Thompson v. Oklahoma
487 U.S. 815 (1988)

Annotate this Case

U.S. Supreme Court

Thompson v. Oklahoma, 487 U.S. 815 (1988)

Thompson v. Oklahoma

No. 86-6169

Argued November 9, 1987

Decided June 29, 1988

487 U.S. 815

CERTIORARI TO THE COURT OF CRIMINAL APPEALS

OF OKLAHOMA

Syllabus

Petitioner, when he was 15 years old, actively participated in a brutal murder. Because petitioner was a "child" as a matter of Oklahoma law, the District Attorney filed a statutory petition seeking to have him tried as an adult, which the trial court granted. He was then convicted and sentenced to death, and the Court of Criminal Appeals of Oklahoma affirmed.

Held: The judgment is vacated and the case is remanded.

724 P.2d 780, vacated and remanded.

JUSTICE STEVENS, joined by JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN, concluded that the "cruel and unusual punishment" prohibition of the Eighth Amendment, made applicable to the States by the Fourteenth Amendment, prohibits the execution of a person who was under 16 years of age at the time of his or her offense. Pp. 487 U. S. 821-838.

(a) In determining whether the categorical Eighth Amendment prohibition applies, this Court must be guided by the "evolving standards of decency that mark the progress of a maturing society," Trop v. Dulles,356 U. S. 86, 356 U. S. 101, and, in so doing, must review relevant legislative enactments and jury determinations and consider the reasons why a civilized society may accept or reject the death penalty for a person less than 16 years old at the time of the crime. Pp. 487 U. S. 821-823.

(b) Relevant state statutes -- particularly those of the 18 States that have expressly considered the question of a minimum age for imposition of the death penalty, and have uniformly required that the defendant have attained at least the age of 16 at the time of the capital offense -- support the conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense. That conclusion is also consistent with the views expressed by respected professional organizations, by other nations that share the Anglo-American heritage, and by the leading members of the Western European Community. Pp. 487 U. S. 823-831.

(c) The behavior of juries -- as evidenced by statistics demonstrating that, although between 18 and 20 persons under the age of 16 were executed during the first half of the 20th century, no such execution has taken place since 1948, despite the fact that thousands of murder cases

Page 487 U. S. 816

were tried during that period, and that only 5 of the 1,393 persons sentenced to death for willful homicide during the years 1982 through 1986 were less than 16 at the time of the offense -- leads to the unambiguous conclusion that the imposition of the death penalty on a 15-year-old offender is now generally abhorrent to the conscience of the community. Pp. 487 U. S. 831-833.

(d) The juvenile's reduced culpability, and the fact that the application of the death penalty to this class of offenders does not measurably contribute to the essential purposes underlying the penalty, also support the conclusion that the imposition of the penalty on persons under the age of 16 constitutes unconstitutional punishment. This Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult, since inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct, while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. Cf. Bellotti v. Baird,443 U. S. 622; Eddings v. Oklahoma,455 U. S. 104. Given this lesser culpability, as well as the teenager's capacity for growth and society's fiduciary obligations to its children, the retributive purpose underlying the death penalty is simply inapplicable to the execution of a 15-year-old offender. Moreover, the deterrence rationale for the penalty is equally unacceptable with respect to such offenders, since statistics demonstrate that the vast majority of persons arrested for willful homicide are over 16 at the time of the offense, since the likelihood that the teenage offender has made the kind of cold-blooded, cost-benefit analysis that attaches any weight to the possibility of execution is virtually nonexistent, and since it is fanciful to believe that a 15-year-old would be deterred by the knowledge that a small number of persons his age have been executed during the 20th century. Pp. 487 U. S. 833-838.

JUSTICE O'CONNOR concluded that:

1. Although a national consensus forbidding the execution of any person for a crime committed before the age of 16 very likely does exist, this conclusion should not unnecessarily be adopted as a matter of constitutional law without better evidence than is before the Court. The fact that the 18 legislatures that have expressly considered the question have set the minimum age for capital punishment at 16 or above, coupled with the fact that 14 other States have rejected capital punishment completely, suggests the existence of a consensus. However, the Federal Government and 19 States have authorized capital punishment without setting any minimum age, and have also provided for some 15-year-olds to be prosecuted as adults. These laws appear to render 15-year-olds death eligible, and thus pose a real obstacle to finding a consensus.

Page 487 U. S. 817

Moreover, although the execution and sentencing statistics before the Court support the inference of a consensus, they are not dispositive, because they do not indicate how many juries have been asked to impose the death penalty on juvenile offenders or how many times prosecutors have exercised their discretion to refrain from seeking the penalty. Furthermore, granting the premise that adolescents are generally less blameworthy than adults who commit similar crimes, it does not necessarily follow that all 15-year-olds are incapable of the moral culpability that would justify the imposition of capital punishment. Nor is there evidence that 15-year-olds as a class are inherently incapable of being deterred from major crimes by the prospect of the death penalty. Thus, there is the danger that any inference of a societal consensus drawn from the evidence in this case might be mistaken. Rather than rely on its inevitably subjective judgment about the best age at which to draw a line forbidding capital punishment, this Court should if possible await the express judgments of additional legislatures. Pp. 487 U. S. 849-855.

