« Talk of foreign practices in Roper | Main | More evidence of the death of death? »

March 1, 2005

Using Roper's focus on age in post-Booker sentencings

The Supreme Court's ruling in Roper (basics here and here) includes much interesting discussion of the "diminished culpability of juveniles" and the "mitigating force of youth," due in part to the "immaturity" and "vulnerability" of juveniles. Though much is said in all the Roper opinions about what this should mean for purposes of the death penalty, my Booker-oriented mind has me thinking about what this should mean for non-capital sentencing.

Of course, "death is different" and rarely does capital sentencing jurisprudence impact non-capital sentencing decision-making (even though I think it should).  Nevertheless, if the Constitution now demands a categorical bar on the death penalty for crimes committed before 18 because of some offenders' "immaturity" and "vulnerability" and the general "mitigating force of youth," shouldn't these same realities and concerns come to bear in at least some non-capital sentencing cases?

The US Sentencing Guidelines have long declared age a "discouraged" sentencing factor, though post-Booker we have seen a few judges question whether that determination jibes with the commands of 3553(a).  In my view, Roper adds significant force to an argument that age must (or at least should) be a significant consideration in some non-capital sentencing decisions.

March 1, 2005 at 12:00 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200d8345807a369e2

Listed below are links to weblogs that reference Using Roper's focus on age in post-Booker sentencings:

» Executing juvenile arguments from The Slithery D
If you honestly believe that Simmons and his ilk should not be put to death because they aren't adults, how can you justify life imprisonment? Any imprisonment at all? [Read More]

Tracked on Mar 1, 2005 3:11:17 PM

Comments

I do not think that the Court's statements about age in Simmons are directly applicable in non-capital punishment cases. With respect to this factor, at least, death really is different. The reason the Sentencing Commission felt compelled to list age as a usually-not-relevant factor is that, outside of capital punishment, it cuts in opposing directions: on the one hand, it may suggest less personal responsibility (a la Simmons), but on the other hand it often suggests a need to protect society from future crimes. (It's one thing for a 40-year-old to have three priors; entirely something else for a 20 year-old to have same.) In capital cases, the issue of incapacitation drops out, because the alternative is life in prison. But not so in other cases. In sum, even if age points in one direction in capital cases (less culpability), it points in opposing directions in many non-capital cases, and both directions are listed in 18 USC 3553(a). That is why, as I understand it, the Commission decided that the two aspects of age that may be relevant "cancel out," leaving the factor itself of dubious value for just sentencing according to the considerations listed in the Sentencing Reform Act.

K

Posted by: kate stith | Mar 1, 2005 10:50:49 PM

Your account, Kate, makes perfect sense as a general statement of why the USSC did, and perhaps sensibly should, discourage consideration of age in most cases. But I could readily imagine a more refined approach which would say, for example, first offenders who are very young (for culpability reasons) or very old (for crime control reasons) merit a sentencing "discount" on account of age, while prime-crime repeated offenders get no such discount. But, as you play this out, it does get to look suspect (even though, I believe, Virginia works age into its risk assessment models).

Thanks for the comment.

Posted by: Doug B. | Mar 1, 2005 11:25:26 PM

I just want to ask everone. If you punish children as adults, should they not also be rewarded as an aduld. It is belived that a child can make a decision as an adult to kill someone, and be punished acording. For anyone who belives this, I ask you how would you feel about letting 14yr. olds vote?

Posted by: aron gonzalez | Aug 9, 2007 3:52:20 PM

I just want to ask everone. If you punish children as adults, should they not also be rewarded as an aduld. It is belived that a child can make a decision as an adult to kill someone, and be punished acording. For anyone who belives this, I ask you how would you feel about letting 14yr. olds vote?

Posted by: aron gonzalez | Aug 9, 2007 3:52:24 PM

This is pretty nuts. America doesn't know how to treat its youth. The American legal system is guilty of child neglect in the 1st degree. And that's the fucking truth.

Posted by: Jersey | Aug 24, 2008 12:50:54 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB