for certain crimes, with no
possibility of mitigation by the sentencing authority, for youth or
any other reason. I suspect it is most of them. See, e.g. ,
R. Simon & D. Blaskovich, A Comparative Analysis of Capital
Punishment: Statutes, Policies, Frequencies, and Public Attitudes
the World Over 25, 26, 29 (2002). To forbid the death penalty for
juveniles under such a system may be a good idea, but it says
nothing about our system, in which the sentencing authority,
typically a jury, always can, and almost always does, withhold the
death penalty from an under-18 offender except, after considering
all the circumstances, in the rare cases where it is warranted. The
foreign authorities, in other words, do not even speak to the issue
before us here. More fundamentally, however,
the basic premise of the Court’s argument—that American law should
conform to the laws of the rest of the world—ought to be rejected
out of hand. In fact the Court itself does not believe it. In many
significant respects the laws of most other countries differ from
our law—including not only such explicit provisions of our
Constitution as the right to jury trial and grand jury indictment,
but even many interpretations of the Constitution prescribed by
this Court itself. The Court-pronounced exclusionary rule, for
example, is distinctively American. When we adopted that rule in Mapp v. Ohio, 367 U. S. 643 , 655
(1961), it was “unique to American Jurisprudence.” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 , 415
(1971) (Burger, C. J., dissenting). Since then a categorical
exclusionary rule has been “universally rejected” by other
countries, including those with rules prohibiting illegal searches
and police misconduct, despite the fact that none of these
countries “appears to have any alternative form of discipline for
police that is effective in preventing search violations.” Bradley, Mapp Goes Abroad, 52 Case W. Res. L. Rev. 375,
399–400 (2001). England, for example, rarely excludes evidence
found during an illegal search or seizure and has only recently
begun excluding evidence from illegally obtained confessions. See
C. Slobogin, Criminal Procedure: Regulation of Police Investigation
550 (3d ed. 2002). Canada rarely excludes evidence and will only do
so if admission will “bring the administration of justice into
disrepute.” Id. , at 550–551 (internal quotation marks
omitted). The European Court of Human Rights has held that
introduction of illegally seized evidence does not violate the
“fair trial” requirement in Article 6, §1, of the European
Convention on Human Rights. See Slobogin, supra , at 551;
Bradley, supra, at 377–378. The Court has been oblivious
to the views of other countries when deciding how to interpret our
Constitution’s requirement that “Congress shall make no law
respecting an establishment of religion… .” Amdt. 1. Most
other countries—including those committed to religious
neutrality—do not insist on the degree of separation between church
and state that this Court requires. For example, whereas “we have
recognized special Establishment Clause dangers where the
government makes direct money payments to sectarian institutions,” Rosenberger v. Rector and Visitors of Univ. of
Va., 515 U. S.
819 , 842 (1995) (citing cases), countries such as the
Netherlands, Germany, and Australia allow direct government funding
of religious schools on the ground that “the state can only be
truly neutral between secular and religious perspectives if it does
not dominate the provision of so key a service as education, and
makes it possible for people to exercise their right of religious
expression within the context of public funding.” S. Monsma &
J. Soper, The Challenge of Pluralism: Church and State in Five
Democracies 207 (1997); see also id. , at 67, 103, 176.
England permits the teaching of religion in state schools. Id. , at 142. Even in France, which is considered
“America’s only rival in strictness of church-state separation,”
“[t]he practice of contracting for educational services provided by
Catholic schools is very widespread.” C. Glenn, The Ambiguous
Embrace: Government and Faith-Based Schools and Social Agencies 110
(2000). And let us not forget the
Court’s abortion jurisprudence, which makes us one of only six
countries that allow abortion on demand until the point of
viability. See Larsen, Importing Constitutional Norms from a “Wider
Civilization”: Lawrence and the Rehnquist Court’s Use of
Foreign and International Law in Domestic Constitutional
Interpretation, 65 Ohio St. L. J. 1283, 1320 (2004); Center
for Reproductive Rights, The World’s Abortion Laws (June 2004),
http://www.reproductiverights.org/ pub_fac_abortion_laws.html.
Though the Government and amici in cases following Roe v. Wade, 410 U. S. 113 (1973),
urged the Court to follow the international community’s lead, these
arguments fell on deaf ears. See McCrudden, A Part of the Main? The
Physician-Assisted Suicide Cases and Comparative Law Methodology in
the United States Supreme Court, in Law at the End of Life: The
Supreme Court and Assisted Suicide 125, 129–130 (C. Schneider ed.
2000). The Court’s special reliance
on the laws of the United Kingdom is perhaps the most indefensible
part of its opinion. It is of course true that we share a common
history with the United Kingdom, and that we often consult English
sources when asked to discern the meaning of a constitutional text
written against the backdrop of 18th-century English law and legal
thought. If we applied that approach today, our task would be an
easy one. As we explained in Harmelin v. Michigan, 501 U. S. 957 , 973–974
(1991), the “Cruell and Unusuall Punishments” provision of the
English Declaration of Rights was originally meant to describe
those punishments “ ‘out of [the Judges’] Power’ ”—that
is, those punishments that were not authorized by common law or
statute, but that were nonetheless administered by the Crown or the
Crown’s judges. Under that reasoning, the death penalty for
under-18 offenders would easily survive this challenge. The Court
has, however—I think wrongly—long rejected a purely originalist
approach to our Eighth Amendment, and that is certainly not the
approach the Court takes today. Instead, the Court undertakes the
majestic task of determining (and thereby prescribing) our Nation’s current standards of decency. It is beyond
comprehension why we should look, for that purpose, to a country
that has developed, in the centuries since the Revolutionary
War—and with increasing speed since the United Kingdom’s recent
submission to the jurisprudence of European courts dominated by
continental jurists—a legal, political, and social culture quite
different from our own. If we took the Court’s directive seriously,
we would also consider relaxing our double jeopardy prohibition,
since the British Law Commission recently published a report that
would significantly extend the rights of the prosecution to appeal
cases where an acquittal was the result of a judge’s ruling that
was legally incorrect. See Law Commission, Double Jeopardy and
Prosecution Appeals, LAW COM No. 267, Cm 5048, p. 6, ¶1.19
(Mar. 2001); J. Spencer, The English System in European Criminal
Procedures 142, 204, and n. 239 (M. Delmas-Marty & J.
Spencer eds. 2002). We would also curtail our right to jury trial
in criminal cases since, despite the jury system’s deep roots in
our shared common law, England now permits all but the most serious
offenders to be tried by magistrates without a jury. See D.
Feldman, England and Wales, in Criminal Procedure: A Worldwide
Study 91, 114–115 (C. Bradley ed. 1999). The Court should either
profess its willingness to reconsider all these matters in light of
the views of foreigners, or else it should cease putting forth
foreigners’ views as part of the reasoned basis of its
decisions. To invoke alien law when it agrees with one’s own
thinking, and ignore it otherwise, is not reasoned decisionmaking,
but sophistry.[ Footnote
9 ] The Court responds that “[i]t
does not lessen our fidelity to the Constitution or our pride in
its origins to acknowledge that the express affirmation of certain
fundamental rights by other nations and peoples simply underscores
the centrality of those same rights within our own heritage of
freedom.” Ante , at 24–25. To begin with, I do not believe
that approval by “other nations and peoples” should buttress our
commitment to American principles any more than (what should
logically follow) disapproval by “other nations and peoples” should
weaken that commitment. More importantly, however, the Court’s
statement flatly misdescribes what is going on here. Foreign
sources are cited today, not to underscore our “fidelity”
to the Constitution, our “pride in its origins,” and “our own
[American] heritage.” To the contrary, they are cited to set
aside the centuries-old American practice—a practice still
engaged in by a large majority of the relevant States—of letting a
jury of 12 citizens decide whether, in the particular case, youth
should be the basis for withholding the death penalty. What these
foreign sources “affirm,” rather than repudiate, is the Justices’
own notion of how the world ought to be, and their diktat that it
shall be so henceforth in America. The Court’s parting attempt to
downplay the significance of its extensive discussion of foreign
law is unconvincing. “Acknowledgment” of foreign approval has no
place in the legal opinion of this Court unless it is part of
the basis for the Court’s judgment —which is surely what it
parades as today. IV To add insult to
injury, the Court affirms the Missouri Supreme Court without even
admonishing that court for its flagrant disregard of our precedent
in Stanford . Until today, we have always held that “it is
this Court’s prerogative alone to overrule one of its precedents.” State Oil Co. v. Khan, 522 U. S. 3 , 20 (1997).