2. Petitioner's sentence must be set aside on the ground that -- whereas the Eighth Amendment requires special care and deliberation in decisions that may lead to the imposition of the death penalty -- there is considerable risk that, in enacting a statute authorizing capital punishment for murder without setting any minimum age, and in separately providing that juvenile defendants may be treated as adults in some circumstances, the Oklahoma Legislature either did not realize that its actions would effectively render 15-year-olds death-eligible, or did not give the question the serious consideration that would have been reflected in the explicit choice of a particular minimum age. Because the available evidence suggests a national consensus forbidding the imposition of capital punishment for crimes committed before the age of 16, petitioner and others whose crimes were committed before that age may not be executed pursuant to a capital punishment statute that specifies no minimum age. Pp. 487 U. S. 856-859.

STEVENS, J., announced the judgment of the Court and delivered an opinion in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 487 U. S. 848. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., and WHITE, J., joined, post, p. 487 U. S. 859. KENNEDY, J., took no part in the consideration or decision of the case.

Page 487 U. S. 818

JUSTICE STEVENS announced the judgment of the Court and delivered an opinion in which JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join.

Petitioner was convicted of first-degree murder and sentenced to death. The principal question presented is whether the execution of that sentence would violate the constitutional prohibition against the infliction of "cruel and unusual punishments" [Footnote 1]

Page 487 U. S. 819

because petitioner was only 15 years old at the time of his offense.

I

Because there is no claim that the punishment would be excessive if the crime had been committed by an adult, only a brief statement of facts is necessary. In concert with three older persons, petitioner actively participated in the brutal murder of his former brother-in-law in the early morning hours of January 23, 1983. The evidence disclosed that the victim had been shot twice, and that his throat, chest, and abdomen had been cut. He also had multiple bruises and a broken leg. His body had been chained to a concrete block and thrown into a river, where it remained for almost four weeks. Each of the four participants was tried separately and each was sentenced to death.

Because petitioner was a "child" as a matter of Oklahoma law, [Footnote 2] the District Attorney filed a statutory petition, see Okla.Stat., Tit. 10, § 1112(b) (1981), seeking an order finding "that said child is competent and had the mental capacity to know and appreciate the wrongfulness of his [conduct]." App. 4. After a hearing, the trial court concluded

"that there are virtually no reasonable prospects for rehabilitation of William Wayne Thompson within the juvenile system and

Page 487 U. S. 820

that William Wayne Thompson should be held accountable for his acts as if he were an adult, and should be certified to stand trial as an adult."

Id. at 8 (emphasis in original).

At the guilt phase of petitioner's trial, the prosecutor introduced three color photographs showing the condition of the victim's body when it was removed from the river. Although the Court of Criminal Appeals held that the use of two of those photographs was error, [Footnote 3] it concluded that the error was harmless, because the evidence of petitioner's guilt was so convincing. However, the prosecutor had also used the photographs in his closing argument during the penalty phase. The Court of Criminal Appeals did not consider whether this display was proper.

At the penalty phase of the trial, the prosecutor asked the jury to find two aggravating circumstances: that the murder was especially heinous, atrocious, or cruel; and that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The jury found the first, but not the second, and fixed petitioner's punishment at death.

The Court of Criminal Appeals affirmed the conviction and sentence, 724 P.2d 780 (1986), citing its earlier opinion in Eddings v. State, 616 P.2d 1159 (1980), rev'd on other grounds,455 U. S. 104 (1982), for the proposition that, "once a minor is certified to stand trial as an adult, he may also, without violating the Constitution, be punished as an adult." 724 P.2d at 784. We granted certiorari to consider whether a sentence of death is cruel and unusual punishment for a crime committed by a 15-year-old child, as well as whether

Page 487 U. S. 821

photographic evidence that a state court deems erroneously admitted but harmless at the guilt phase nevertheless violates a capital defendant's constitutional rights by virtue of its being considered at the penalty phase. 479 U.S. 1084 (1987).

II

The authors of the Eighth Amendment drafted a categorical prohibition against the infliction of cruel and unusual punishments, but they made no attempt to define the contours of that category. They delegated that task to future generations of judges, who have been guided by the "evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles,356 U. S. 86, 356 U. S. 101 (1958) (plurality opinion) (Warren, C.J.). [Footnote 4] In performing that task, the

Page 487 U. S. 822

Court has reviewed the work product of state legislatures and sentencing juries, [Footnote 5] and has carefully considered the reasons why a civilized society may accept or reject the death penalty in certain types of cases. Thus, in confronting the question whether the youth of the defendant -- more specifically, the fact that he was less than 16 years old at the time of his offense -- is a sufficient reason for denying the State the power to sentence him to death, we first review relevant legislative enactments, [Footnote 6] then refer to jury determinations, [Footnote 7] and

Page 487 U. S. 823

finally explain why these indicators of contemporary standards of decency confirm our judgment that such a young person is not capable of acting with the degree of culpability that can justify the ultimate penalty. [Footnote 8]

III

Justice Powell has repeatedly reminded us of the importance of

"the experience of mankind, as well as the long history of our law, recognizing that there are differences which must be accommodated in determining the rights and duties of children as compared with those of adults. Examples of this distinction abound in our law: in contracts, in torts, in criminal law and procedure, in criminal sanctions and rehabilitation, and in the right to vote and to hold office."

