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November 23, 2009

Atkins, juves and rules versus standards in the Eighth Amendment jurisprudence

The latest Sidebar feature from Adam Liptak in the New York Times has an interesting little discussion of rules and standards in the development of the Eighth Amendment jurisprudence.  The piece is headlined "Bright Lines Blur in Juvenile Sentencing," though it discusses post-Atkins litigation concerning mental retardation as much as it discusses juve sentencing.  Here are excerpts from the piece:

Here is an example of a rule, established by the Supreme Court in Roper v. Simmons in 2005: If you commit murder even hours before your 18th birthday, you cannot be put to death for your crime. The same killing a few hours later may be a capital offense. The court drew a bright-line rule at 18.

Here is an example of a standard, one proposed by Chief Justice John G. Roberts Jr. this month at Supreme Court arguments over whether juvenile offenders may be sentenced to life without the possibility of parole: Why not, the chief justice asked, interpret the Eighth Amendment’s ban on cruel and unusual punishment to require sentencing judges to consider the defendant’s age on a case-by-case basis?

“If you do have a case where it’s the 17-year-old who is one week shy of his 18th birthday and it is the most grievous crime spree you can imagine, you can determine that in that case life without parole may not be disproportionate,” Chief Justice Roberts said.  “If it’s a less grievous crime and there is, for example, a younger defendant involved, then in that case maybe it is disproportionate.”...

Proving age is pretty straightforward, and inmates who were under 18 when they committed the crimes that sent them to death row promptly had their sentences commuted after the court’s decision in Roper.  The Atkins decision, on the other hand, “has spawned extensive, intricate and bitterly contested litigation,” Carol S. Steiker and Jordan M. Steiker wrote in the DePaul Law Review last year....

A new study from three law professors at Cornell, one that resonates with potential lessons for juvenile life without parole, shows that states making case-by-case determinations have taken wildly different approaches.

The study, conducted by John H. Blume, Sheri Lynn Johnson and Christopher Seeds, tried to collect all determinations concerning retardation in capital cases in the six years after Atkins, finding 234.  That means about 7 percent of the nation’s roughly 3,200 death row inmates have claimed to be mentally retarded.

Nationwide, the claims have succeeded about 38 percent of the time. But state success rates vary widely.  North Carolina courts heard 21 Atkins claims and ruled in the inmate’s favor 17 times. Alabama courts heard 26 claims and ruled for the inmate 3 times.

Recall that the Supreme Court said an IQ of “approximately 70” should usually satisfy the first part of the test.  In Alabama, Mississippi and Texas, four inmates with IQ scores of 66 and 67 were held not to be retarded.  But in Pennsylvania, an inmate whose score ranged from 70 to 75 won an Atkins claim.  In California, a score of 84 did the trick.

Professor Johnson said there was a lesson here. “If you look at Atkins, which is supposed to be a categorical rule but has some play in the definitions, you get enormous pushback from the states that don’t want to do it,” she said.  Were the court to adopt Chief Justice Roberts’s approach for juvenile life without parole, she added, “the problem of Atkins’s application would be greatly magnified.”

November 23, 2009 at 03:04 PM | Permalink


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Chronological age v. Brain Maturation Age.

There are peer-reviewed studies suggesting that brain maturation for males continues into their early 20's. Should we include such information into the decisional sentencing matrix? Meritocracy seems to be a well-intrenched sentencing consideration. The problem is who wants to pay for all the brain scans, their interpretation and presentation to the sentencer. Differential access to resources suggests that indigent juveniles/young adults won't be able to mount an effective sentencing mitigation hearing unless the public funds it.

Posted by: K | Nov 23, 2009 5:22:18 PM

This article nails it. The problem with the chief justices perspective is that it assumes that there are applications of the standard upon which all reasonable minded people can agree. There aren't.

Now, I for one don't have a problem with the diversity displayed in the article. But I think it's fair for the article to point out that Roberts standard isn't in fact any standard at all.

Posted by: Daniel | Nov 23, 2009 6:26:45 PM

The Atkins decision, on the other hand, “has spawned extensive, intricate and bitterly contested litigation,” Carol S. Steiker and Jordan M. Steiker wrote in the DePaul Law Review last year....

... and therefore should be overruled, because the Court got it right the first time in Penry.

Posted by: Kent Scheidegger | Nov 23, 2009 6:51:09 PM

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