That has been true even where “ ‘changes in judicial doctrine’
ha[ve] significantly undermined” our prior holding, United
States v. Hatter, 532 U. S. 557 , 567
(2001) (quoting Hatter v. United States , 64
F. 3d 647, 650 (CA Fed. 1995)), and even where our prior
holding “appears to rest on reasons rejected in some other line of
decisions,” Rodriguez de Quijas v. Shearson/ American
Express, Inc., 490 U. S. 477 , 484
(1989). Today, however, the Court silently approves a state-court
decision that blatantly rejected controlling precedent. One must admit
that the Missouri Supreme Court’s action, and this Court’s
indulgent reaction, are, in a way, understandable. In a system
based upon constitutional and statutory text democratically
adopted, the concept of “law” ordinarily signifies that particular
words have a fixed meaning. Such law does not change, and this
Court’s pronouncement of it therefore remains authoritative until
(confessing our prior error) we overrule. The Court has purported
to make of the Eighth Amendment, however, a mirror of the passing
and changing sentiment of American society regarding penology. The
lower courts can look into that mirror as well as we can; and what
we saw 15 years ago bears no necessary relationship to what they
see today. Since they are not looking at the same text, but at a
different scene, why should our earlier decision control their
judgment? However sound philosophically,
this is no way to run a legal system. We must disregard the new
reality that, to the extent our Eighth Amendment decisions
constitute something more than a show of hands on the current
Justices’ current personal views about penology, they purport to be
nothing more than a snapshot of American public opinion at a
particular point in time (with the timeframes now shortened to a
mere 15 years). We must treat these decisions just as though they
represented real law, real prescriptions
democratically adopted by the American people, as conclusively
(rather than sequentially) construed by this Court. Allowing lower
courts to reinterpret the Eighth Amendment whenever they decide
enough time has passed for a new snapshot leaves this Court’s
decisions without any force—especially since the “evolution” of our
Eighth Amendment is no longer determined by objective criteria. To
allow lower courts to behave as we do, “updating” the Eighth
Amendment as needed, destroys stability and makes our case law an
unreliable basis for the designing of laws by citizens and their
representatives, and for action by public officials. The result
will be to crown arbitrariness with chaos. Footnote
1 The Court ignores entirely
the threshold inquiry in determining whether a particular
punishment complies with the Eighth Amendment: whether it is one of
the “modes or acts of punishment that had been considered cruel and
unusual at the time that the Bill of Rights was adopted.” Ford v. Wainwright, 477 U. S. 399 , 405 (1986). As we have
noted in prior cases, the evidence is unusually clear that the
Eighth Amendment was not originally understood to prohibit capital
punishment for 16- and 17-year-old offenders. See Stanford v. Kentucky, 492
U. S. 361 , 368 (1989). At the time the Eighth Amendment was
adopted, the death penalty could theoretically be imposed for the
crime of a 7-year-old, though there was a rebuttable presumption of
incapacity to commit a capital (or other) felony until the age of
14. See ibid. (citing 4 W. Blackstone, Commentaries
*23–*24; 1 M. Hale, Pleas of the Crown 24–29 (1800)). Footnote
2 See Alaska Stat. §47.12.030
(Lexis 2002); Haw. Rev. Stat. §571–22 (1999); Iowa Code §232.45
(2003); Me. Rev. Stat. Ann., Tit. 15, §3101(4) (West 2003); Mass.
Gen. Laws Ann., ch. 119, §74 (West 2003); Mich. Comp. Laws Ann.
§764.27 (West 2000); Minn. Stat. §260B.125 (2002); N. D. Cent.
Code §27–20–34 (Lexis Supp. 2003); R. I. Gen. Laws §14–1–7
(Lexis 2002); Vt. Stat. Ann., Tit. 33, §5516 (Lexis 2001);
W. Va. Code §49–5–10 (Lexis 2004); Wis. Stat. §938.18
(2003–2004); see also National Center for Juvenile Justice, Trying
and Sentencing Juveniles as Adults: An Analysis of State Transfer
and Blended Sentencing Laws 1 (Oct. 2003). The District of Columbia
is the only jurisdiction without a death penalty that specifically
exempts under-18 offenders from its harshest sanction—life
imprisonment without parole. See D. C. Code §22–2104 (West
2001). Footnote
3 See Mass. Gen. Laws Ann., ch.
119, §74 (West 2003); N. D. Cent. Code §27–20–34 (Lexis Supp.