Goss v. Lopez,419 U. S. 565, 419 U. S. 590-591 (1975) (dissenting opinion). [Footnote 9] Oklahoma recognizes this basic distinction in a number of its statutes. Thus, a minor is not eligible to vote, [Footnote 10] to sit on a jury, [Footnote 11] to marry without parental consent, [Footnote 12] or to purchase alcohol [Footnote 13] or cigarettes. [Footnote 14] Like all other States, Oklahoma

Page 487 U. S. 824

has developed a juvenile justice system in which most offenders under the age of 18 are not held criminally responsible. Its statutes do provide, however, that a 16- or 17-year-old charged with murder and other serious felonies shall be considered an adult. [Footnote 15] Other than the special certification procedure that was used to authorize petitioner's trial in this case "as an adult," apparently there are no Oklahoma statutes, either civil or criminal, that treat a person under 16 years of age as anything but a "child."

The line between childhood and adulthood is drawn in different ways by various States. There is, however, complete or near unanimity among all 50 States and the District of Columbia [Footnote 16] in treating a person under 16 as a minor for several important purposes. In no State may a 15-year-old vote or serve on a jury. [Footnote 17] Further, in all but one State, a 15-year-old may not drive without parental consent, [Footnote 18] and in all but four States, a 15-year-old may not marry without parental consent. [Footnote 19] Additionally, in those States that have legislated on the subject, no one under age 16 may purchase pornographic materials (50 States), [Footnote 20] and in most States that have some form of legalized gambling, minors are not permitted to participate without parental consent (42 States). [Footnote 21] Most relevant, however, is the fact that all States have enacted legislation designating the maximum age for juvenile court jurisdiction at no less than 16. [Footnote 22] All of this legislation is consistent

Page 487 U. S. 825

with the experience of mankind, as well as the long history of our law, that the normal 15-year-old is not prepared to assume the full responsibilities of an adult. [Footnote 23]

Page 487 U. S. 826

Most state legislatures have not expressly confronted the question of establishing a minimum age for imposition of the death penalty. [Footnote 24] In 14 States, capital punishment is not authorized at all, [Footnote 25] and in 19 others, capital punishment is authorized,

Page 487 U. S. 827

but no minimum age is expressly stated in the death penalty statute. [Footnote 26] One might argue on the basis of this body of legislation that there is no chronological age at which the

Page 487 U. S. 828

imposition of the death penalty is unconstitutional, and that our current standards of decency would still tolerate the execution of 10-year-old children. [Footnote 27] We think it self-evident that such an argument is unacceptable; indeed, no such argument has been advanced in this case. [Footnote 28] If, therefore, we accept the

Page 487 U. S. 829

premise that some offenders are simply too young to be put to death, it is reasonable to put this group of statutes to one side because they do not focus on the question of where the chronological age line should be drawn. [Footnote 29] When we confine our attention to the 18 States that have expressly established a minimum age in their death penalty statutes, we find that all of them require that the defendant have attained at least the age of 16 at the time of the capital offense. [Footnote 30]

Page 487 U. S. 830

The conclusion that it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community. [Footnote 31] Thus, the American Bar Association [Footnote 32] and the American Law Institute [Footnote 33] have formally expressed their opposition to the death penalty for juveniles. Although the death penalty has not been entirely abolished in the United Kingdom or New Zealand (it has been abolished in Australia, except in the State of New South Wales, where it is available

Page 487 U. S. 831

for treason and piracy), in neither of those countries may a juvenile be executed. The death penalty has been abolished in West Germany, France, Portugal, The Netherlands, and all of the Scandinavian countries, and is available only for exceptional crimes such as treason in Canada, Italy, Spain, and Switzerland. Juvenile executions are also prohibited in the Soviet Union. [Footnote 34]

IV

The second societal factor the Court has examined in determining the acceptability of capital punishment to the American sensibility is the behavior of juries. In fact, the infrequent and haphazard handing out of death sentences by capital juries was a prime factor underlying our judgment in Furman v. Georgia,408 U. S. 238 (1972), that the death penalty, as then administered in unguided fashion, was unconstitutional. [Footnote 35]

Page 487 U. S. 832

While it is not known precisely how many persons have been executed during the 20th century for crimes committed under the age of 16, a scholar has recently compiled a table revealing this number to be between 18 and 20. [Footnote 36] All of these occurred during the first half of the century, with the last such execution taking place apparently in 1948. [Footnote 37] In the following year, this Court observed that this "whole country has traveled far from the period in which the death sentence was an automatic and commonplace result of convictions. . . ." Williams v. New York,337 U. S. 241, 337 U. S. 247 (1949). The road we have traveled during the past four decades -- in which thousands of juries have tried murder cases -- leads to the unambiguous conclusion that the imposition of the death penalty on a 15-year-old offender is now generally abhorrent to the conscience of the community.

