Death by Numbers: Why Evolving Standards Compel Extending Roper’s Categorical Ban Against Executing Juveniles From 18 to 21

Abstract

Nearly fifteen years ago, the Supreme Court held in Roper v. Simmons that the Eighth Amendment prohibits the execution of people who were under 18 at the time of their offenses. The Court justified the line it drew based on legislative enactments, jury verdicts, and neuroscience. In the intervening years, however, much has changed in juvenile sentencing jurisprudence, the legal treatment of young people, and neuroscience. These changes beg the question: Why 18? Is the bright-line rule that the Court announced in Roper still constitutionally valid or do the changes since 2005 now point to a new cutoff at 21?

To answer those questions, this Article considers post-Roper developments in the relevant domains to make the case that the 18-year-old constitutional line should be extended to age 21. It does so by applying the Supreme Court’s evolving-standards-of-decency methodology. Specifically, the Article examines all death sentences and executions imposed in the United States post-Roper and looks at the current state of neuroscientific research that the Court found compelling when it decided Roper.

Two predominant trends emerge. First, there is a national consensus against executing people under 21. This consensus comports with what new developments in neuroscience have made clear: people under 21 have brains that look and behave like the brains of younger teenagers, not like adult brains. Second, young people of color are disproportionately sentenced to die — even more so than adult capital defendants. The role of race is amplified when the victim is white. These trends confirm that the logic that compelled the Court to ban executions of people under 18 extends to people under 21.

Keywords: Death Penalty, Youth, Capital Punishment, Adolescence