By Andrew Cohen | The Marshall Project | 2 March 2015
It has been exactly ten years since the Supreme Court issued its landmark ruling in Roper v. Simmons, a 5-4 decision that declared that the Eighth Amendment precluded the imposition of the death penalty for murderers who committed their capital crimes before they turned 18. Predictably, the justices were sharply divided about this important and new national restriction on capital punishment in America. Justice Anthony Kennedy, who wrote the majority opinion, cited the “susceptibility” of juveniles to “immature and irresponsible behavior.” Justice Antonin Scalia, in typically blunt tones, said in the leading dissent that the ruling made a “mockery” of the Court’s capital precedent.
Few people in U.S. know more about the Roper decision than Victor Streib, a professor of law at Ohio Northern University, who has devoted decades of his professional life to the study of capital punishment. Streib’s work was cited in Roper by Justice Kennedy, and over the past ten years, the academic has been no less diligent in watching the legacy of this important case develop, both at the Supreme Court and among lower federal and state courts.
Your groundbreaking work on juveniles and the death penalty was cited by Justice Anthony Kennedy in his majority opinion in Roper. What did those studies show, and how was your work used by the justices to craft and support their ruling?
There were two things that the Court seemed to be interested in. One was what evidence there was that the nation had changed its mind about what is “cruel and unusual.” They wanted to see how many state statutes had changed over a period of time, and my work revealed that. They also wanted to know whether juries were still sentencing juveniles to death where the law would allow it, and my work showed that the number had gone way down. And what are other nations doing on this issue? We were able to find that no other nation in the world allowed the death penalty for juveniles except for the United States.
Beyond that, you got into questions of: Do juveniles have the same culpability generally — are they the same as an adult when they commit a murder? And most of that really came down to common sense. Certainly anyone who has children or has been around children knows that teenagers do not behave like adults. By this time, in 2005, we had amassed enough professional evidence, psychiatric studies and things like that, showing us what part of the juvenile brain is working, doing this and doing that, and finding some kind of medical evidence that yes, in fact, juveniles are impulsive and they don’t plan and they don’t realize what is going to happen.
What was your reaction when the ruling came out? Did you make any predictions ten years ago about how Roper would be received and what would come of it?
It was a very pleasant surprise. I thought it was a close call. What we had been doing was trying to get the states, one by one, to change their statutes — to put a minimum age of 18 in. We were getting two or three a year to do it, and we were making pretty good progress. But it was still only 50-50 of those death penalty states. So I thought we didn’t have anything like a majority or an overwhelming case, and I was afraid the Court would say that it wasn’t quite clear that the standard for “cruel and unusual” had evolved enough. But they decided that it had, and I was glad to be wrong on that.
But because most states had either done away with the death penalty for juveniles or were considering it, I found that when I testified before state legislatures, there was a lot of sympathy for that argument. There were state politicians telling me that even though they don’t think juveniles should be executed, taking an anti-death penalty stand of any kind was politically difficult. So I think most people were relieved it came out this way.
Is the Roper decision responsible for the changing perceptions about juvenile justice? The concept that the juvenile mind is not fully developed and cannot be as culpable as adults?
I think in a way, Roper is the latest, most recent example of this issue. Over 100 years ago, we started the so-called juvenile justice system for underage offenders. The difficulty came when we had very serious crimes, like homicide, and we decided that the juvenile courts are really not a good place to try those kinds of crimes.
So we put those cases in adult court, and the problem is that adult courts are set up to handle very serious crimes but not to distinguish between the juvenile mind and the adult mind, and what juveniles need and what adults don’t. The problem is not that we realize that juveniles don’t think in the same way that adults do, but we are trying to figure out how to get that idea into adult courts where serious crimes are resolved.
What is the relationship between Roper and Miller v. Alabama, the 2012 case in which the Court struck down mandatory life sentences for juveniles?
The connection between Roper and Miller v. Alabama surprises me in a way. Before, we had kept the death penalty jurisprudence confined to death-penalty cases, and I didn’t expect to see it jump over as strongly as it did to a non-death penalty case. But what they held was the same sort of thing — can [someone be deterred from committing future crimes, are they as] guilty, do they deserve a punishment?
You know as much about death penalty jurisprudence as anyone else. What’s capital punishment in America likely to look like in 2025?
I would like to think that we would get more decent, more merciful. That we would do away with the harsher punishments. But as several of the justices have reminded us, if our standard of decency can become more merciful, it also could go the other way and become harsher. We could decide that capital punishment for certain crimes — rape, etc. — has become okay, just as we could decide that in other cases, it is not okay.
This interview has been edited for length and clarity.