Department of Justice statistics indicate that, during the years 1982 through 1986, an average of over 16,000 persons were arrested for willful criminal homicide (murder and non-negligent manslaughter) each year. Of that group of 82,094 persons, 1,393 were sentenced to death. Only 5 of them, including the petitioner in this case, were less than 16 years old

Page 487 U. S. 833

at the time of the offense. [Footnote 38] Statistics of this kind can, of course, be interpreted in different ways, [Footnote 39] but they do suggest that these five young offenders have received sentences that are "cruel and unusual in the same way that being struck by lightning is cruel and unusual." Furman v. Georgia, 408 U.S. at 408 U. S. 309 (Stewart, J., concurring).

V

"Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty"

on one such as petitioner who committed a heinous murder when he was only 15 years old. Enmund v. Florida,458 U. S. 782, 458 U. S. 797 (1982). [Footnote 40] In making that judgment, we first ask whether the juvenile's culpability should be measured by the same standard as that of an adult, and then consider whether the application of the death penalty to this class of offenders "measurably contributes" to the social purposes that are served by the death penalty. Id. at 458 U. S. 798.

Page 487 U. S. 834

It is generally agreed "that punishment should be directly related to the personal culpability of the criminal defendant." California v. Brown,479 U. S. 538, 479 U. S. 545 (1987) (O'CONNOR, J., concurring). There is also broad agreement on the proposition that adolescents, as a class, are less mature and responsible than adults. We stressed this difference in explaining the importance of treating the defendant's youth as a mitigating factor in capital cases:

"But youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults. Particularly 'during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment' expected of adults. Bellotti v. Baird,443 U. S. 622, 443 U. S. 635 (1979)."

Eddings v. Oklahoma, 455 U.S. at 455 U. S. 115-116 (footnotes omitted).

To add further emphasis to the special mitigating force of youth, Justice Powell quoted the following passage from the 1978 Report of the Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders:

"'[A]dolescents, particularly in the early and middle teen years, are more vulnerable, more impulsive, and less self-disciplined than adults. Crimes committed by youths may be just as harmful to victims as those committed by older persons, but they deserve less punishment, because adolescents may have less capacity to control their conduct, and to think in long-range terms, than adults. Moreover, youth crime as such is not exclusively the offender's fault; offenses by the young also represent a failure of family, school, and the social system, which share responsibility for the development of America's youth.'"

455 U.S. at 455 U. S. 115, n. 11.

Page 487 U. S. 835

Thus, the Court has already endorsed the proposition that less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. [Footnote 41] The basis for this conclusion is too obvious to require extended explanation. [Footnote 42] Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct, while, at the same time, he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult. The reasons why juveniles are not trusted with the privileges and responsibilities of an adult also explain why their irresponsible conduct is not as morally reprehensible as that of an adult. [Footnote 43]

Page 487 U. S. 836

"The death penalty is said to serve two principal social purposes: retribution and deterrence of capital crimes by prospective offenders."

Gregg v. Georgia,428 U. S. 153, 428 U. S. 183 (1976) (joint opinion of Stewart, Powell, and STEVENS, JJ.). In Gregg, we concluded that, as "an expression of society's moral outrage at particularly offensive conduct," retribution was not "inconsistent with our respect for the dignity of men." Ibid. [Footnote 44] Given the lesser culpability of the juvenile

Page 487 U. S. 837

offender, the teenager's capacity for growth, and society's fiduciary obligations to its children, this conclusion is simply inapplicable to the execution of a 15-year-old offender.

For such a young offender, the deterrence rationale is equally unacceptable. [Footnote 45] The Department of Justice statistics indicate that about 98 percent of the arrests for willful homicide involved persons who were over 16 at the time of the offense. [Footnote 46] Thus, excluding younger persons from the class that is eligible for the death penalty will not diminish the deterrent value of capital punishment for the vast majority of potential offenders. And even with respect to those under 16 years of age, it is obvious that the potential deterrent value of the death sentence is insignificant for two reasons. The likelihood that the teenage offender has made the kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote as to be virtually nonexistent.

Page 487 U. S. 838

And, even if one posits such a cold-blooded calculation by a 15-year-old, it is fanciful to believe that he would be deterred by the knowledge that a small number of persons his age have been executed during the 20th century. In short, we are not persuaded that the imposition of the death penalty for offenses committed by persons under 16 years of age has made, or can be expected to make, any measurable contribution to the goals that capital punishment is intended to achieve. It is, therefore, "nothing more than the purposeless and needless imposition of pain and suffering," Coker v. Georgia, 433 U.S. at 433 U. S. 592, and thus an unconstitutional punishment. [Footnote 47]

VI

Petitioner's counsel and various amici curiae have asked us to "draw a line" that would prohibit the execution of any person who was under the age of 18 at the time of the offense. Our task today, however, is to decide the case before us; we do so by concluding that the Eighth and Fourteenth Amendments prohibit the execution of a person who was under 16 years of age at the time of his or her offense. [Footnote 48]

The judgment of the Court of Criminal Appeals is vacated, and the case is remanded with instructions to enter an appropriate order vacating petitioner's death sentence.

