The law is made up of rules and standards.
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.”
The lawyers in the two cases the court heard — one involving a rape committed by a 13-year-old, the other an armed burglary by a 16-year-old — had at least two answers to the chief justice’s proposal. One was that it is too soon to tell at sentencing whether unformed teenagers will later change for the better. The other was that states already take age into account but do so in very different ways.
According to a report from researchers at Florida State University, just two states, Florida and Louisiana, have imprisoned 94 of the nation’s roughly 110 juvenile offenders sentenced to die in prison for crimes in which no one was killed.
But there is a third possible retort, one that draws on the Supreme Court’s 2002 decision in Atkins v. Virginia barring the execution of the mentally retarded. That sounds like a rule, in that it made an entire class of people categorically ineligible for the death penalty. But it turns out to be a standard.
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.
The Supreme Court in Atkins said mental retardation requires proof of three things: “subaverage intellectual functioning,” meaning low IQ scores; a lack of fundamental social and practical skills; and that both conditions were present before age 18. The court said IQ scores under “approximately 70” typically indicate retardation.
How has this standard been applied in practice?
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.”
Yet there is an obvious appeal to the chief justice’s suggestion.
“If you go down on a case-by-case basis, there are no line-drawing problems,” he said at the arguments this month. “You just simply say age has to be considered as a matter of the Eighth Amendment.”
Justice Antonin Scalia objected. He had dissented in Atkins and Roper, and he was not brimming with sympathy for the two juvenile offenders in the cases before the court.
His problem with Chief Justice Roberts’s proposal was grounded in a preference for easily applied binary rules over mushy standards that give judges too much power.
“And then we apply a totality-of-the-circumstances test,” Justice Scalia said dismissively of the chief justice’s proposal, “which means, ‘whatever seems like a good idea.’ ”