2003); W. Va. Code §49–5–10 (Lexis 2004). Footnote
4 As the Court notes,
Washington State’s decision to prohibit executions of offenders
under 18 was made by a judicial, not legislative, decision. State v. Furman , 122 Wash. 2d 440, 459, 858
P. 2d 1092, 1103 (1993), construed the State’s death penalty
statute—which did not set any age limit—to apply only to persons
over 18. The opinion found that construction necessary to avoid
what it considered constitutional difficulties, and did not purport
to reflect popular sentiment. It is irrelevant to the question of
changed national consensus. Footnote
5 In 1996, Arizona’s Ballot
Proposition 102 exposed under-18 murderers to the death penalty by
automatically transferring them out of juvenile courts. The statute
implementing the proposition required the county attorney to “bring
a criminal prosecution against a juvenile in the same manner as an
adult if the juvenile is fifteen, sixteen or seventeen years of age
and is accused of … first degree murder.” Ariz. Rev. Stat. Ann.
§13–501 (West 2001). The Arizona Supreme Court has added to this
scheme a constitutional requirement that there be an individualized
assessment of the juvenile’s maturity at the time of the offense.
See State v. Davolt , 207 Ariz. 191, 214–216, 84
P. 3d 456, 479–481 (2004). Footnote
6 Florida voters approved an
amendment to the State Constitution, which changed the wording from
“cruel or unusual” to “cruel and unusual,” Fla.
Const., Art. I, §17 (2003). See Commentary to 1998 Amendment, 25B
Fla. Stat. Ann., p. 180 (West 2004). This was a response to a
Florida Supreme Court ruling that “cruel or unusual”
excluded the death penalty for a defendant who committed murder
when he was younger than 17. See Brennan v. State , 754 So. 2d 1, 5 (Fla. 1999). By adopting the
federal constitutional language, Florida voters effectively adopted
our decision in Stanford v. Kentucky , 492
U. S. 361 (1989). See Weaver, Word May Allow Execution of
16-Year-Olds, Miami Herald, Nov. 7, 2002, p. 7B. Footnote
7 See, e.g., Enmund v. Florida , 458 U. S. 782 , 801 (1982) (“[W]e have
no reason to disagree with th[e] judgment [of the state
legislatures] for purposes of construing and applying the Eighth
Amendment”); Coker v. Georgia , 433 U. S. 584 , 597 (1977) (plurality
opinion) (“[T]he legislative rejection of capital punishment for
rape strongly confirms our own judgment”). Footnote
8 Justice O’Connor agrees with
our analysis that no national consensus exists here, ante ,
at 8–12 (dissenting opinion). She is nonetheless prepared (like the
majority) to override the judgment of America’s legislatures if it
contradicts her own assessment of “moral proportionality,” ante, at 12. She dissents here only because it does not.
The votes in today’s case demonstrate that the offending of
selected lawyers’ moral sentiments is not a predictable basis for
law—much less a democratic one. Footnote
9 Justice O’Connor asserts that
the Eighth Amendment has a “special character,” in that it “draws
its meaning directly from the maturing values of civilized
society.” Ante, at 19. Nothing in the text reflects such a
distinctive character—and we have certainly applied the “maturing
values” rationale to give brave new meaning to other provisions of
the Constitution, such as the Due Process Clause and the Equal
Protection Clause. See, e.g. , Lawrence v. Texas, 539
U. S. 558 , 571–573 (2003); United States v. Virginia, 518 U. S. 515 , 532–534
(1996); Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833 , 847–850 (1992). Justice O’Connor asserts that an
international consensus can at least “serve to confirm the
reasonableness of a consonant and genuine American consensus.” Ante , at 19 . Surely not unless it can also
demonstrate the un reasonableness of such a consensus.
Either America’s principles are its own, or they follow the world;
one cannot have it both ways. Finally, Justice O’Connor finds it
unnecessary to consult foreign law in the present case because
there is “no . . . domestic consensus” to be confirmed. Ibid. But since she believes that the Justices can
announce their own requirements of “moral proportionality” despite
the absence of consensus, why would foreign law not be relevant to that judgment? If foreign law is powerful enough to
supplant the judgment of the American people, surely it is powerful
enough to change a personal assessment of moral
proportionality.