It is so ordered.

JUSTICE KENNEDY took no part in the consideration or decision of this case.

Page 487 U. S. 839

[Footnote 1]

The Eighth Amendment provides:

"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

U.S.Const., Amdt. 8. This proscription must be observed by the States as well as the Federal Government. See, e.g., Robinson v. California,370 U. S. 660 (1962).

[Footnote 2]

Oklahoma Stat., Tit. 10, § 1101(1) (Supp.1987) provides:

"'Child' means any person under eighteen (18) years of age, except for any person sixteen (16) or seventeen (17) years of age who is charged with murder, kidnapping for purposes of extortion, robbery with a dangerous weapon, rape in the first degree, use of a firearm or other offensive weapon while committing a felony, arson in the first degree, burglary with explosives, shooting with intent to kill, manslaughter in the first degree, or nonconsensual sodomy."

[Footnote 3]

"The other two color photographs . . . were gruesome. Admitting them into evidence served no purpose other than to inflame the jury. We do not understand why an experienced prosecutor would risk reversal of the whole case by introducing such ghastly, color photographs with so little probative value. We fail to see how they could possibly assist the jury in the determination of defendant's guilt. The trial court's admission of these two photographs was error."

724 P.2d 780, 782-783 (Okl.Crim.App.1986).

[Footnote 4]

That Eighth Amendment jurisprudence must reflect "evolving standards of decency" was settled early this century in the case of Weems v. United States,217 U. S. 349 (1910). The Court held that a sentence of 15 years of hard, enchained labor, plus deprivation of various civil rights and perpetual state surveillance, constituted "cruel and unusual punishment" under the Bill of Rights of the Philippines (then under United States control). Premising its opinion on the synonymity of the Philippine and United States "cruel and unusual punishment" clauses, the Court wrote:

"Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than the mischief which gives it birth."

"* * * *"

"The [cruel and unusual punishment clause], in the opinion of the learned commentators, may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice."

Id. at 217 U. S. 373-374, 378. See also Ollman v. Evans, 242 U.S.App.D.C. 301, 326-327, 750 F.2d 970, 995-996 (1984) (en banc) (Bork, J., concurring):

"Judges given stewardship of a constitutional provision . . . whose core is known, but whose outer reach and contours are ill-defined, face the never-ending task of discerning the meaning of the provision from one case to the next. There would be little need for judges -- and certainly no office for a philosophy of judging -- if the boundaries of every constitutional provision were self-evident. They are not. . . . [I]t is the task of the judge in this generation to discern how the framers' values, defined in the context of the world they knew, apply to the world we know. The world changes in which unchanging values find their application. . . ."

"* * * *"

"We must never hesitate to apply old values to new circumstances. . . . The important thing, the ultimate consideration, is the constitutional freedom that is given into our keeping. A judge who refuses to see new threats to an established constitutional value, and hence provides a crabbed interpretation that robs a provision of its full, fair and reasonable meaning, fails in his judicial duty."

[Footnote 5]

See, e.g., Woodson v. North Carolina,428 U. S. 280, 428 U. S. 293 (1976) (plurality opinion) (Stewart, Powell, and STEVENS, JJ.); Coker v. Georgia,433 U. S. 584, 433 U. S. 593-597 (1977) (plurality opinion) (WHITE, J.); Enmund v. Florida,458 U. S. 782, 458 U. S. 789-796 (1982); id. at 458 U. S. 814 (legislative and jury statistics important in Eighth Amendment adjudication) (O'CONNOR, J., dissenting).

[Footnote 6]

See Furman v. Georgia,408 U. S. 238, 408 U. S. 277-279 (1972) (Court must look to objective signs of how today's society views a particular punishment) (BRENNAN, J., concurring); Enmund v. Florida, 458 U.S. at 458 U. S. 789-793.

[Footnote 7]

Our capital punishment jurisprudence has consistently recognized that contemporary standards, as reflected by the actions of legislatures and juries, provide an important measure of whether the death penalty is "cruel and unusual." Part of the rationale for this index of constitutional value lies in the very language of the construed clause: whether an action is "unusual" depends, in common usage, upon the frequency of its occurrence or the magnitude of its acceptance.

The focus on the acceptability and regularity of the death penalty's imposition in certain kinds of cases -- that is, whether imposing the sanction in such cases comports with contemporary standards of decency as reflected by legislative enactments and jury sentences -- is connected to the insistence that statutes permitting its imposition channel the sentencing process toward nonarbitrary results. For both a statutory scheme that fails to guide jury discretion in a meaningful way, and a pattern of legislative enactments or jury sentences revealing a lack of interest on the part of the public in sentencing certain people to death, indicate that contemporary morality is not really ready to permit the regular imposition of the harshest of sanctions in such cases.

[Footnote 8]

Thus, in explaining our conclusion that the death penalty may not be imposed for the crime of raping an adult woman, JUSTICE WHITE stated:

"[T]he Constitution contemplates that, in the end, our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment."

Coker v. Georgia, 433 U.S. at 433 U. S. 597.

[Footnote 9]

See also New Jersey v. T.L.O.,469 U. S. 325, 469 U. S. 350, n. 2 (1985) (Powell, J., concurring); Burger v. Kemp,483 U. S. 776 (1987) (Powell, J., dissenting).

[Footnote 10]

Okla.Const., Art. 3, § 1. Okla.Stat., Tit. 38, § 28 (1981) and Okla. Const., Art. 3, § 1 . Okla. Stat., Tit. 43, § 3 (1981).

[Footnote 11]

Okla.Stat., Tit. 38, § 28 (1981), and Okla.Const., Art. 3, § 1.

[Footnote 12]

Okla.Stat., Tit. 43, § 3 (1981).

[Footnote 13]

Okla.Stat., Tit. 21, § 1215 (1981).

[Footnote 14]

Okla.Stat., Tit. 21, § 1241 (Supp.1987). Additionally, minors may not patronize bingo parlors or pool halls unless accompanied by an adult, Okla.Stat., Tit. 21, §§ 995.13, 1103 (1981), pawn property, Okla.Stat., Tit. 59, § 1511(C)(1) (1981), consent to services by health professionals for most medical care, unless married or otherwise emancipated, Okla.Stat., Tit. 63, § 2602 (1981), § 2601(a) (Supp.1987), or operate or work at a shooting gallery, Okla.Stat., Tit. 63, § 703 (1984), and may disaffirm any contract, except for "necessaries," Okla.Stat., Tit. 15, §§ 19, 20 (1981).

[Footnote 15]

Seen 2, supra; cf. Craig v. Boren,429 U. S. 190, 429 U. S. 197 (1976).

[Footnote 16]

Henceforth, the opinion will refer to the 50 States and the District of Columbia as "States," for sake of simplicity.

[Footnote 17]

See Appendices A and B, infra.SeeAppendix C, infra.

[Footnote 18]

SeeAppendix C,infra.

[Footnote 19]

SeeAppendix D, infra.

[Footnote 20]

SeeAppendix E, infra.

[Footnote 21]

SeeAppendix F, infra.

[Footnote 22]

S. Davis, Rights of Juveniles: The Juvenile Justice System, Appendix B (1987). Thus, every State has adopted "a rebuttable presumption" that a person under 16 "is not mature and responsible enough to be punished as an adult," no matter how minor the offense may be. Post at 487 U. S. 859 (dissenting opinion).

[Footnote 23]

The law must often adjust the manner in which it affords rights to those whose status renders them unable to exercise choice freely and rationally. Children, the insane, and those who are irreversibly ill with loss of brain function, for instance, all retain "rights," to be sure, but often such rights are only meaningful as they are exercised by agents acting with the best interests of their principals in mind. See Garvey, Freedom and Choice in Constitutional Law, 94 Harv.L.Rev. 1756 (1981). It is in this way that paternalism bears a beneficent face, paternalism in the sense of a caring, nurturing parent making decisions on behalf of a child who is not quite ready to take on the fully rational and considered task of shaping his or her own life. The assemblage of statutes in the text above, from both Oklahoma and other States, reflects this basic assumption that our society makes about children as a class; we assume that they do not yet act as adults do, and thus we act in their interest by restricting certain choices that we feel they are not yet ready to make with full benefit of the costs and benefits attending such decisions. It would be ironic if these assumptions that we so readily make about children as a class -- about their inherent difference from adults in their capacity as agents, as choosers, as shapers of their own lives -- were suddenly unavailable in determining whether it is cruel and unusual to treat children the same as adults for purposes of inflicting capital punishment. Thus, informing the judgment of the Court today is the virtue of consistency, for the very assumptions we make about our children when we legislate on their behalf tells us that it is likely cruel, and certainly unusual, to impose on a child a punishment that takes as its predicate the existence of a fully rational, choosing agent, who may be deterred by the harshest of sanctions and toward whom society may legitimately take a retributive stance. As we have observed,

"Children, by definition, are not assumed to have the capacity to take care of themselves. They are assumed to be subject to the control of their parents, and if parental control falters, the State must play its part as parens patriae."

Schall v. Martin,467 U. S. 253, 467 U. S. 265 (1984); see also May v. Anderson,345 U. S. 528, 345 U. S. 536 (1953) (Frankfurter, J., concurring) ("Children have a very special place in life which law should reflect. Legal theories . . . lead to fallacious reasoning if uncritically transferred to determination of a State's duty towards children"); Ginsberg v. New York,390 U. S. 629, 390 U. S. 649-650 (1968) (Stewart, J., concurring in result) ("[A]t least in some precisely delineated areas, a child . . . is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees. It is only upon such a premise . . . that a State may deprive children of other rights -- the right to marry, for example, or the right to vote -- deprivations that would be constitutionally intolerable for adults"); Parham v. J. R.,442 U. S. 584, 442 U. S. 603 (1979) ("Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions").

[Footnote 24]

Almost every State, and the Federal Government, have set a minimum age at which juveniles accused of committing serious crimes can be waived from juvenile court into criminal court. See Davis, supra, n. 22; 18 U.S.C. § 5032 (1982 ed., Supp IV). The dissent's focus on the presence of these waiver ages in jurisdictions that retain the death penalty, but that have not expressly set a minimum age for the death sentence, see post at 487 U. S. 867-868, distorts what is truly at issue in this case. Consider the following example: the States of Michigan, Oregon, and Virginia have all determined that a 15-year-old may be waived from juvenile to criminal court when charged with first-degree murder. See Mich.Comp.Laws § 712A.4(1) (1979); Ore.Rev.Stat. §§ 419.533(1)(a), (1)(b), (3) (1987); Va.Code § 16.1-269(A) (1988). However, in Michigan, that 15-year-old may not be executed -- because the State has abolished the death penalty -- and, in Oregon, that 15-year-old may not be executed -- because the State has expressly set a minimum age of 18 for executions -- but, in Virginia, that 15-year-old may be executed -- because the State has a death penalty and has not expressly addressed the issue of minimum age for execution. That these three States have all set a 15-year-old waiver floor for first-degree murder tells us that the States consider 15-year-olds to be old enough to be tried in criminal court for serious crimes (or too old to be dealt with effectively in juvenile court), but tells us nothing about the judgment these States have made regarding the appropriate punishment for such youthful offenders. As a matter of fact, many States in the Union have waiver ages below 16, including many of the States that have either abolished the death penalty or that have set an express minimum age for the death penalty at 16 or higher. See Davis, supra, n. 22. In sum, we believe that the more appropriate measures for determining how the States view the issue of minimum age for the death penalty are those discussed in the text and in n 29, infra.

[Footnote 25]

Alaska (Territory of Alaska, Session Laws, 1957, ch. 132, 23d Sess., an Act abolishing the death penalty for the commission of any crime; see Alaska Stat.Ann. § 12.55.015 (1987), "Authorized sentences" do not include the death penalty; § 12.55.125, "Sentences of imprisonment for felonies" do not include the death penalty); District of Columbia (United States v. Lee, 160 U.S.App.D.C. 118, 122-123, 489 F.2d 1242, 1246-1247 (1973), death penalty unconstitutional in light of Furman v. Georgia,408 U. S. 238 (1972); see D.C.Code § 22-2404 (1981), penalty for first-degree murder does not include death); Hawaii (Territory of Hawaii, Regular Session Laws, 1957, Act 282, 28th Leg., an Act relating to the abolishment of capital punishment; see Hawaii Rev.Stat., § 706-656 (Supp.1987), sentence for offense of murder does not include death penalty); Iowa (1965 Iowa Acts, ch. 435, Death Penalty Abolished; see Iowa Code § 902.1 (1987), penalties for Class A felonies do not include death); Kansas (State v. Randol, 212 Kan. 461, 471, 513 P.2d 248, 256 (1973), death penalty unconstitutional after Furman v. Georgia, supra; death penalty still on books, Kan.Stat.Ann. §§ 22-4001 - 22-4014 (1981); but see § 21-3401, first-degree murder is a Class A felony, and § 21-4501(a), sentence for a Class A felony does not include death penalty); Maine (1887 Maine Acts, ch. 133, an Act to abolish the death penalty; see Me.Rev.Stat.Ann., Tit. 17-A, §§ 1251, 1152 (1983 and Supp.1987-1988), authorized sentences for murder do not include death penalty); Massachusetts (Commonwealth v. Colon-Cruz, 393 Mass. 150, 470 N.E.2d 116 (1984), death penalty statute violates state constitution; death penalty law still on books, Mass.Gen.Laws §§ 279:57-279:71 (1986)); Michigan (Const., Art. 4, § 46, "No law shall be enacted providing for the penalty of death"; see Mich.Comp.Laws § 750.316 (Supp.1988-1989), no death penalty provided for first-degree murder); Minnesota (1911 Minn.Laws, ch. 387, providing for life imprisonment and not death as sentence; see Minn.Stat. § 609.10 (1986), sentences available do not include death penalty, and § 609.185, sentence for first-degree murder is life imprisonment); New York (People v. Smith, 63 N.Y.2d 41, 70-79, 468 N.E.2d 879, 893-899 (1984), mandatory death penalty for first-degree murder while serving a sentence of life imprisonment unconstitutional after Woodson v. North Carolina,428 U. S. 280 (1976), thus invalidating remainder of New York's death penalty statute; death penalty still on books, N.Y. Penal Law § 60.06 (McKinney 1987), providing for death penalty for first-degree murder); North Dakota (N.D.Cent.Code, ch. 12-50 (1985), "The Death Sentence and Execution Thereof," repealed by 1973 N. D. Laws, ch. 116, § 41, effective July 1, 1975); Rhode Island (State v. Cline, 121 R. I. 299, 397 A.2d 1309 (1979), mandatory death penalty for any prisoner unconstitutional after Woodson v. North Carolina, supra; see R.I.Gen.Laws § 11-23-2 (Supp.1987), penalties for murder do not include death); West Virginia (W.Va.Code § 61-11-2 (1984), "Capital punishment abolished"); Wisconsin (1853 Wis.Laws, ch. 103, "An act to provide for the punishment of murder in the first degree, and to abolish the penalty of death"; see Wis.Stat. §§ 939.50(3)(a), 940.01 (1985-1986), first-degree murder is a Class A felony, and the penalty for such felonies is life imprisonment).

[Footnote 26]

Alabama (see Ala.Code §§ 13A-5-39 - 13A-5-59, 13A-6-2 (1982 and Supp.1987)); Arizona (see Ariz.Rev.Stat.Ann. §§ 13-703 - 13-706, 13-1105 (1978 and Supp.1987)); Arkansas (see Ark.Code Ann. §§ 5-4-104(b), 5-4-601 - 5-4-617, 5-10-101, 5-51-201 (1987 and Supp.1987)); Delaware (see Del.Code Ann., Tit. 11, §§ 636, 4209 (1987)); Florida (see Fla.Stat. §§ 775.082, 782.04(1), 921.141 (1987)); Idaho (see Idaho Code §§ 18-4001 - 18-4004, 19-2515 (1987)); Louisiana (see La.Rev.Stat.Ann. §§ 14:30(C), 14:113 (West 1986); La.Code Crim.Proc.Ann., Art. 905 et seq. (West 1984 and Supp.1988)); Mississippi (see Miss.Code Ann. §§ 97-3-21, 97-7-67, 99-19-101 - 99-19-107 (Supp.1987)); Missouri (see Mo.Rev.Stat. §§ 565.020, 565.030-565.040 (1986)); Montana (see Mont.Code Ann. §§ 45-5-102, 4618-301 - 46-18-310 (1987)); Oklahoma (see Okla.Stat., Tit. 21, §§ 701.10-701.15 (1981 and Supp.1987)); Pennsylvania (see Pa.Cons.Stat., Tit. 18, § 1102(a), Tit. 42, § 9711 (1982 and Supp.1987)); South Carolina (see S.C.Code §§ 16-3-10, 16-3-20 (1985 and Supp.1987)); South Dakota (see S.D.Codified Laws §§ 22-16-4, 22-16-12, 23A-27A-1 - 23A-27A-41 (1988)); Utah (see Utah Code Ann. §§ 76-3-206, 76-3-207 (1978 and Supp.1987)); Vermont (see Vt.Stat.Ann., Tit. 13, §§ 2303, 2403, 7101-7107 (1974 and Supp.1987)); Virginia (see Va.Code §§ 18.2-31 (1988), 19.2264.2 - 19.2-264.5 (1983 and Supp.1987)); Washington (see Wash.Rev.Code §§ 10.95.010 - 10.95.900 (1987)); Wyoming (see Wyo.Stat. §§ 6-2101 - 6-2-103 (1988)).

[Footnote 27]

It is reported that a 10-year-old black child was hanged in Louisiana in 1855, and a Cherokee Indian child of the same age was hanged in Arkansas in 1885. See Streib, Death Penalty for Children: The American Experience With Capital Punishment for Crimes Committed While Under Age Eighteen, 36 Okla.L.Rev. 613, 619-620 (1983).

[Footnote 28]

See Tr. of Oral Arg. 31 (respondent suggests a minimum age of 14); post at 487 U. S. 872 (dissent agrees that some line exists); post at 487 U. S. 848 (concurrence similarly agrees).

[Footnote 29]

One might argue, of course, that petitioner's execution "could theoretically be imposed" in 19 States, see post at 487 U. S. 864 (dissenting opinion), just as execution was permissible above the age of 7 in Blackstone's time. Ibid. This argument would, though, first have to acknowledge that the execution would be impermissible in 32 States. Additionally, 2 of the 19 States that retain a death penalty without setting a minimum age simply do not sentence people to death any more. Neither South Dakota nor Vermont has imposed a death sentence since our landmark decision in Furman v. Georgia,408 U. S. 238 (1972). See Greenberg, Capital Punishment as a System, 91 Yale L.J. 908, 929-936 (1982); NAACP Legal Defense and Educational Fund, Inc., Death Row, U.S.A. (1980-1987). (Vermont is frequently counted as a 15th State without a death penalty, since its capital punishment scheme fails to guide jury discretion, see Vt.Stat.Ann., Tit. 13, §§ 7101-7107 (1974), and has not been amended since our decision in Furman v. Georgia, supra, holding similar statutes unconstitutional. South Dakota's statute does provide for jury consideration of aggravating and mitigating factors. See S.D.Codified Laws, ch. 23A-27A (1988)). Thus, if one were to shift the focus from those States that have expressly dealt with the issue of minimum age and toward a general comparison of States whose statutes, facially, would and would not permit petitioner's execution, one would have to acknowledge a 2:1 ratio of States in which it is not even "theoretically" possible that Thompson's execution could occur.

[Footnote 30]

California (Cal.Penal Code Ann. § 190.5 (West 1988)) (age 18); Colorado (Colo.Rev.Stat. § 16-11-103(1)(a) (1986)) (age 18); Connecticut (Conn.Gen.Stat. § 53a-46a(g)(1) (1985)) (age 18); Georgia (Ga.Code Ann. § 17-9-3 (1982)) (age 17); Illinois (Ill.Rev.Stat., ch. 38,

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